Rogue Employees and the
Adam Gould reviews the recent case of Royal Mail Ltd v Kamaljeet Jhuti  EWCA Civ 1632, in which the Court of Appeal ruled that, in determining the reason for a dismissal, the ET need only consider the mental process of the decision maker.
During the course of her employment with the Respondent, the Claimant (C) observed apparent irregularities which she believed amounted to a breach of OFCOM guidance. C reported her concerns to her immediate line manager, Mr Widmer (W), but was put under great pressure by W to withdraw her allegations. C withdrew her complaint via email and apologised for “having got her wires crossed”.
In the months that followed, W was increasingly critical of C’s performance and imposed targets and requirements which, in C’s view, were harsh and unreasonable and arose in consequence of her previous allegations. C complained to the HR department. Thereafter, arrangements were made for C to be managed by W’s superior, Mr Reid (R). R extended C’s probationary period and held a meeting with C, during which C raised a grievance about her treatment by W. C was signed off work by her GP two days after the meeting, suffering from work-related stress. She never returned to work.
The Head of Sales Operations, Ms Vickers (V), was given the responsibility of resolving C’s future with Royal Mail. V had not had any prior involvement with C’s management. V was sent a file of emails passing between C and W, though this did not include C’s email making the above allegations. V was led (“manipulated”) by W to believe that reason for the proposed termination was entirely her unsatisfactory performance when in fact it was tainted by her protected disclosures. V made the decision to dismiss C and was unaware of the protected disclosures.
V took the decision to dismiss C. In a letter setting out the reasons for the dismissal, it was clear the reason for the termination was squarely unsatisfactory performance. C appealed the decision, but the appeal officer, Ms Madden, stated that she accepted W’s account vis-à-vis the OFCOM allegations.
In short, the ET’s findings were as follows:
- Protected disclosures: C’s allegations constituted protected disclosures.
- Detriment: C suffered four specific detriments on the ground that she had made protected disclosures. The first two pertained to C’s treatment by W, namely:
- Being bullied, harassed and intimidated by W, who imposed mandatory weekly one-to-one meetings and targets solely on C;
- Being served with a document entitled “Performance Plan Objectives” by W on the basis that it was a condition of her passing her probation that C complete the same. The remaining two concerned offers made to C by Ms Rock in an attempt to terminate her employment by consent.
3.Time Limit: Royal Mail’s assertion that the detriment was out of time was rejected.
4. Dismissal: “The protected disclosures were not the reason for the Claimant’s dismissal, because they did not affect the mental process of Ms Vickers (or Ms Madden)”. The claim under section 103A therefore failed. However, that did not necessarily prevent the Claimant from recovering for the losses caused by the dismissal on the basis that such losses were a consequence of the earlier unlawful detriments.
Royal Mail appealed to the EAT on two grounds, the first pertaining to the limitation point and the second the finding that because C’s claim succeeded under s.47B, she could claim post-termination losses that flowed from the proven detriments in any event. C cross-appealed against the dismissal of her claim under s.103A.
The cross-appeal was allowed. As such, the issues raised by Royal Mail’s appeal effectively “fell away”. Mitting J’s reasons for allowing the cross-appeal, in short, were that the ET was wrong to treat the s.103A issue as being decided by CLFIS v Reynolds (in which it was held that a claim for discrimination against a dismissing officer should be decided by considering the motivation of that person alone) because the statutory schemes as regards discrimination and whistleblower dismissals are different. Accordingly, it was held that the reasons and motivation of both V and W must be taken into account; the inevitable consequence of which being that the dismissal occurred in consequence of C making prohibited disclosures principally to W.
Court of Appeal
Underhill LJ overturned the EAT’s findings. He held that the “reason”, for the purposes of s.98, should be determined by reference to the mental process of the particular person (or persons) responsible for the decision. He noted that, “It would be incoherent and unworkable if, in deciding – as the reasonableness questions requires – what beliefs were (reasonably) held or facts (reasonably) known by the employer, it were permissible to look at the mental processes of a different person”.
As for the manipulation by W, Underhill LJ observed that where an individual’s line manager procures their dismissal by presenting false evidence by which the decision-taker is innocently misled, but does not himself have responsibility for the dismissal, he could see the force in attributing the manipulator’s motivation to the employer. However, that argument had been rejected by the Court in a previous case (Orr v Milton Keynes Council  EWCA Civ 62) and was not, therefore, open for the Court to accept. On the other hand, if the manipulator was the CEO there may well be an argument for distinguishing the actions of a manager in such a senior positon from those of a line manager. Accordingly, Underhill LJ concluded that, notwithstanding W’s conduct, his motivation could not be attributed to Royal Mail because it was not shared by the person deputed to take the dismissal decision.
Notably, it was observed that C was not precluded from advancing a claim under s.47B(1B) because she had not pleaded reliance on the same. Rather, it was sufficient that C had pleaded acts of detriment done by W, which the tribunal found to be proved. However, it was noted that C could have identified the communication of W’s tainted views to V as a specific detriment; though C’s omission in this regard was not fatal.
In identifying the “reason” for dismissal, the Tribunal will have regard to the motivation of the decision-taker(s) only. The actions of “dismissal procuring” employees will not, save in limited circumstances, be attributed to the employer.
A claimant will not be precluded from relying on s47B(1B) to recover losses arising in consequence of their dismissal, were the dismissal is a consequence of a specific detriment. However, care should be taken to identify the detriment relied upon and ensure that the same is pleaded explicitly.
Interestingly, in the subsequent EAT case of Metropolitan Police v Denby it was held that the CLFIS principle should not be used as a means of sidestepping liability by deliberately opaque decision-making which masks the identity of the true decision-maker.