Hello and welcome back to your weekly dose of case law. Last weekwe looked at maternity discrimination and constructive dismissal. This week we will examine protected disclosures and whistleblowing. Today’s case is a tale riddled with deceit and espionage.
This week’s case asks:
Is an employee unfairly dismissed if the dismissing party based its decision on false evidence that it genuinely believed was true?
Ms Jhuti, the Claimant, worked in the sales department of Royal Mail Group, the Respondent, trying to attract new long term customers. The Claimant was a new employee and on probation at the Respondent but had vast sales experience.
The Respondent had a very specific policy for sales. They offered incentivised deals to existing clients so they could try out new and more expensive deals. These incentives were not to be used to entice customers on reduced rates. Due to the regulated nature of the Respondent’s business any breaches of this policy could have serious repercussions if they became public knowledge.
The Claimant and a colleague went to meet a customer. The Claimant was told by the colleague that they were visiting a longstanding customer but it became apparent this was not the case during the meeting. Her colleague handed the customer an envelope with an incentives deal, which the Claimant believed to be against company policy.
The Claimant reported this to her manager and found herself receiving fewer preferential sales leads thereafter. At a meeting with her manager she was given a dressing down and coerced into retracting her allegations of incentives abuse. After the meeting the Claimant’s manager emailed a senior manager stating that he didn’t think the Claimant was right for the job and that she would ‘need to be exited’.
From there on the Claimant’s manager began setting increasingly difficult levels of work for the Claimant to complete and despite her best efforts the manager remained critical of her performance.
Whilst her manager was away on annual leave her temporary line manager was very complimentary of her work. The Claimant also had meetings with a member senior management who inferred that the Respondent had turned a blind eye to abuses of the incentives policy.
On her manager’s return the Claimant was once again set difficult tasks and criticised for not reaching them. The Claimant went off sick with stress and raised a grievance about the incentives policy abuses. There was a delay in handling this grievance and the Claimant was offered £100k to exit the business.
The Claimant’s job was then examined and her grievance was rejected due to her coerced email withdrawing the allegations. The Claimant’s manager had lied to HR about the Claimant’s allegations and the Claimant wasn’t interviewed due to her sickness. The incentives policy was then withdrawn for a supposedly unrelated reason. The Respondent then dismissed the Claimant and she initiated Tribunal proceedings.
The ET rejected claims of automatic unfair dismissal (whistleblowing). Despite finding that:
– Her manager’s behaviour was due to protected disclosures.
– The Respondent was aware of the issue and chose to ignore it.
– The Respondent has withdrawn the incentives policy for an unexplained but most likely related reason.
– The Claimant’s manager was an evasive and disingenuous witness leading to the ET believing the Claimant’s version of events.
However the ET rejected her unfair dismissal claim finding that the Respondent’s HR department believing the Claimant’s manager’s inaccurate version of events and thus dismissed on capability grounds as it was a reasonable decision based on their evidence.
The Claimant appealed and the EAT allowed the appeal. It held that despite the Respondent’s HR believing erroneous evidence from the Claimant’s manager, the Respondent was still liable for the conduct of the manager who was manipulating HR’s version of events.
The take away point:
Yes, if an employee is dismissed due to a manager’s false statement then the employer is liable even if the dismissing party believed the false evidence. The EAT summed it up by stating: ‘A decision of a person made in ignorance of the true facts whose decision is manipulated by someone in a managerial position responsible for an employee, who is in possession of the true facts, can be attributed to the employer of both of them’.
Furthermore this case raises some interesting tribunal strategy as the ET judge alluded to several evasive behaviours displayed by the Claimant’s manager and the Respondent’s disclosure. Lastly, it seems the employer in this case made an offer to the employee that was not without prejudice and thus potential evidence, all offers of this nature should be without prejudice and subject to contract.