Is dismissal for whistleblowing automatically unfair?

A dismissal will be automatically unfair if the main reason for the dismissal is the fact that the employee has 'blown the whistle' on malpractice.

The Supreme Court has recently decided that an employer was liable for automatic unfair dismissal even though the decision maker was unaware of the protected disclosures.

Royal Mail v Jhuti

In Royal Mail v Jhuti, the employee made protected disclosures about suspected breaches of Royal Mail rules and Ofcom requirements. She told her team leader who suggested her allegations could cause problems for everyone. He suggested she retract them. The team leader then raised performance issues for the first time.

Whistleblowing or poor performance?

The employee was upset and worried about her job and so retracted the complaint. She was then subject to performance management with unrealistic targets and expectations which she said were detriments because of the protected disclosure. Another manager was appointed to consider her dismissal for poor performance.

This manager was not given the details about the whistleblowing allegations. She was told that the employee accepted that it had been a misunderstanding. She dismissed the employee for poor performance.

Unfair dismissal for whistleblowing

The Supreme Court said the employee had been unfairly dismissed. If a more senior employee decides someone should be dismissed but hides the real reason in something else (such as underperformance) which the decision maker accepts, the reason for dismissal is the hidden reason. In this case, the real reason for the employee's dismissal was the fact that she had blown the whistle, rather than poor performance.

Legal advice on whistleblowing

Employers should ensure that dismissing officers ask for full details of any allegations raised by an employee, especially ones relating to whistleblowing or discrimination. This level of manipulation by managers will be rare but can be costly so care must be taken.

Paul Burton, Head of Employment says "This Supreme Court decision goes beyond whistleblowing cases. The employer, not the decision maker, is the one who dismisses and hidden knowledge of a potentially unfair reason by a manager in this way can still make the dismissal unfair even if the ultimate decision maker knows nothing about it. This is likely to apply to all unfair dismissals and so employers should be looking to ensure that decision-makers have access to all necessary information in reaching their decision."

At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and the Employment team will be happy to discuss it with you.

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