Landmark ruling in unfair dismissal case

During her short tenure of employment, Ms Jhuti raised some concerns with her employer about Royal Mail not following OFCOM guidance, and also in relation to the award of certain staff bonuses. This rendered her a whistleblower.
After she raised these concerns, she faced various instances of bullying, harassment and intimidation by her manager (the person to whom she had originally complained). She was forced into weekly individual meetings with her manager (none of her colleagues had to do this), her performance was criticised and she was subjected to intensive performance targets. She was also offered sums of money to leave Royal Mail after she had brought a grievance about how she had been treated. She was ultimately dismissed in October 2014, due to performance concerns.

An employee who makes a protected disclosure (a “whistleblower”), such as Ms Jhuti, is afforded certain protections by the law. An employee cannot be dismissed because they have blown the whistle, nor can they be subjected to detriment because of the whistleblowing. As a result of the treatment to which she had been exposed, Ms Jhuti suffered from work-related stress leading to anxiety, severe depression and, ultimately, post-traumatic stress disorder. Following her dismissal, Ms Jhuti commenced a legal battle in which she argued that she had been unfairly dismissed and subject to detriments because she had blown the whistle – culminating in her being awarded more than £2 million in compensation for unfair dismissal.

One curious element of her case was the fact that the person who dismissed Ms Jhuti had no knowledge of the fact or substance of her whistleblowing complaints. These complaints had been concealed from the dismissing manager by the original manager to whom the complaints had been made.

Royal Mail initially succeeded in arguing that the person who dismissed Ms Jhuti could not have been motivated by her whistleblowing complaints, because these were unknown to that person. Ultimately, the Supreme Court overruled this analysis and found that “legal technicalities shall not prevail against industrial realities and common sense.”

Story continues

The Supreme Court found that, where a person determines that a person should be dismissed for a particular reason (i.e. whistleblowing), and hides that reason from the decision-maker behind a different, invented reason, the real reason for the dismissal will be the hidden reason and not the invented reason (performance, in this case).

Apart from the fact that this was a legal battle which spanned almost a decade, we can take away two significant factors from Ms Jhuti’s case. Firstly, in order to be able to claim unfair dismissal, an employee must have two years’ continuous employment before they can raise such a claim.

There are, however, some exceptions to this rule known as automatically unfair dismissal, in which case any employee can bring the claim no matter how long their employment. Dismissal because of whistleblowing is one example of automatically unfair dismissal.

Secondly, in most unfair dismissal cases the compensation available to an employee is capped at a year’s gross pay or £105,707, whichever is lower (one year’s gross pay in most cases). Where the reason for the dismissal is whistleblowing, that cap disappears and there is no ceiling on the compensation available. Hence why Ms Jhuti was able to receive such a high award.

​Jack Boyle is a Director in Blackadders’ Employment Team