What is the real reason for dismissal?
Following the Supreme Court’s decision in the case of Royal Mail Group Limited v Jhuti, it is clear that Employment Tribunals will closely scrutinise an employer’s stated reason for dismissal. If the Tribunal finds that the reason was, in fact, invented by the employer to conceal the real basis for dismissal, then the Tribunal will reject the stated reason.
Ms Jhuti made a complaint to her line manager which amounted to a protected disclosure for the purposes of section 47B Employment Rights Act 1996. In response, her line manager informed Ms Jhuti that her work was not up to scratch and initiated a performance improvement process. Ms Jhuti raised a grievance and her line manager was changed. Her second line manager continued the poor performance process and eventually dismissed Ms Jhuti by reason of performance-related capability.
Ms Jhuti alleged that the real reason for her dismissal was her protected disclosure and that her dismissal was therefore automatically unfair.
The Supreme Court’s decision
The Supreme Court decided that if an employee’s manager (or similarly senior person) determines that an employee should be dismissed for a reason (a protected disclosure) but attempts to hide it behind an invented reason which the decision-maker later adopts (performance), the reason for the dismissal is the hidden reason rather than the invented reason.
The Supreme Court considered that Parliament had clearly intended to provide that, where the real reason for dismissal was that the employee had made a protected disclosure, the appropriate consequence was an automatic finding of unfair dismissal. The knowledge of the first manager should, therefore, be attributed to the employer when determining its liability for unfair dismissal. The poor performance process was, in effect, a sham and could not be relied upon in the employer’s defence.
Employers must take care when determining the reason for an employee’s dismissal and should bear in mind that it is their burden to prove the reason for dismissal. It is not uncommon for an employee to allege that a poor performance procedure or redundancy dismissal is a sham and that the real reason lies elsewhere. This commonly forms the subject of a grievance or an appeal against dismissal. If the employer is not able to disprove such allegations then there is a real risk that a Tribunal will rigorously examine the stated reason for dismissal.
When faced with allegations that the stated reason for dismissal is a sham, employers should thoroughly investigate and should only proceed or confirm that stated reason if it is satisfied that it is genuine.
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