Ignorance Is No Defence

Peninsula Team

July 22 2016

Royal Mail Group Ltd v Jhuti

This case concerns an employee who made a protected disclosure to her manager, who then lied to their HR department and the decision maker that the reason for dismissal should be the employee’s performance and withheld information about the protected disclosure she had made.

The Claimant, Ms Jhuti, held the position of a media specialist in the Respondent’s sales department. Her job was governed by the Respondent’s marketing practices and statutory regulations which put constraints on the role. Part of Jhuti’s role was to offer Tailor Made Incentives (TMIs) to customers allowing them to trial, in order to promote, more expensive mail services. The use of TMIs was explained in the Respondent’s policy document which stated that the Respondent has to ensure “the greatest importance to ensuring that its TMI policy is deployed compliantly”.

Jhuti suspected that one of her colleagues had committed a regulatory breach in relation to TMIs but did not report her suspicions to anyone at that time but subsequently told her manager, Mr Widmer. Following this, extra measures were taken to monitor Jhuti’s work which included significant travel to head office which impacted on her working time and she believed she was being set unrealistic number of tasks in an attempt to force her to leave.

Jhuti complained to a number of HR and senior managers, one of which offered her 3 months’ pay to leave. Jhuti raised a grievance complaining of harassment and bullying because of her disclosures before she was signed off sick with stress in March 2014. In April 2014 a new Sales Director was appointed. Widmer explained to her that Jhuti had raised the issue of TMIs but had misunderstood their meaning. The new Sales Director dismissed Ms Jhuti with 3 months’ notice due to her performance. Jhuti claimed that she had been dismissed for making disclosures – an automatic unfair dismissal.

The Employment Tribunal dismissed the automatic unfair dismissal claim because the decision to dismiss was not based on the fact that the employee made protected disclosures as the decision maker was not fully aware that she had done.
The Employment Appeal Tribunal judged that the dismissal had been unfair, as a decision to dismiss in ignorance of the true facts, even if influenced by someone aware of them, is not a defence. The reasons and motivation of Widmer who influenced the decision-maker must also be taken into account, making the protected disclosure the reason for the dismissal.

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