When considering whether a dismissal is an automatically unfair “whistleblowing” dismissal, is it permissible to consider the mental processes of anyone other than the decision-taker? In particular, what if the decision-taker was “manipulated” by another of the Respondent’s employees?

“No (in the circumstances)”, said the Court of Appeal in Royal Mail Ltd v Jhuti [2017] EWCA Civ 1623.

Jhuti was a case in which the Claimant had been dismissed on grounds of capability, but had alleged that the dismissal was due to her having made protected disclosures to another employee, one Mr Widner, and was therefore automatically unfair.

The overall suggestion was that Mr Widner, although neither himself the investigator nor the decision-taker, had manipulated the decision. During the course of the process leading up to her dismissal, Mr Widner had supplied certain documents to the Respondent’s HR department, which were then passed to the decision-taker. The decision-taker had put queries to Mr Widner (albeit not sufficient to make him an investigator in the process). The Tribunal had found that Mr Widner’s actions had made it “inevitable” that Ms Vickers would dismiss the Claimant.

The Court began by observing that for the test under s 98 Employment Rights Act 1996 (i.e. unfair dismissal) the tribunal is obliged to consider only the mental processes of the person or persons who was or were authorised to, and did, take the decision to dismiss. Section 103A provides that a dismissal is automatically unfair if the reason (or principal reason) for the dismissal is that the employee made a protected disclosure (i.e. a “whistleblowing” dismissal). The two sections should attract the same treatment.

Where someone with no relevant managerial responsibility for the victim procures his or her dismissal by presenting false evidence by which the decision-maker is innocently (and reasonably) misled, the dismissal is not unfair: the employee “has no doubt suffered an injustice at the hands of the Iago figure and may have other remedies … but the employer has not acted unfairly” (para 60).

Where the manipulator is the victim’s line manager but does not have responsibility for the dismissal, the manipulator’s motivation cannot be attributed to the employer (as a matter of law – see Orr v Milton Keynes).

 So even if Mr Widner’s conduct had amounted to a deliberate attempt to procure the Claimant’s dismissal because she had made a protected disclosure, that motivation could not be attributed to the Respondent as the employer, because that motivation was not shared by Ms Vickers, who was the person deputed to make the dismissal decision.

The Court commented that, although it might at first sight seem wrong that there would be no liability for unfair dismissal in such circumstances, there was an important point of principle here: the statutory right not to be unfairly dismissed depends on there being unfairness on the part of the employer. So even unlawful conduct on the part of individual colleagues is immaterial unless it can be properly attributed to the employer.

Whether or not that point sits well with the approach to other claims (harassment, discrimination arising from disability, etc) is (it is submitted) another matter.

The situation might be different if the manipulator were someone sufficiently high in the management hierarchy. The Court expressly declined to give a view, but there remains room for argument that, in such a situation, the manipulator’s influence might be imputed to the employer.

The Court in Jhuti aso went on to consider whether losses occasioned by a claimant’s dismissal may be recoverable as compensation for an unlawful detriment which caused the dismissal (despite the effect of s 47B(2) ERA 1996 which is to exclude dismissal from the list of potential detriments). Underhill LJ commented that (at para 79) the subsection operates to preclude a claim where the detriment “amounts to a dismissal”. The decision in CLFIS v Reynolds indicated that in the context of an age discrimination claim the losses occasioned by dismissal might be recovered as compensation for an unlawful detriment which caused the dismissal. And the Court could see “no reason in principle” for adopting a different approach in a case of whistleblower discrimination.

That was all said in the context of what was, essentially, an argument about pleadings – i.e. whether the Claimant was precluded by the way in which her claim had been put in the ET from advancing a claim for losses occasioned by her dismissal as compensation for the unlawful detriments found under s 47B. But the Court’s observations are clearly significant and may doubtless be relied upon in future.