https://www.thetimes.co.uk/article/hidden-reason-for-employees-dismissal-applicable-to-claim-ft3k2lb2p?shareToken=73c2a76cf28c96a30b6ce44f8401666aHidden reason for employee’s dismissal applicable to claim
Published: January 6, 2020Royal Mail Group Ltd v Jhuti
Before Baroness Hale of Richmond, Lord Wilson, Lord Carnwath, Lord Hodge and Lady Arden  UKSC 55 Judgment: November 27, 2019
If a person in the hierarchy of responsibility above an employee determined that the employee should be dismissed for one reason but hid it behind another invented reason, which the decision-maker in good faith adopted, the reason for the dismissal was the hidden reason rather than the invented reason.
The Supreme Court so held in allowing an appeal by the employee, Kamaljeet Jhuti, against the decision of the Court of Appeal (Lord Justice Jackson, Lord Justice Underhill and Lord Justice Moylan) ( ICR 982), which reversed the decision of the Employment Appeal Tribunal (Mr Justice Mitting) ( ICR 1043) and affirmed the rejection by an employment tribunal sitting at London Central on November 11, 2015, of the employee’s claim against the company, Royal Mail Group Ltd, for dismissal on the ground of making a protected disclosure, pursuant to section 103A of the Employment Rights Act 1996, as inserted by section 5 of the Public Interest Disclosure Act 1998.
Mr Sean Jones, QC, and Mr Matthew Jackson for the employee; Mr Simon Gorton, QC, and Mr Jack Mitchell for the company.
Lord Wilson, with whom the other members of the court agreed, said that the facts found by the employment tribunal showed that:
(a) The employee made protected disclosures within the meaning of section 43A of the 1996 act, as inserted by section 1 of the 1998 act, colloquially described as “whistleblowing”, to her line manager;
(b) The line manager’s response was to seek to pretend over several months that the employee’s performance was inadequate;
(c) In due course the company appointed another officer to decide whether the employee should be dismissed; and
(d) Having no reason to doubt the truthfulness of the material indicative of the employee’s inadequate performance, that officer decided that she should be dismissed for that reason.
So what was the reason for her dismissal? Was it that her performance was inadequate? Or was it that she had made protected disclosures? Those questions generated the following question of law of general importance: in a claim for unfair dismissal could the reason for the dismissal be other than that given to the employee by the decision-maker?
The tribunal found that the disclosures had played no part in the reasoning of the decision-maker who, albeit by reference to evidence which was hugely tainted, genuinely believed that the employee’s performance had been inadequate and who had dismissed her for that reason.
The question was whether the tribunal had correctly identified “the reason (or, if more than one, the principal reason) for the dismissal” within the meaning of section 103A of the 1996 act.
However, the court’s answer to that question had to relate equally to the other sections in Part X of the act in which the same words appeared. At first sight, therefore, the question seemed to be of wide importance. On the other hand, the facts of the present case were extreme. Instances of decisions to dismiss taken in good faith, not just for a wrong reason but for a reason which the employee’s line manager had dishonestly constructed, would not be common.
The need to discern a state of mind, such as the reason for taking action, on the part of an inanimate person, namely a company, presented difficulties in many areas of law. They were difficulties of attribution: which human being was to be taken to have the state of mind which fell to be attributed to the company? The nature of the task was context-dependent. The context of the present case was a search for the reason for a company’s dismissal of an employee.
In enacting section 103A parliament clearly intended to provide that, where the real reason for dismissal was that the employee had made a protected disclosure, the automatic consequence should be a finding of unfair dismissal.
But was the meaning of the section, to be collected from its language construed in the light of its context and purpose, that, when the employee’s line manager deliberately hid the real reason behind a fictitious reason, the latter was instead to be taken as the reason for dismissal if adopted in good faith by the decision-maker on the company’s behalf?
The task, mandated by section 103A, was to determine whether the tribunal properly identified the reason for the employee’s dismissal. The company was right to object to any “stretching” of that word. On the other hand the court should approach the problem in a broad and reasonable way in accordance with industrial realities and common sense.
In searching for the reason for a dismissal for the purposes of section 103A, and indeed of other sections in Part X, courts needed generally to look no further than at the reasons given by the appointed decision-maker.
Unlike the present employee (who at the time of the decision to dismiss was signed off work due to illness), most employees would contribute to the decision-maker’s inquiry. The employer would advance a reason for the potential dismissal. The employee might well dispute it and might also suggest another reason for the employer’s stance. The decision-maker would generally address all rival versions and, if reaching a decision to dismiss, would identify the reason for it.
In the present case, however, the reason for the dismissal given in good faith by the decision-maker turned out to have been bogus.
If a person in the hierarchy of responsibility above the employee (in the present case, the employee’s line manager) determined that, for reason A (in the present case, the making of protected disclosures), the employee should be dismissed but that reason A should be hidden behind an invented reason B which the decision-maker adopted (in the present case, inadequate performance), it was the court’s duty to penetrate through the invention rather than to allow it also to infect its own determination.
If limited to a person placed by the employer in the hierarchy of responsibility above the employee, there was no conceptual difficulty about attributing to the employer that person’s state of mind rather than that of the deceived decision-maker.
There was no need to remit to the tribunal an issue whether, upon the proper attribution to the company of the line manager’s state of mind, the reason for the employee’s dismissal was that she had made the protected disclosures. Although the tribunal had considered it necessary to address the state of mind only of the decision- maker, it had made findings determinative of that issue in favour of the employee.
The answer to the question of law was therefore that, if a person in the hierarchy of responsibility above the employee determined that she should be dismissed for a reason but hid it behind an invented reason which the decision- maker adopted, the reason for the dismissal was the hidden reason rather than the invented reason.
Solicitors: Rainer Hughes, Shenfield; Weightmans LLP, Liverpool.