Royal Mail Group Ltd v Jhuti

Michaelmas Term

[2019] UKSC 55

On appeal from: [2017] EWCA Civ 1632

JUDGMENT

LORD WILSON: (with whom Lady Hale, Lord Carnwath, Lord Hodge and Lady Arden agree)

Question

1.                  Section 103A of the Employment Rights Act 1996 (“the Act”) provides:

“An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.”

In this appeal the dispute surrounds the reason for the dismissal of Ms Jhuti, the appellant, from her employment by Royal Mail Group Ltd (“the company”). As I will explain, the facts found by the employment tribunal (“the tribunal”) show that

(a)       Ms Jhuti made protected disclosures within the meaning of section 43A of the Act, colloquially described as whistleblowing, to her line manager;

(b)       the line manager’s response to her disclosures was to seek to pretend over the course of several months that Ms Jhuti’s performance of her duties under her contract of employment with the company was in various respects inadequate;

(c)       in due course the company appointed another officer to decide whether Ms Jhuti should be dismissed; and

(d)       having no reason to doubt the truthfulness of the material indicative of Ms Jhuti’s inadequate performance, the other officer decided that she should be dismissed for that reason.

So what was the reason for Ms Jhuti’s dismissal? Was it that her performance was inadequate? Or was it that she had made protected disclosures? These specific questions generate the following question of law of general importance which brings the appeal to this court:

In a claim for unfair dismissal can the reason for the dismissal be other than that given to the employee by the decision-maker?

Facts

2.                  On 17 September 2013 the company employed Ms Jhuti as a media specialist in its MarketReach unit under a contract terminable by either side on three months’ notice. But the contract provided that, for the first six months, she would be on trial and that, if she failed it, the company could dismiss her on one week’s notice. The unit had two teams. Ms Jhuti was assigned to Mr Widmer’s team. The role of a media specialist in the company is to promote the use of mail by businesses engaged in marketing activities. Ms Jhuti had previously worked at a senior level in the media industry.

3.                  On 16 October 2013 Ms Jhuti was shadowing Ms Mann. Ms Jhuti formed the view that Ms Mann was or might be infringing Ofcom’s guidance, reflected in the company’s own policy, in respect of “Tailor-Made Incentives” (“TMIs”). The company’s…