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Tainted Dismissal Case - Whistle-blowers

The case of Royal Mail v Jhuti is a recent example of a “Tainted Dismissal” case. That is one where the employee loses their job as a result of the negative motivation of a work colleague or manager which has prompted false allegations, but where the manager who made the decision to dismiss is not aware of the negative motivation, and accepts the allegations are true.

In this case, Ms Jhuti reported to her manager that colleagues were offering incentives in breach of OFCOM guidelines. This constituted making a “Protected Disclosure”, i.e. whistleblowing.  As a result of her report, her manager persuaded her to withdraw the allegations and then became critical of her performance and imposed targets and requirements for improvement resulting in an extension of her probationary period. Following a period of sickness absence she was dismissed on the basis that she was unlikely to achieve the standards expected of her role.

As she hadn't been employed for 2 years she could not bring a claim for unfair dismissal. However, she brought her claim on the basis that she was dismissed for having made a protected disclosure, where there is no “qualifying period” necessary for an employee to be able to bring a claim. If Ms Jhuti could demonstrate that she was dismissed for having made a protected disclosure then the dismissal would be deemed automatically unfair.

However, the Tribunal found that the protected disclosure was not the reason for her dismissal because that did not affect the mental process of the dismissing officer. The reason for her dismissal was the dismissing officer's honest belief that she was not up to the requirements of her role.

When referred to the Court of Appeal, this decision was upheld but the court went on to say that as Ms Jhuti had brought a claim alleging that the original manager had subjected her to a detriment for having made a protected disclosure, she could claim her losses arising from her dismissal on the basis that the action of the original manager caused her to lose her job.

This is a reminder that when identifying the reasons for a dismissal in an unfair dismissal case, the Employment Tribunal will consider the mental process of the person who took the decision to dismiss rather than the motivation of other employees who might be responsible further back in the chain of events although it will be necessary to demonstrate that the decision maker was not tainted by these motivations.

For more information please contact Nicola Gray or Martin Sinclair, or call 01224 632464.

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