In Royal Mail Group v Jhuti, Jhuti (J) sent an email to her line manager, Widmer (W), stating that a colleague had acted in breach of Royal Mail’s rules and its regulator, Ofcom. W questioned J’s understanding of the rules, suggested that it would be better if she admitted that she had made a mistake and advised her to send a retracting email.  She agreed to do so.

W then required J to attend weekly meetings with him to monitor her progress. Along with preparation and travelling, these meetings took about 1½ days out of her working week. W also set J an ever changing unattainable list of requirements which she took to be an attempt to drive her out of her job. 

J complained to HR of harassment and bullying because of her disclosures.  She was then supervised by another manager and subsequently offered three months’ pay and then one year’s pay to leave, which she declined. J was then dismissed by Vickers (V) for not meeting the standards required in her role and being unlikely to do so. J claimed automatically unfair dismissal for having made protected disclosures.

An employment tribunal held that J had made protected disclosures. It also found that W’s actions amounted to setting her up to fail because of those disclosures. However, given the information provided by W it was inevitable that V would dismiss J because she genuinely believed J was a poor performer; the fact that J had made protected disclosures was not part of V’s reasoning. Therefore, the dismissal was not unfair.

The EAT upheld J’s appeal. In an unfair dismissal case, the reason for dismissal is the set of facts known to the employer, or the beliefs held, which caused the employee to be dismissed. In this case, it was not only V’s mind which needed to be examined to determine the reason for dismissal.  W’s reasoning and motivation also had to be taken into account.  V, who took the decision to dismiss, was misled by W, who engineered J’s dismissal. As the ET found it was inevitable that dismissal would occur, then that was a direct result of W’s treatment of J because she had made prohibited disclosures – that was the reason.

This ruling extends the test for determining the reason for dismissal. It means that not only will the decision maker’s reasons for dismissal be examined, but there will also be an examination of the motives of those whose evidence or advice contributed to the decision being made. Where a ‘contributor’ has improper motives, including deliberately misleading the decision maker, then that becomes part-and-parcel of the reason for dismissal and can make it unfair.

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