Dismissal can be automatically unfair even if protected disclosure not known about by decision maker

In Royal Mail Group Limited v Jhuti, Ms Jhuti believed that a colleague had breached their employer’s rules and also the requirements of their legislator. She emailed her team leader, Mr Widmer, to inform him of her suspicions. Mr Widmer suggested that she did not understand the rules and advised her to withdraw her allegations which she did. Mr Widmer began to set her unachievable tasks and monitored her progress weekly. She was asked to produce a list of key clients from her previous employment. She believed this would breach the law and she contacted HR several times to complain.

Ms Jhuti went off sick and raised a grievance. Another manager was asked to review Ms Jhuti’s case, excluding the grievance. Nothing was said to the manager about the disclosures and Ms Jhuti was not spoken to. Mr Widmer merely commented that she had misunderstood and in any event revoked her allegations. Ms Jhuti was dismissed on grounds of poor performance and her appeal was rejected. At the employment tribunal, Ms Jhuti claimed automatic unfair dismissal as a result of making a protected disclosure. The employment tribunal found that she had been subjected to a detriment but was not automatically unfairly dismissed as the manager who dismissed her was not aware of the disclosure and genuinely believed in her poor performance.

Ms Jhuti appealed to the EAT who held that the employment tribunal had been wrong to rely on a discrimination case precedent which suggested that there could only be an automatic unfair dismissal if the person dismissing had herself been motivated by the protected disclosures. The EAT stated that instead, the tribunal should have focused on the reason for the dismissal. The decision of the manager in ignorance which was manipulated by someone in another managerial position responsible for the employee who was aware of the facts can be attributed to their employer.

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