In Royal Mail Group v Jhuti, J reported to W that there had been a breach of Royal Mail’s rules and its regulators requirements. W advised her to admit that she was mistaken, which she did fearing she would lose her job. W then set J an “ever changing unattainable list of requirements”. J was dismissed by another manager, V, for poor performance. V knew nothing about the public interest disclosures.
The Court of Appeal held that there could be certain situations where, if a manager had manipulated the facts, and the dismissing officer was unaware, that motivation could be attributed to the employer, thereby making the reason for dismissal whistleblowing and automatically unfair. However, in the specific circumstances of this case the ET was only obliged to consider the mental processes of the employer’s authorised decision-maker.
The Supreme Court disagreed. In searching for the reason for a dismissal, courts need generally look only at the reason given by the decision-maker. But where the real reason is hidden from the decision-maker behind an invented reason, the court must penetrate through the invention. If a person in the hierarchy of responsibility above the employee determines that she should be dismissed for one reason (whistleblowing) but hides it behind an invented reason (poor performance) which the decision-maker adopts, the reason for the dismissal is the hidden reason rather than the invented reason.