Royal Mail Ltd v Kamaljeet Jhuti
| Jurisdiction | England & Wales |
| Judge | Lord Carnwath,Lord Hodge,Lord Wilson,Lady Arden,Lady Hale |
| Judgment Date | 27 November 2019 |
| Neutral Citation | [2019] UKSC 55 |
| Date | 27 November 2019 |
| Court | Supreme Court |
[2019] UKSC 55
Lady Hale, President
Lord Wilson
Lord Carnwath
Lord Hodge
Lady Arden
Appellant
Sean Jones QC
Matt Jackson
(Instructed by Rainer Hughes Solicitors)
Respondent
Simon Gorton QC
Jack Mitchell
(Instructed by Weightmans LLP (Liverpool))
Heard on 12 and 13 June 2019
( with whom Lady Hale, Lord Carnwath, Lord Hodge and Lady Arden agree)
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?
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.
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.
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.
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.”
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.
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.
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.
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.
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”.
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.
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.
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.
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.
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.
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 …”
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.
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.
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...
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