Royal Mail Ltd v Kamaljeet Jhuti
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Lord Justice Moylan,Lord Justice Jackson |
| Judgment Date | 20 October 2017 |
| Neutral Citation | [2017] EWCA Civ 1632 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2016/2952 |
| Date | 20 October 2017 |
[2017] EWCA Civ 1632
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
MR JUSTICE MITTING
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Jackson
Lord Justice Underhill
and
Lord Justice Moylan
Case No: A2/2016/2952
Mr Simon Gorton QC and Mr Jack Mitchell (instructed by Weightmans) for the Appellant
Mr Simao Paxi-Cato and Mr Matthew Jackson (instructed by Net Solicitors) for the Respondent
Hearing date: 29 June 2017
Written Submissions: 21 and 25 July 2017
Judgment Approved
INTRODUCTION
This is an appeal by Royal Mail Group Ltd. against a decision of the Employment Appeal Tribunal (Mitting J sitting alone) in a whistleblower case. The Claimant, Ms Kamaljeel Jhuti, brought proceedings in the Employment Tribunal both for unlawful detriment contrary to section 47B of the Employment Rights Act 1996 and for "automatic" unfair dismissal contrary to section 103A. She succeeded on the former claim but lost on the latter because, although her line manager had on the proscribed grounds treated her as having a poor performance record, the different manager who took the decision to dismiss her was unaware of that motivation and had made the decision in good faith on the basis of what she (reasonably) understood to be inadequate performance. Mitting J allowed the Claimant's cross-appeal on the basis that the line manager's unlawful motivation should be treated as the reason for the dismissal. The issue thus raised is of some general importance and Mitting J himself gave permission to appeal.
Royal Mail has been represented before us by Mr Simon Gorton QC and Mr Jack Mitchell. Mr Gorton also appeared in the EAT but not in the ET, where Royal Mail was represented by Mr Steve Peacock of Weightmans. The Claimant has been represented throughout by Mr Simao Paxi-Cato of counsel: in this Court he leads Mr Matthew Jackson.
THE FACTS
The facts that are relevant for the purpose of this appeal can be stated fairly shortly.
The Claimant was recruited as a media specialist in the MarketReach unit of Royal Mail's Sales Division. The role of MarketReach is to promote the use of mail by businesses engaged in marketing. The Claimant was initially on a trial period of six months.
Shortly after she started her employment the Claimant observed what she believed were irregularities in the way that colleagues were offering customers what were described as "tailor-made incentives" ("TMIs"). It is not necessary for the purpose of this appeal to understand the details of the irregularities in question. At the risk of some over-simplification, the essential point is that sales staff were entitled to offer discounts to new clients, or to existing clients in order to encourage them to try new products, but that it would be a breach of OFCOM guidance for such incentives to be given in respect of ongoing business. The Claimant reported her concern that such breaches might be occurring to her immediate manager, Mr Mike Widmer, in particular in two e-mails dated 8 and 12 November 2013.
On 13 November 2013 Mr Widmer had a long meeting with the Claimant in response to her e-mails. Her account of the meeting and his were very different, but the ET preferred her evidence. In short, it found that Mr Widmer put her under great pressure to withdraw her allegations, with a clear if veiled threat that if she did not do so her employment would not continue beyond the end of her probation. He sought to characterise her allegation as being that colleagues had been offering TMIs to clients' procurement departments rather than to their marketing departments – which would not necessarily be wrong, depending how the choices as to new business were made in that particular company – but that was, the ET found, a deliberate mischaracterisation of her complaint, which was about the unequivocal wrongdoing of TMIs being offered in respect of existing business. The Claimant was extremely surprised and shaken by Mr Widmer's hostile response to her complaint and was concerned for her job. She asked him what she should do. He said that she should write to him withdrawing her allegations and saying that she had misunderstood the rules governing the use of TMIs. She agreed to do so, and that evening sent him an e-mail in appropriate terms apologising for "having got her wires crossed". He subsequently told her that she needed to get further training in the use of TMIs.
Over the following months the Claimant became increasingly unhappy about her relationship with Mr Widmer. He was critical of her performance, and imposed targets and requirements for improvement, in a way which she believed was harsh and unreasonable and which she attributed to his reaction to her earlier allegations about the misuse of TMIs. In February 2014 she complained to the HR department, mentioning in e-mails that she had drawn attention to the misuse of TMIs. An arrangement was made for her to be managed directly by Mr Widmer's superior, a Mr Reed. He extended her probationary period by a further month and had a meeting with her on March 3 2014. She was dissatisfied with his response at that meeting. On 10 March she raised a grievance about her treatment by Mr Widmer. On 12 March her GP signed her off work suffering from work-related stress. She never returned to work.
In due course the decision was taken that the Claimant's future within Royal Mail needed to be resolved. The responsibility was given to Pauline Vickers, the Head of Sales Operations, who had had no previous involvement with her management. She was sent by the HR department a file of the e-mails passing between the Claimant and Mr Widmer, though this did not include her e-mails of November 2013 making the TMI allegations. On 11 July 2014 she wrote to the Claimant to tell her that the termination of her employment was being considered and invited her response either at a meeting or in correspondence.
The Claimant did not attend the proposed meeting because she was too unwell. She did however send Ms Vickers a series of e-mails between 11 and 14 July 2014. These were voluminous and incoherent, reflecting her poor mental state. However in the course of them she referred to the allegations which she had previously made about misuse of TMIs. Ms Vickers was concerned about this and asked Mr Widmer to comment. He sent her an e-mail describing how he had dealt with the Claimant's original concerns and how she had, he said, accepted that they were based on a misunderstanding. He supplied a copy of her e-mail of 13 November 2013 retracting her allegations, though not of her earlier e-mails. Ms Vickers accepted his account.
On 21 July 2014 Ms Vickers wrote to the Claimant giving her three months' notice of dismissal. The letter was accompanied by a four-page summary of the circumstances leading up to her decision. These made it clear that the reason for the termination was squarely her unsatisfactory performance. The summary concluded:
"Taking all the evidence into account, in my capacity as decision making manager, I am required to make an assessment as to whether I feel it's likely that, upon KJ's return to work, she would be able to meet the standards required in the role of Media Sales Specialist. Given that over the period of 28 November–3 March KJ did not meet this standard, despite being issued with a specific five point improvement plan my view is that it's unlikely that she would achieve the standards expected in the role. On this basis, my decision is that her employment should be terminated."
The summary did refer to the allegations about the misuse of TMIs. As to this, Ms Vickers said:
"I reviewed the emails relating to KJ's concerns about the TMI process and requested further clarity from Mike. I have confirmed with Mick that KJ did raise the issue of TMIs being used inappropriately; this was discussed during a 1 to 1 and detailed in Mike's email dated 14 November 2013. Mike's recollection is that this was resolved and her concerns were based on a misunderstanding of the process. This recollection is supported by KH's email of the 13 November, in which she clearly states " Also, thank you for the clarification; I am so sorry I got my wires crossed re TMI's to procurement. I didn't realise sometimes this can happen and hence team members would take this route." Mike suggested KJ completed further training with Phil Walkington and in his email of the 14 Nov states, " it is vital you understand TMI's, including what you can and cannot do, what you can and cannot say to a customer, where they are appropriate and the process involved in applying for one". In Mike's feedback email of the 28 November, Mike indicates that KJ had not followed up any of the training recommended on 14 Nov, including the TMI session. It would appear from this evidence that KJ raised an issue on TMI's based on her limited understanding of the process, this concern was appropriately handled, the misunderstanding was accepted by KJ and additional training was offered to enable KJ to fully understand the process. I have therefore discounted this as an issue relating in my considerations of KJ meeting the required standard of performance."
The Claimant appealed. Her appeal was dismissed by an appeals officer, Ms Madden, on 28 August 2014. She said in her reasons that she had spoken to Mr Widmer and she accepted his account of the meeting of 13 November 2013.
THE BACKGROUND LAW
The provisions granting protection to whistleblowers were introduced by the Public Interest Disclosure Act 1998 by way of amendments to the 1996 Act. Part IVA contains the definition of "protected disclosure". No issue on that arises in this appeal. The operative provisions affording protection to workers who have made a...
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