The Supreme Court has allowed the appeal in Royal Mail Group Ltd -v- Jhuti [2019] UKSC 55 and has held unanimously that when deciding what was the reason for dismissal in unfair dismissal, it may not be enough simply to consider what was subjectively in the mind of the decision-maker. In a unanimous decision delivered by Lord Wilson (Lady Hale (President), Lord Carnwath, Lord Hodge and Lady Arden concurring) the Supreme Court has held that where the real reason is hidden from the decision-maker behind an invented reason, the court must penetrate through the invention and decide upon the basis of the real reason [paragraphs 60-62 of the Judgment].
Ms Jhuti was dismissed by Royal Mail Group, ostensibly for poor performance, but she had made ‘protected disclosures’ under section 43A of the Employment Rights Act 1996 during her trial period and she believed that her ‘whistleblowing’ was the real reason for her dismissal. It was found as a fact that, after making the disclosures, her line manager created a false suggestion in emails and otherwise that her performance was inadequate. He also bullied her. Having raised the issue of her performance, the company appointed another employee to consider whether Ms Jhuti’s performance merited dismissal. By the time that decision was reached Ms Jhuti had been signed off work for work-related stress, anxiety and depression and was unable to present her case to the decision-maker in meetings or otherwise. The manager had no reason to doubt the evidence of poor performance and reached a genuine decision to dismiss her for that reason.
Ms Jhuti brought two complaints in the employment tribunal. The first complaint (which was not the subject of the Supreme Coiurt decision) was concerned with detriments short of dismissal on the grounds of her whistleblowing, contrary to section 47B(1) of Employment Rights Act 1996, The second complaint was that her dismissal was automatically unfair under section 103A of the Act, which provides that a dismissal is unfair ‘if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure’.
The tribunal dismissed this second complaint, because it considered the reason for dismissal only on the basis of the subjective decision of the dismissing manager, who had a genuine belief that her performance had been inadequate and had dismissed for that reason. The Employment Appeal Tribunal reversed that decision, holding that the reason for dismissal was the making of the protected disclosures. The Court of Appeal allowed the company’s appeal against the EAT’s decision on the basis that when considering the reason for dismissal, the Employment Tribunal was only obliged to consider the thought processes of the employer’s authorised decision-maker. Ms Jhuti appealed to the Supreme Court.
The Supreme Court unanimously allowed Ms Jhuti’s appeal. It noted that the words in s.103A ‘the reason (or, if more than one, the principal reason) for the dismissal’ also appear in Part X of the Act, including in section 98, the general provision for unfair dismissal. In so doing, it made it clear that its decision applied not only to a claim for automatic unfair dismissal under s.103A, but also to a claim for ‘ordinary’ unfair dismissal. Although the decision is of wide impact, the Supreme Court was careful to point out that the circumstances of finding that there was a hidden true reason for the dismissal will be unusual and will only apply in very few cases [Paragraphs 40-41 of the Judgment].
The Court of Appeal had considered that it was bound by its own earlier decision in Orr -v- Milton Keynes Council [2011] EWCA Civ 62, [2011] ICR 704 that, when an employee’s line manager hides the real reason behind a fictitious reason, the fictitious reason is to be taken as the reason for dismissal if it had been adopted in good faith by the decision-maker. In other words, it was only the subjective knowledge of the decision-maker which fell to be attributed to the employer for the purposes of section 98. The Supreme Court held that, for various reasons, Orr was not a suitable vehicle for the articulation of principle; nor were its facts comparable to those in the present case [Paragraphs 50-53 of the Judgment]. Accordingly, it had no difficulty in reaching a different decision.
The position following the Supreme Court’s judgment is now quite clear: When considering the reason for a dismissal, the Employment Tribunal will normally only need to consider the subjective mental processes undertaken by the final decision-maker when reaching the decision to dismiss. However, if there is evidence that the true reason for dismissal is one which has been hidden from the decision-maker behind an invented reason, the Employment Tribunal must penetrate through the fictitious reason to determine what was the real operative reason for the dismissal.
Written by Antony Sendall
