Protection for whistle-blowers continues to hit the headlines and we’re certainly seeing a significant increase in such cases. There are some significant challenges in dealing with the technical aspects and the potential for large damages awards, even for relatively short-serving employees means that the cases can pose real risk for businesses if not managed effectively.
The decision in Royal Mail Group Limited v Jhuti is the latest in this developing area of law. Not accepting the given reason for dismissal the Supreme Court was prepared to look behind it and held that the dishonest actions of the employee’s line manager should be scrutinised when considering the fairness of the dismissal. Although the decision to dismiss had been made in good faith by the hearing manager concerned, it had been tainted by the line manager’s attempts to cover up her disclosures.
The Royal Mail employee was a whistle-blower, who had made protected disclosures under Section 43A of the Employment Rights Act 1996 (ERA). Her line manager’s response was to allege that her performance was inadequate. Bullying which she suffered at the line manager’s hands resulted in her being signed off work, suffering from work-related stress, anxiety and depression. Another manager (the decision-maker) was appointed to consider whether Ms Jhuti should be dismissed. She was, due to her condition, unable to present her case so that the decision-maker, who acted entirely in good faith, had no reason to doubt the truthfulness of material which had been fabricated by the line manager. The employee was dismissed on grounds of inadequate performance.
In rejecting her claim of automatic unfair dismissal under Section 103A of the Act, an Employment Tribunal found that the decision-maker had held a genuine belief that her performance was inadequate and that, therefore, was the reason for her dismissal. That ruling was reversed by the Employment Appeal Tribunal and subsequently reaffirmed by the Court of Appeal.
There are a wide range of the types of disclosure which may be protected and if you have concerns about a possible whistle-blowing issue please get in touch.