In this case, the Royal Mail’s decision maker in a performance-related dismissal was not aware that the performance issues had really been retaliation for a whistleblowing complaint. The dismissal was perfectly justified from the decision maker’s point of view, however. Find out why the EAT was willing to look behind this.

Background

The Claimant in this case, Ms Jhuti, had raised some issues with her manager about suspected breaches of the requirements of Ofcom, the Royal Mail’s regulator, by a member of the team.

Ms Jhuti’s manager, Mr Widmer, advised Ms Jhuti to admit she had made a mistake and to retract the allegation by email. Ms Jhuti was upset and fearful that she may lose her job if she did not, so sent the email retracting the allegation.

From there on, however Mr Widmer implemented a performance plan for Ms Jhuti, which included an “ever changing unattainable list of requirements”. Ms Jhuti complained to HR that she was being harassed and bullied because of the disclosure she had made, but her performance was referred to another Royal Mail manager, Ms Vickers for disciplinary action.

The Employment Appeal Tribunal concluded that Ms Vickers had discussed the matter with Mr Widmer. However, Mr Widmer only mentioned the whistle blowing disclosure very briefly, and said that it had been retracted. Ms Vickers therefore went on to terminate Ms Jhuti’s employment for poor performance. The EAT decided that even though Ms Vickers had genuinely believed that Ms Jhuti was a poor performer, the issue to be determined was whether or not the whistle blowing had been “the reason (or, if more than one, the principal reason) for the dismissal”.

In this case it was highly relevant that Mr Widmer had set up a “paper trail which set her to fail”, and that he had deliberately, as the Appeal Tribunal found, misled Ms Vickers about the whistle blowing disclosures. Therefore the dismissal had been unfair.

Implications

Disciplinary and performance decision makers will need to be careful to take a critical view of any evidence they are given during their investigations, to make sure they are not unwittingly being manipulated. Of course, this may prove to be a difficult, if not impossible task, leaving employers in a potentially very difficult position as a result of this case.

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Updates: For employers: Dismissing staff | For employees: Bullying and harassment | Unfair dismissal |

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