Victimisation and Knowledge of Protected Disclosures

Is it automatically unfair to dismiss an employee under s.103A Employment Rights Act (ERA) for making a protected disclosure, if the person who took the decision to dismiss had incomplete knowledge of the original protected disclosure and the decision maker was intentionally misled that the reason for the dismissal was performance?

Yes held the Employment Appeal Tribunal (EAT) in Royal Mail Ltd v Ms K Jhuti.

The Claimant raised issues in relation to suspected regulatory breaches. She was then deliberately subjected to detriments by her line managers, and ultimately dismissed. Management manipulated the facts of the situation and led the investigator of the Claimant’s grievance and dismissal appeal hearing manager to believe that she had performance issues in her role, which played a major part in her dismissal, which was not the case.

As the Claimant had less than two years’ service, she had no legal recourse regarding what she believed to be a simple unfair dismissal claim. She was described during her dismissal as a poor performer and yet was offered three months salary and then one year’s salary to leave prior to her dismissal, actions obviously not in line with the Respondent’s arguments regarding her alleged performance issues.

The EAT held that the decision of a person made in ignorance of true facts, whose decision had been manipulated by someone with responsibility for the management of the employee (and who was in possession of the true facts), will amount to victimisation.

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