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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> Royal Mail Group Ltd v Jhuti [2019] UKSC 55 (27 November 2019) URL: https://www.bailii.org/uk/cases/UKSC/2019/55.html Cite as: [2020] WLR(D) 13, [2020] IRLR 129, [2020] 3 All ER 257, [2020] ICR 731, [2019] UKSC 55 |
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Appellant |
|
Respondent |
Sean Jones QC |
|
Simon Gorton QC |
Matt Jackson |
|
Jack Mitchell |
(Instructed by Rainer Hughes Solicitors) |
|
(Instructed by Weightmans LLP (Liverpool)) |
LORD WILSON: (with whom Lady Hale, Lord Carnwath, Lord Hodge and Lady Arden agree)
Question
1. Section 103A of the Employment Rights Act 1996 (“the Act”) provides:
“An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.”
In this appeal the dispute surrounds the reason for
the dismissal of Ms Jhuti,
the appellant, from her employment by
Royal
Mail
Group Ltd (“the company”). As I will explain, the facts found by the employment
tribunal (“the tribunal”) show that
(a) Ms
Jhuti
made protected disclosures within the meaning of section 43A of the Act,
colloquially described as whistleblowing, to her line manager;
(b) the
line manager’s response to her disclosures was to seek to pretend over the
course of several months that Ms Jhuti’s
performance of her duties under her
contract of employment with the company was in
various
respects inadequate;
(c) in
due course the company appointed another officer to decide whether Ms Jhuti
should be dismissed; and
(d) having
no reason to doubt the truthfulness of the material indicative of Ms Jhuti’s
inadequate performance, the other officer decided that she should be dismissed
for that reason.
So what was the reason for Ms Jhuti’s
dismissal? Was it
that her performance was inadequate? Or was it that she had made protected
disclosures? These specific questions generate the following question of law of
general importance which brings the appeal to this court:
In a claim for unfair dismissal can the reason for the dismissal be other than that given to the employee by the decision-maker?
Facts
2.
On 17 September 2013 the company
employed Ms Jhuti
as a media specialist in its MarketReach unit under a
contract terminable by either side on three months’ notice. But the contract
provided that, for the first six months, she would be on trial and that, if she
failed it, the company could dismiss her on one week’s notice. The unit had two
teams. Ms
Jhuti
was assigned to Mr Widmer’s team. The role of a media
specialist in the company is to promote the use of
mail
by businesses engaged
in marketing activities. Ms
Jhuti
had previously worked at a senior level in
the media industry.
3.
On 16 October 2013 Ms Jhuti
was
shadowing Ms Mann. Ms
Jhuti
formed the
view
that Ms Mann was or might be
infringing Ofcom’s guidance, reflected in the company’s own policy, in respect
of “Tailor-Made Incentives” (“TMIs”). The company’s dominant position in the
postal market had led its regulator, Ofcom, by the issue of guidance, to seek
to control its offers of TMIs to customers: it provided that, while they could
be offered to new customers or to existing customers in respect of new
products, they should not be offered to existing customers in respect of repeat
business. Ms
Jhuti
formed the
view
that Ms Mann was not complying with that
guidance nor with the company policy which reflected it and that the business
which flowed from her improper offers would assist her in achieving her targets
and in securing a bonus for herself and, indirectly, for Mr Widmer himself. Ms
Jhuti
soon formed the same
view
about offers of TMIs made by another member of
Mr Widmer’s team.
4.
By two emails to Mr Widmer dated 8
November 2013 and by a third email to him dated 12 November, Ms Jhuti
reported
her concerns about Ms Mann’s perceived non-compliance with Ofcom’s guidance and
with company policy in relation to offers of TMIs.
5.
Mr Widmer apprised his line
manager, namely Mr Reed, the company’s Sales Director, of Ms Jhuti’s
reports.
By an email which the tribunal described as sinister, Mr Reed responded to him
as follows:
“The TMI issue is one we should look at, so she needs to provide evidence of that, and has to be aware that she is making quite strong and serious allegations in this area.”
6.
On 13 November 2013 there was a meeting between Ms Jhuti
and Mr Widmer.
It lasted for no less than four hours. Mr Widmer asked her at length about her
understanding of the guidance and policy in relation to TMIs. He commented that
her understanding of them was questionable and that, if it was wrong, it would
impact on her position. He asked her whether she was sure that she wished to
make the allegations against Ms Mann. He observed that Ms
Jhuti
was on trial
and that the allegation could cause problems for everyone. During a short break
Ms
Jhuti
realised that, were she to press the allegations further, her
employment would be at risk. When the meeting resumed, Ms
Jhuti
therefore
apologised repeatedly; and she acceded to Mr Widmer’s suggestion that, by email
to him, she should admit that she had made a mistake and should retract the
allegations. Thereafter Mr Widmer administered to her what she described as,
and the tribunal accepted to have been, a “two-hour dress-down” in which, for
the first time, he insisted that she was failing to meet the requirements of
her role and in which he provided her with a list of fresh performance targets
for her to meet.
7.
Later that day Ms Jhuti
duly sent
the email by which she retracted the allegations. She said that her wires had
been crossed in relation to Ms Mann’s offers of TMIs.
8.
Thereafter Mr Widmer set up
intensive weekly meetings with Ms Jhuti,
unmatched for other members of his
team, which, so he said, were necessary in order to monitor her performance.
9.
In an email dated 3 December 2013
to Ms Rock in the Human Resources department (“HR”), Mr Widmer, who had begun
to tell Ms Jhuti
repeatedly that her progress was disappointing, said that he
intended to compile examples of material which would support concerns that she
was not meeting expected standards.
10.
In the absence of Mr Widmer, off
sick for several weeks over Christmas 2013, the other team leader in the unit
supervised Ms Jhuti’s
work. She told Ms
Jhuti
that she was happy with her
progress. Her advice was “just keep [Mr Widmer] happy and you will be fine”.
11.
At a meeting on 18 December 2013
Mr Roberts, who within the company had particular expertise in connection with
TMIs, acknowledged to Ms Jhuti
that media specialists were offering them
inappropriately. He said that “we all know …” and that changes were necessary
to eradicate the abuses.
12.
At two protracted meetings with Ms
Jhuti
in January 2014 following his return to work, Mr Widmer resumed his
criticisms of her performance. Ms
Jhuti
found it hard to discern precisely what
he expected of her. By then she was suffering from alopecia. Mr Widmer also
sent a further email to HR to the effect that her performance was not up to
expectations and that, in the absence of change, the company would need to
consider “exiting” her.
13.
At a further meeting on 5 February
2014 Mr Widmer told Ms Jhuti
that she was to be placed on a six-week
performance improvement plan and that, unless she complied with it, she would
not pass her trial period. The fourth of the five stated objectives of the plan
was for her to disclose to him all the key client contacts in the travel
industry which she had made during her previous employments.
14.
On 6 February 2014 Ms Jhuti
sent
an email to HR in which she expressed concern about Mr Widmer’s conduct towards
her. She alleged that it was all due to an issue which she had raised
previously and which, being on trial, she had been forced to rescind. She
stated that she had consulted her doctor for stress which, in her
view,
was
causing her alopecia. She said that she believed that the demand for disclosure
of information gained during previous employments was one with which she could
not lawfully comply and that it represented part of an agenda to dismiss her if
she failed to accede to it.
15.
Ms Jhuti’s
email to HR precipitated
a meeting with Ms Rock on 10 February 2014. Ms
Jhuti
reiterated that Mr Widmer
had been harassing her because she had accused Ms Mann of an improper use of
TMIs. She said that they had helped Ms Mann to achieve her performance targets
and to secure a bonus for herself and indirectly for Mr Widmer himself, thereby
in effect defrauding the company. Ms Rock responded that Mr Widmer was a
respected employee; that he would be the one to be believed; that Ms
Jhuti
might regard the company as not right for her; and that, by reference to her
performance, the company might find a way to dismiss her.
16.
By email to Ms Rock dated 25
February 2014 Ms Jhuti
wrote:
“It is clear I am being managed to be removed, all on the basis of [Mr Widmer] holding what I believe is a grudge from the day I raised an issue … If you want me out, all based on the initial issue I raised, then just tell me to go …”
17.
On 29 February 2014 Ms Jhuti
was
told that her request for a different line manager was granted and that it
would be Mr Reed. Mr Reed extended Ms
Jhuti’s
trial period by one month, to 17
April. He told Ms
Jhuti
that she was not making the progress which he would
have expected. But he admitted that the length of Mr Widmer’s meetings with her
had been excessive. He said that he did not wish to discuss the allegations
which she had made in 2013 because HR was addressing them.
18.
On 12 March 2014 Ms Jhuti’s
general practitioner signed her off work by reason of work-related stress,
anxiety and depression. She never thereafter returned to work.
19.
A few days prior to Ms Jhuti’s
cessation of work, Ms Rock had on behalf of the company offered her three
months’ salary in return for a
voluntary
termination of her employment. Ms
Jhuti
had rejected the offer. Following its cessation, Ms Rock increased the
offer to a year’s salary. The tribunal described the ostensible generosity of
it, to an employee with an insufficiently long period of employment to be able
to claim unfair dismissal on the general basis set out in section 98 of the
Act, as extremely strange. Ms
Jhuti
did not respond to the increased offer.
20.
In April 2014 the company
appointed Ms Vickers,
a manager with the same seniority as Mr Reed, to decide
whether it should terminate Ms
Jhuti’s
employment. Ms
Vickers
had had no
previous dealings with Ms
Jhuti.
Her instructions were to “review” the evidence
rather than (so it appears) to investigate matters for herself. She was
supplied with numerous emails passing between Mr Widmer and Ms
Jhuti,
including
her email of retraction dated 13 November 2013, but not with the emails dated 8
and 12 November nor with her emails to HR dated 6 and 25 February 2014.
21.
On 11 July 2014 Ms Vickers
invited
Ms
Jhuti
to attend a meeting on 18 July. Ms
Jhuti
responded in about 50 lengthy
emails which the tribunal found to be often incoherent and irrational, in
marked contrast to her earlier emails. She referred to being “sacked for
telling the truth” so Ms
Vickers
asked Mr Widmer to explain what she meant. He
replied that Ms
Jhuti
had alleged that TMIs were being offered inappropriately
but that, when he had explained the unit’s observance of the strict criteria
for offers of TMIs, she had been happy to accept that she had misunderstood
what had occurred.
22.
Ms Jhuti
did not attend any
meeting with Ms
Vickers,
whether on 18 July 2014 or otherwise. She was too ill
to do so. By letter to Ms
Jhuti
dated 21 July Ms
Vickers
communicated her
decision that the company should dismiss her from her employment on three months’
notice, thus with effect from 21 October. Ms
Vickers
explained that from
November 2013 to March 2014, and despite having been subject in February 2014
to Mr Widmer’s performance improvement plan, Ms
Jhuti
had failed to meet
required standards of performance and that it was unlikely that she would do so
in future.
23.
In September 2014, having
consulted solicitors, Ms Jhuti
exercised her right to bring an internal appeal
against Ms
Vickers’
decision. On 28 August 2015, so almost a year later, it was
dismissed. The tribunal found that the conduct of it had been unsatisfactory.
24.
By her claim to the tribunal,
which had been lodged on 18 March 2015, Ms Jhuti
presented two complaints.
First Complaint: Detriments
25. In the appeal before this court, nothing directly turns on the first complaint.
26.
This complaint was presented under
section 48(1A) of the Act, which falls within Part V
of it. In it Ms
Jhuti
contends that she made protected disclosures within the meaning of section 43A,
which falls within Part IVA of it. The contention is that they were disclosures
of information which, so she reasonably believed, she made in the public
interest and which tended to show that criminal offences had been committed or
that persons had failed to comply with legal obligations to which they were
subject (section 43B(1)(a) and (b)) and which she made to her employer (section
43C(1)(a)).
27.
Ms Jhuti
proceeds to contend that,
contrary to section 47B(1) of the Act, she was subjected to detriments by acts
of the company done on the ground that she had made the protected disclosures.
She seeks compensation from the company for the detriments pursuant to section
49(1)(b).
28. At first sight a possible obstacle to the first complaint, not yet finally resolved, is presented by section 47B(2) of the Act, which provides:
“This section does not apply where -
(a) the worker is an employee, and
(b) the detriment in question amounts to dismissal (within the meaning of Part X).”
Thus the exclusion provided by subsection (2) applies
only where the detriment “amounts to” dismissal. In the present case the
detriments which the tribunal identified, and which I will address in para
32(b) below, all preceded the dismissal. The detriments may well have caused
Ms Jhuti’s
dismissal. But can it be said that they amounted to it?
Neither party takes issue with the proposition articulated by Underhill LJ in
the decision under appeal:
“78. There is thus, on the arguments advanced before us, no obstacle in principle to the claimant recovering compensation [under section 49(1)(b)] for dismissal consequent on detriment. Whether she can do so in practice, or to what extent, is of course a matter for the employment tribunal at the remedy hearing.”
The judge’s proposition was confirmed in a formal
declaration made in the Court of Appeal’s order. Although, as I will explain,
the tribunal had made observations suggesting that Ms Jhuti’s
dismissal was
consequent upon the detriments to which it found her to have been subjected,
the Court of Appeal there held that it remained open to the company to argue
otherwise before the tribunal at a future remedy hearing; and the company says
that it proposes to do so.
29. As I will explain, another potential obstacle to the first complaint was presented by section 48(3) of the Act, which provides:
“An employment tribunal shall not consider a complaint under this section unless it is presented -
(a) before the end of the period of three months beginning with the date of the act … to which the complaint relates or, where that act … is part of a series of similar acts …, the last of them, or
(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.”
Second Complaint: Unfair Dismissal
30.
This complaint was presented under
section 111(1) of the Act, which falls within Part X of it, entitled “Unfair
Dismissal”. Ms Jhuti
alleges that, pursuant to section 103A, set out in para 1
above, her dismissal was unfair because the reason for it was that she had made
protected disclosures. Section 103A is an example of what is often called
automatic unfair dismissal. It is to be contrasted with the provision in
section 98, entitled “General”, under which, if pursuant to subsection (1) the
employer establishes that “the reason (or, if more than one, the principal
reason) for the dismissal” is of the kind there specified, the fairness of the
dismissal falls to be weighed by reference to whether it was reasonable in all
the circumstances pursuant to subsection (4). The application of subsection (4)
to section 103A is excluded by section 98(6)(a). So there is no weighing by
reference to whether the dismissal was reasonable in all the circumstances:
under section 103A unfairness is automatic once the reason for the dismissal
there proscribed has been found to exist. In Kuzel
v
Roche Products Ltd
[2008] EWCA Civ 380, [2008] ICR 799, the Court of Appeal addressed the location
of the burden of proof under section 103A. It held that a burden lay on an
employee claiming unfair dismissal under the section to produce some evidence
that the reason for the dismissal was that she had made a protected disclosure
but that, once she had discharged that evidential burden, the legal burden lay
on the employer to establish the contrary: see paras 57 and 61 of the judgment
of Mummery LJ.
The Decision of the Tribunal
31. The tribunal (Employment Judge Baty and two lay members) made a series of decisions upon the complaints in respect of liability and explained them in a comprehensive set of written Reasons.
32. In relation to the first complaint the tribunal decided as follows:
(a) Ms
Jhuti
had made four protected disclosures within the meaning of section 43A.
She had made them in the three emails to Mr Widmer dated 8 and 12 November 2013
and also at her meeting with Ms Rock on 10 February 2014.
(b) In
breach of her right under section 47B(1), Ms Jhuti
had in four respects been
subjected to detriments by acts of the company done on the ground that she had
made the protected disclosures. First, Mr Widmer, who did not genuinely have
serious concerns about her performance, had from 13 November 2013 imposed
particular targets and mandatory weekly meetings solely on Ms
Jhuti
and had
bullied, harassed and intimidated her. He had done so as a result of her
disclosures to him and he had been setting her up to fail. Second, still
lacking any serious concerns about her performance, Mr Widmer had on 5 February
2014 imposed upon Ms
Jhuti
a performance improvement plan, with which she was
required to comply in order to pass her trial period and which included a
demand for disclosure of key contacts made during previous employments. He had
done so as a result, again, of her disclosures to him and he had again been
setting her up to fail. Third and fourth, Ms Rock had in March 2014 made an
offer to Ms
Jhuti
of three months’ salary and had later increased it to one
year’s salary, as inducements to her to relinquish her employment, which Ms
Jhuti
did not wish to do. Ms Rock had done so as a result of all four
disclosures, in particular the disclosure to her on 10 February.
(c) Ms
Jhuti’s
complaint was not out of time because it related to a series of acts,
the last of which occurred within the three months specified under section
48(3)(a). The tribunal’s reasoning in this respect is irrelevant to the present
appeal.
(d) Assessment
of the amount of compensation to be paid by the company to Ms Jhuti
in respect
of the detriments should be conducted at a remedy hearing.
33.
But the tribunal decided that the
second complaint should be dismissed. It held that the complaint failed to
satisfy section 103A because the reason, or at least the principal reason, for
Ms Jhuti’s
dismissal had not been her making of the protected disclosures. It
found that the disclosures had played no part in the reasoning of Ms
Vickers
who, albeit by reference to evidence which was hugely tainted, genuinely
believed that the performance of Ms
Jhuti
had been inadequate and who had
dismissed her for that reason.
34. But the tribunal added the following observation, which it underlined:
“346. However, given Mr Widmer’s
actions, including the treatment which he meted out to the claimant as a result
of her protected disclosures, the email trail that he prepared in this context,
and his other actions as set out in these reasons above, it was inevitable that
Ms Vickers
would, as she did, dismiss the claimant.”
The Decision of the Appeal Tribunal
35.
The company appealed to the
Employment Appeal Tribunal (“the appeal tribunal”) against decisions made by
the tribunal in respect of the first complaint. In particular it challenged the
decision that Ms Jhuti’s
first complaint had been presented in time. Ms
Jhuti
cross-appealed against the dismissal of her second complaint; and it was agreed
that the judge in the appeal tribunal, Mitting J, should determine the
cross-appeal first.
36.
On 19 May 2016, by a judgment
numbered UKEAT/0020/16 and reported at [2016] ICR 1043, Mitting J allowed Ms
Jhuti’s
cross-appeal. He held, at paras 33 and 34, that, if someone in a
managerial position, responsible for the employee, had manipulated a decision
to dismiss her which had been made in ignorance of the manipulation, the
manipulator’s reason for dismissal could be attributed to the employer for the
purpose of section 103A; and he held, at paras 35 and 36, that on the
tribunal’s findings the reason for Ms
Jhuti’s
dismissal was therefore her
making of the protected disclosures. Mitting J granted permission to the
company to appeal to the Court of Appeal against his order in this respect. He
also stayed the company’s appeal to the appeal tribunal pending determination
of its proposed appeal to the Court of Appeal.
The Decision of the Court of Appeal
37.
On 20 October 2017, by judgments
numbered [2017] EWCA Civ 1632 and reported at [2018] ICR 982, the Court of
Appeal allowed the company’s appeal. The only substantive judgment was
delivered by Underhill LJ; by their judgments, Jackson and Moylan LJJ did no
more than to agree with it. The Court of Appeal held that, subject to possible
qualifications said to be irrelevant to the present case, a tribunal required
to determine “the reason (or, if more than one, the principal reason) for the
dismissal” under section 103A of the Act, and for that matter under section
98(1)(a), was “obliged to consider only the mental processes of the person or
persons who was or were authorised to, and did, take the decision to dismiss”
para 57. It is against the Court of Appeal’s decision to set aside Mitting J’s
order and to reinstate the tribunal’s dismissal of her second complaint that Ms
Jhuti
brings the present appeal.
38.
The Court of Appeal also remitted
to the appeal tribunal the task of determining the company’s appeal, stayed by
Mitting J, against the tribunal’s decision that Ms Jhuti’s
first complaint was
presented in time in accordance with section 48(3) of the Act. It appears that
the appeal tribunal allowed the company’s appeal and remitted the issue under
the subsection for re-determination by the tribunal; that, by a different
route, the tribunal again determined that the complaint was presented in time; and
that the company’s appeal against the tribunal’s re-determination has recently
been dismissed.
Reason for the Dismissal
39. The question is whether the tribunal correctly identified “the reason (or, if more than one, the principal reason) for the dismissal” within the meaning of section 103A of the Act. But the same words also appear in numerous other sections in Part X of it. In particular, as explained in para 30 above, they appear in subsection (1) of section 98, which contains the current provision for a claim of unfair dismissal on the general basis; indeed those same words have been applied to a general claim for unfair dismissal ever since introduction of the claim into the law by section 24 of the Industrial Relations Act 1971. The court’s answer to the question in relation to section 103A must relate equally to the other sections in Part X in which the same words appear, and also, for example, to section 98(4), which requires the tribunal to determine whether the employer acted reasonably in treating the reason for dismissal as sufficient.
40. At first sight, therefore, the question seems to be of wide importance.
41. On the other hand, as the company acknowledges, the facts of the present case are extreme:-
(a) an employee on trial blows the whistle upon improper conduct on the part of her line manager’s team;
(b) her line manager responds by deciding to pretend that the employee’s performance of her duties is inadequate and to secure a conclusion that she has failed her trial period;
(c) over the next months he bullies and harasses her with targets, meetings and an improvement plan, by which he sets her up to fail;
(d) he succeeds in creating, in emails and otherwise, a false picture of her inadequate performance;
(e) the decision to dismiss the employee is made by an officer who, in her review of the evidence, fails to perceive the falsity of the picture which he has created; and
(f) in particular the employee, in no condition to meet the decision-maker or otherwise to present her case clearly to her, fails to help her to understand the falsity of the picture.
Instances of decisions to dismiss taken in good faith, not just for a wrong reason but for a reason which the employee’s line manager has dishonestly constructed, will not be common.
42. The need to discern a state of mind, such as here the reason for taking action, on the part of an inanimate person, namely a company, presents difficulties in many areas of law. They are difficulties of attribution: which human being is to be taken to have the state of mind which falls to be attributed to the company?
43.
In Meridian Global Funds
Management Asia Ltd v
Securities Commission [1995] 2 AC 500 a New Zealand
statute required a holder of specified investments to give notice of its
holding to a regulator as soon as it became aware of its holding. Unbeknown to
any others in the company apart from one colleague, its chief investment
officer improperly acquired such investments on the company’s behalf. The
judicial committee of the Privy Council held that his knowledge of the holding
should be attributed to the company and thus triggered the requirement for the
company to give notice; and that it was unnecessary to decide whether in some
more general sense he was the company’s “directing mind and will”. On behalf of
the committee Lord Hoffmann said, at p 507:
“[G]iven that [a rule] was intended to apply to a company, how was it intended to apply? Whose act (or knowledge, or state of mind) was for this purpose intended to count as the act etc of the company? One finds the answer to this question by applying the usual canons of interpretation, taking into account the language of the rule (if it is a statute) and its content and policy.”
This context-dependent nature of the task of
attributing a human state of mind to a company was re-affirmed by Lord Sumption
in Bilta (UK) Ltd v
Nazir (No 2) [2015] UKSC 23, [2016] AC 1, at para
67.
44.
The context of the present case is
a search for the reason for a company’s dismissal of an employee. In Abernethy
v
Mott, Hay and Anderson [1974] ICR 323, 330, Cairns LJ offered the classic
definition:
“A reason for the dismissal of an employee is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee.”
45.
In West Midlands Co-operative
Society Ltd v
Tipton [1986] AC 536 Lord Bridge of Harwich, in a speech with
which the other members of the appellate committee agreed, indorsed at p 545
the definition of Cairns LJ; approved at p 544 observations by Lord Reid in Post
Office
v
Crouch [1974] 1 WLR 89, 95-96, that statutory provisions for
claims for unfair dismissal “must be construed in a broad and reasonable way so
that legal technicalities shall not prevail against industrial realities and
common sense”; and observed at p 545 that the reason for the dismissal to which
the provisions referred might aptly be termed the “real” reason for it.
46. In enacting section 103A Parliament clearly intended to provide that, where the real reason for dismissal was that the employee had made a protected disclosure, the automatic consequence should be a finding of unfair dismissal. But is the meaning of the section, to be collected from its language construed in the light of its context and purpose, that, when the employee’s line manager deliberately hides the real reason behind a fictitious reason, the latter is instead to be taken as the reason for dismissal if adopted in good faith by the decision-maker on the company’s behalf?
47.
In giving an affirmative answer to
that question the Court of Appeal considered itself bound by its earlier
decision in Orr v
Milton Keynes Council [2011] EWCA Civ 62, [2011] ICR 704, which had not been drawn to the attention either of the tribunal or of the
appeal tribunal. The tribunal in the Orr case had not clearly found all
the relevant facts and the three judgments in the Court of Appeal differ in
their recital of some of them as well as in relation to the legal issue to
which they gave rise.
48. An attempted summary is as follows:
(a) Mr Orr was employed by the council as a youth worker.
(b) Contrary to his manager’s instruction, Mr Orr discussed a recent sexual assault with the youths with whom he was working.
(c) The manager sought in an underhand way to reduce Mr Orr’s working hours and Mr Orr discovered, or may have discovered, that the manager had done so.
(d) There was an altercation between Mr Orr and the manager, in which Mr Orr lapsed into Jamaican patois.
(e) The manager thereupon responded with words which were held to amount to unlawful race discrimination, to the effect that those who use the patois mumble unintelligibly.
(f) Mr Orr thereupon lost his temper and behaved in an insubordinate manner towards the manager.
(g) An officer was appointed to decide whether Mr Orr should be dismissed.
(h) Mr Orr chose not to contribute to the officer’s inquiry.
(i) The manager did contribute to the officer’s inquiry but withheld from him the facts at (c) and (e).
(j) Pursuant to the decision of the officer, who was unaware of the facts at (c) and (e), the council dismissed Mr Orr.
49. The main issue before the Court of Appeal was whether, for the purpose of section 98(4) of the Act, the council acted reasonably in treating Mr Orr’s insubordination as a sufficient reason for dismissing him. For that purpose, what knowledge should be attributed to the council? Just the knowledge of the officer? Or also the knowledge of the manager? Moore-Bick LJ at para 58 gave a clear answer, with which Aikens LJ at para 86 agreed: it was the knowledge of the “person who was deputed to carry out the employer’s functions under section 98”, and only of that person, which fell to be attributed to the company for that purpose. So Mr Orr failed in his appeal against the rejection of his complaint of unfair dismissal.
50. But Sedley LJ dissented from the dismissal of Mr Orr’s appeal. He held at para 19 that the officer appointed to decide whether an employee should be dismissed
“has to be taken to know not only those things which he or she ought to know but any other relevant facts the employer actually knows [including] facts known to persons who in some realistic and identifiable way represent the employer in its relations with the employee concerned. If, as would seem inescapable, relevant things known to a chief executive must be taken to be known to both the corporation and its decision-maker, the same is likely to be the case as the chain of responsibility descends. It is equally likely not to be the case when one reaches the level of fellow employees or those in more senior but unrelated posts.”
51.
Mr Jones QC, on behalf of Ms
Jhuti,
does not seek to persuade this court to approve the need for an inquiry
into the knowledge of facts as wide as Sedley LJ there suggested. He also
accepts the criticism made by Moore-Bick LJ at para 60 that attribution to
the officer of facts known to the manager would be artificial. It is
attribution to the company of facts known to the manager (here Mr
Widmer) for which Mr Jones contends; and he relies on a sentence in para 29 of
the judgment of Sedley LJ, seemingly inconsistent with what he had said in para
19, in which he observed that Mr Orr’s case involved imputing the manager’s
knowledge not to the officer but to the council.
52.
For various
reasons, some already
visible,
Mr Orr’s case was not a satisfactory
vehicle
for any full, reasoned,
articulation of principle in relation to the attribution to the employer of
facts unknown to the decision-maker but known to those in the chain of
responsibility above the employee. Nor were the facts of his case, in which
what was told to the decision-maker was true but did not include part of the
background, comparable to those in the present case, in which the
decision-maker was deceived by the presentation to her of a falsely constructed
set of criticisms.
53.
While in the present case he
correctly acknowledged that the Court of Appeal was bound by its majority
decision in the Orr case, Underhill LJ identified at para 62 a different
situation in which, so he suggested, it might be appropriate for a tribunal to
attribute to the employer knowledge held otherwise than by the decision-maker.
He was referring to the knowledge of a manager who, alongside the
decision-maker, had had some responsibility for the conduct of the disciplinary
inquiry. It was a suggestion which he had first made in his judgment in The
Co-Operative Group Ltd v
Baddeley [2014] EWCA Civ 658. There, in para 42, he
had referred to a situation in which the decision-maker’s beliefs had “been
manipulated by some other person involved in the disciplinary process who has
an inadmissible motivation”. “For short,” Underhill LJ had added (perhaps
questionably), “an Iago situation”. He had proceeded:
“[Counsel] accepted that in such a case the motivation of the manipulator could in principle be attributed to the employer, at least where he was a manager with some responsibility for the investigation; and for my part I think that must be correct.”
I respectfully agree that in the situation there
identified by Underhill LJ it might well be necessary for the tribunal to
attribute to the employer the knowledge of the manipulator; but, as Underhill
LJ accepted, the proposition in no way helps to resolve the present case
because Mr Widmer cannot be taken to have had responsibility, alongside Ms
Vickers,
for any part of the conduct of the inquiry.
54.
In its opposition to the
attribution to it of the knowledge of Mr Widmer for the purpose of identifying
its reason for dismissing Ms Jhuti,
the company, by Mr Gorton QC, relies
principally on the provisions of section 47B of the Act, part of which has been
addressed above. The argument is that the section gives a
valuable
right to
workers not to be subjected to detriment by acts done on the ground that they
have made a protected disclosure; and that there is therefore no reason under
section 103A to (so it is said) “stretch” the attribution to the company of the
reason for dismissal beyond that given by the appointed decision-maker.
55.
It is in two different situations
that section 47B confers the right to which the company refers. Subsection (1)
caters for the first situation: here the worker’s right is not to be subjected
to detriment by any act done “by his employer” on the specified ground.
Subsections (1A) to (1E), inserted into the Act by section 19(1) of the
Enterprise and Regulatory Reform Act 2013, cater for the second situation: here
the right is not to be subjected to detriment by any act done “by another worker
…” on the specified ground but, subject to a limited defence to which it is
unnecessary to refer, the other worker’s act is treated as the employer’s act
so as to render the employer vicariously
liable for it.
56.
One aspect of the company’s
argument appears to be that, to catch the conduct of other employees who act
against whistleblowers as Mr Widmer did, the provision for the employer’s
vicarious
liability in subsections (1A) to (1E) of section 47B affords an
entirely adequate remedy. With respect, this aspect of the argument seems
curious. A close study of the documents in the present case yields the
confident conclusion that, as set out in para 32(b) above, the right of Ms
Jhuti
under section 47B which the tribunal held to have been infringed was the
right under subsection (1), arising in the first situation in which the
employer does the act and is directly liable for it. It was not the right under
subsections (1A) to (1E), arising in the second situation in which another
worker does the act and the employer is
vicariously
liable for it. It follows
that, of the four acts (including series of acts) by which the tribunal found
Ms
Jhuti
to have been subjected to detriment, the two acts of Mr Widmer (and
for that matter the two acts of Ms Rock) were attributed to the company so as
to make it directly liable for the detriments. This unchallenged attribution to
the company of the acts of Mr Widmer, which, had it known of the circumstances
surrounding them, it could not have authorised, affords no support for its
approach to attribution under section 103A.
57.
But the company’s reliance on
section 47B of the Act has a wider dimension. Rising above the dichotomy
between the two situations there identified, its argument is that, in one way
or the other, the right there given to those in the position of Ms Jhuti
affords to them all the relief which they could reasonably expect. The argument
has generated comparison between the time limit for presenting a complaint of
subjection to detriment under section 47B (see section 48(3), set out in para
29 above) and the allegedly more generous limit for presenting a complaint of
unfair dismissal under section 103A (see section 111(2)); and comparison also
between the remedy for subjection to detriment, compensation for which can extend
to injury to feelings, and the remedies for unfair dismissal, which do not
provide such compensation but which include interim relief under section 128
and orders for reinstatement or re-engagement under section 113 such as have no
parallel in relation to a complaint of detriment.
58. There is a limit to the utility of such comparisons. There will inevitably be facets of the two complaints which will make one of them more advantageous than the other to the complainant or to the employer. Overarchingly, however, Parliament has, by section 103A, provided that, where an employee’s whistleblowing is the reason for it, a dismissal should automatically be unfair and should thus attract the remedies set out in Part X; and, as noted in para 28 above, it has also, by section 47B(2), withdrawn the rights provided by that section from the whistleblowing employee who is subjected to a detriment which amounts to dismissal.
59.
It is therefore obvious that
whistleblowers are not confined to remedies under Parts IVA and V
of the Act.
The task of this court, mandated by section 103A, is to determine whether the
tribunal properly identified the reason for Ms
Jhuti’s
dismissal. The company
is right to object to any “stretching” of that word. On the other hand we
should respond to the encouragement of Lord Reid in the Crouch case,
cited in para 45 above, to approach the problem in a broad and reasonable way
in accordance with industrial realities and common sense.
60.
In searching for the reason for a
dismissal for the purposes of section 103A of the Act, and indeed of other
sections in Part X, courts need generally look no further than at the reasons
given by the appointed decision-maker. Unlike Ms Jhuti,
most employees will
contribute to the decision-maker’s inquiry. The employer will advance a reason
for the potential dismissal. The employee may well dispute it and may also
suggest another reason for the employer’s stance. The decision-maker will
generally address all rival
versions
of what has prompted the employer to seek
to dismiss the employee and, if reaching a decision to do so, will identify the
reason for it. In the present case, however, the reason for the dismissal given
in good faith by Ms
Vickers
turns out to have been bogus. If a person in the
hierarchy of responsibility above the employee (here Mr Widmer as Ms
Jhuti’s
line manager) determines that, for reason A (here the making of protected
disclosures), the employee should be dismissed but that reason A should be
hidden behind an invented reason B which the decision-maker adopts (here
inadequate performance), it is the court’s duty to penetrate through the
invention rather than to allow it also to infect its own determination. If
limited to a person placed by the employer in the hierarchy of responsibility
above the employee, there is no conceptual difficulty about attributing to the
employer that person’s state of mind rather than that of the deceived
decision-maker.
Conclusion
61.
There is no need to remit to the
tribunal an issue whether, upon the proper attribution to the company of Mr
Widmer’s state of mind, the reason for Ms Jhuti’s
dismissal was that she had
made the protected disclosures. Mitting J in the appeal tribunal was correct to
hold that, although the tribunal had considered it necessary to address the
state of mind only of Ms
Vickers,
it had made findings determinative of that
issue in favour of Ms
Jhuti. Such part of the order of the Court of Appeal as
allowed the company’s appeal against his order should be set aside; and his
order should be restored. There is no need to overrule the decision in the Orr
case; by our decision, we attach only a narrow qualification to it.
62. The answer to the question of law identified in para 1 above is therefore as follows:
Yes, if a person in the hierarchy of responsibility above the employee determines that she (or he) should be dismissed for a reason but hides it behind an invented reason which the decision-maker adopts, the reason for the dismissal is the hidden reason rather than the invented reason.