Is it unlawful to dismiss for poor performance when the employer has raised whistleblowing concerns?
Ordinarily an employee who brings information about a wrongdoing to the attention of their employer (makes a protected disclosure) will be protected under the Public Interest Disclosure Act 1998. It is unlawful for an employee to suffer a detriment as a result of making a protected disclosure and those who do suffer a detriment have recourse by way of an unfair dismissal claim if they are dismissed as a result, irrespective what period of continuous service they might have.
In the case of Royal Mail Group Limited -v- Mrs K Jhuti , Mrs Jhuti raised concerns about the allocation of accounts to her. She raised what she believed was wrongdoing and was subsequently put on a performance management plan. The targets that she was given were unobtainable and she believed that this was as a direct result of making the protected disclosure.
She was required to attend weekly performance meetings with her line manager. Her probationary period was extended and she was later offered a severance payment of three months’ pay to terminate her employment. Mrs Jhuti went off on sick leave and raised a formal grievance about the way that she was being treated.
Whilst absent from work her line manager involved another member of the management team to review Mrs Jhuti’s position. Mrs Vickers, the manager who held the investigations was unaware of the grievance and the concerns that had been raised and was led to believe that that there was genuine performance related issue. Subsequently she made the decision to dismiss Mrs Jhuti on the basis of poor performance
Mr Jhuti complained on the basis that she had been dismissed for whilsteblowing.
The Employment Tribunal
The Employment Tribunal held that Mrs Jhuti had suffered a detriment as a result of the performance plan and the severance offer, on the basis that she wanted to be retained within in the business. However it found against her in connection with the claim that she had been unfairly dismissed on the basis that the person responsible for the dismissal did not have knowledge that she was dealing with anything other than performance related issues.
However, the matter went before the Employment Appeal Tribunal which disagreed with decision of the Employment Tribunal and held that the decision of a person made in ignorance of the true facts, whose decision was manipulated by someone in a managerial position responsible for the employee who is in the possession of the true facts, can, and did in this case, reach the requisite level to amount to victimisation.
It is important to remember that you cannot necessarily right a wrong by attempting to place a matter in the hands of someone unconnected and apparently unaware of a problem, particularly when that person falls under the same line management. Often, employers use outside consultants to carry out any necessary investigations, as well as holding disciplinary and grievance hearing, in order to demonstrate that they are being conducted at arm’s length. This can be particularly helpful for SMEs with limited resources. We are available to provide these services in addition to our regular subscription services.
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