Supreme Court gives whistleblowers additional protection

In Royal Mail Group Ltd (Respondent) v Jhuti (Appellant) [2019] UKSC 55 Kamaljeet Jhuti succeeded in the Supreme Court after a lengthy claim against Royal Mail first brought in September 2013.

Employers, particularly those where there are potential public interest concerns must take note of this ruling and ensure that they are not (inadvertently or otherwise) found to be hiding behind an invented reason for dismissal.

Ms Jhuti was employed as a media specialist in the Royal Mail’s MarketReach unit. She raised concerns during her trial period about a colleague who she thought to be breaching company policy by offering incentives to existing customers. These were ‘protected disclosures’ under section 43A of the Act, commonly described as whistleblowing.

The court found that her line manager’s response to the allegations raised was to try and force her out of her role by creating a false picture of her performance, in emails and otherwise, including suggestions that her performance was inadequate and also bullying her.

Another manager was then asked to review Ms Jhuti’s allegedly inadequate performance and on the basis of their review was then sacked in July 2014. The reviewing manager was not told of Ms Jhuti’s concerns or complaints that her manager had "a grudge" against her.

Despite the decision to sack her made "in good faith", the Supreme Court ruled that Ms Jhuti had been unfairly dismissed. Lord Wilson held that, where a more senior employee decides someone "should be dismissed for a reason but hides it behind an invented reason which the decision-maker adopts, the reason for the dismissal is the hidden reason rather than the invented reason".

Employers should take note that they cannot rely on a particular manager's lack of knowledge as a defence, however innocent", which "inevitably increases an employer's exposure to retaliatory actions by a rogue line manager".

Francesca West, chief executive of whistleblowing charity Protect, said: "This judgment is a step in the right direction for employers to have to tread with caution where there is a background of public interest concerns and a need to protect the whistleblower.

Posted on 4 December, 2019 by Ortolan

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