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Landmark Supreme Court judgment extending whistleblowing protection

The Supreme Court, in Jhuti v Royal Mail, has reversed the Court of Appeal’s decision and held that an employee was unfairly dismissed for making a protected disclosure despite the fact that the decision-maker was unaware of the disclosure.

After the employee had made a protected disclosure to her line manager, she was subjected to an onerous performance management process in which her manager set unrealistic targets and presented a false picture to HR. The company appointed another manager to review her performance, who relied upon the performance information provided, and the employee was dismissed.

The Supreme Court found that where a more senior person than the employee decides they should be dismissed because of a protected disclosure but hides this reason behind an invented one (i.e. poor performance) which is subsequently adopted by the decision maker, the hidden reason will be found by the court to be the actual reason for dismissal.

After the employee had made a protected disclosure to her line manager, she was subjected to an onerous performance management process in which her manager set unrealistic targets and presented a false picture to HR.

The Court held it had a duty to “penetrate through the invention rather than allow it to infect its own determination”. Therefore, the real reason for the employee’s dismissal had been her disclosure, not her performance.

The ruling will make it harder for employers to rely on the lack of knowledge of the decision-maker where another employee has manipulated them into dismissing a whistle-blower.  Employers will need to ensure they gather as complete a picture as possible (including speaking with the employee) before taking any decision to dismiss.

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