Fri 13 Dec 2019

When the reason for dismissal isn't the reason for dismissal

The Supreme Court has considered a case where a manager manipulated the dismissal of an employee for underperformance after she had made a protected disclosure.

Usually when a tribunal considers whether a dismissal is fair or unfair it is only the facts that are known to the decision maker that will be relevant in that assessment.  However, in Royal Mail Group Limited v Jhuti the Supreme Court found itself considering a case where the real reason for dismissal had been hidden from the manager taking the decision to dismiss.

Those circumstances arose after the claimant made protected disclosures to her line manager, Mr Widmar.  Mr Widmar's response was to seek to pretend over the course of several months that the Claimant's performance at work was inadequate.  A more senior manager, Ms Vickers, was appointed to decide whether to terminate the claimant's employment.  On the basis of the information Ms Vickers was given she concluded, in good faith,  that the claimant had failed to meet the performance standards required of her and that it was unlikely she would do so in the future.  The claimant was dismissed and unsuccessfully appealed the decision.  She then brought claims for both detriment and automatically unfair dismissal.

In the employment tribunal the claimant succeeded in respect of the detriment claim but the dismissal claim was dismissed.  The tribunal concluded that the protected disclosures played no part in the reasoning of Ms Vickers who genuinely believed the claimant's performance had been inadequate.  Despite this they observed that dismissal was inevitable given the actions of Mr Widmar in inventing the poor performance. 

The EAT allowed an appeal by the claimant finding that if someone in a managerial position had manipulated a decision to dismiss, then that manipulator's reason could be attributed to the employer as the reason for the dismissal.  In other words, it was the protected disclosure and not the alleged under performance that was the reason for the dismissal and therefore the dismissal was automatically unfair.  The Court of Appeal though overturned the EAT's decision holding that the tribunal must consider only the mental processes of the person who took the decision to dismiss - that being Ms Vickers.  On that basis there was no automatically unfair dismissal.

The claimant appealed to the Supreme Court who concluded that, in the circumstances of this case, it was the court's duty to "penetrate through the invention rather than allow it to infect its own determination".  In other words, the reason for dismissal was that of Mr Widmar and not Ms Vickers who had, in good faith, dismissed for poor performance.

On the face of it this case sets a precedent in both automatically unfair dismissal and ordinary unfair dismissal cases for courts and tribunals to attribute to an employer a "hidden" reason for dismissal arising from a decision taken by someone other than the dismissing officer.  However, cases where a decision maker decides in good faith to dismiss for a reason which has been fabricated by a line manager will be rare. It will also most likely require strong evidence that such foul play has taken place before a tribunal will look beyond the state of mind and thought process of the individual who takes the decision to dismiss.

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