Chesterton v Nurmohamed

Season’s Greetings! It’s the countdown to Christmas and this is actually your final case law update of the year with next week’s newsletter being the final update of 2019. For anyone who has read every update this year, thank you and well done. A guide of alternative hobbies will also be working its way to you.

Having spent the past few weeks looking at unfair dismissal and disciplinary procedures, this week we are looking at whistleblowing. Given it is the postal service’s busiest season, it is rather apt that this week’s case concerns Royal Mail.

This case is one we have already covered at EAT level but has since been heard in the Supreme Court. The question in this case is:

Can a dismissal by an independent manager be unfair if the dismissing officer was provided false information about the real reason for dismissal?

This case is rather apt given the amount of fake news flying about during the general election. The facts can be found in our previous coverage of the case but are briefly summarised below.

Ms Jhuti, the Claimant made protected disclosures early in her employment that Royal Mail Group, the Respondent, had breached its own sale procedures when a client was given a special incentives deal.

After making this disclosure she received less preferential sales leads and also was subjected to much criticism and performance management from her line manager. When the manager was on annual leave, the Claimant’s performance improved as the cover manager set fairer targets and assigned leads evenly.

The Claimant raised a grievance about the issue but this was quashed. The Claimant was then dismissed but the dismissing officer was unaware of the grievance or the disclosures having only been supplied with misleading performance evidence by the Claimant’s manager.

The Claimant initiated an Employment Tribunal claim for whistleblowing which was dismissed. The EAT overturned this before being overturned again at the Court of Appeal. However, the Supreme Court allowed the appeal. Thankfully this is the highest court in the land and there can be no further appeals!

The Supreme Court held that the reason for the dismissal was not the real reason given to the dismissing officer. The real reason was the Claimant making protected disclosures and events were manipulated to ensure the dismissing officer would dismiss for a false reason.  As such the real reason for dismissal was unfair and was a detriment as a result of making protected disclosures.

The takeaway point:

Yes a hidden reason for dismissal will make a potentially fair dismissal (performance in this case) unfair. If the ultimate reason for dismissal (making protected disclosures) is unfair then the superficial reason, regardless of the knowledge or bias of the decision maker, will be unfair.

It is also worth noting in this case the Claimant was offered a settlement agreement to leave the business. This was not concluded but had both parties – particularly the employer – made further efforts to settle they could have saved the cost of unsuccessfully defending the claim up to the Supreme Court and the reputational damage of improper sales practices and dishonest management culture being exposed. An expensive lesson for Royal Mail!