Supreme Court resolves Iago conundrum in whistleblowing claim

What is the correct legal approach to an unfair dismissal claim if the decision-maker is manipulated by another member of staff with a malign motive? The Supreme Court has now ruled that in these unusual circumstances, the reason for the dismissal is taken to be that of the Iago-like manipulator, not the invented reason which the decision-maker innocently adopts.

Thankfully the story in this case it not quite as extreme as the plot of Shakespeare’s Othello, but nonetheless extremely distressing for the ultimate victim of the manipulation, Ms Jhuti. She had made protected disclosures to her line manager about possible breaches of Ofcom’s guidance. Her manager’s response was to pretend that her performance was inadequate and to fabricate a case against her which another employee senior to him was asked to investigate. This other person – the Othello of the story – not doubting the truthfulness of the material placed before him, decided in good faith that Ms Jhuti should be dismissed. As in the play, an unfortunate combination of circumstances led to this result, most notably that Ms Jhuti was not well enough to participate in the disciplinary hearing that led to her dismissal.

In these circumstances what was the employer's reason for the dismissal? The Supreme Court had to decide whether it was because her performance was believed to have been inadequate, or because she had made protected disclosures. It might be thought that we did not need a panel of five of our top judges to decide this point. However, in ruling against Ms Jhuti, the Court of Appeal had been guided by the long-standing principle that it is the thought process of the decision maker that needs to be scrutinised when assessing whether a dismissal is fair or unfair – and by extension whether it is automatically unfair because the dismissal was because of a protected disclosure.

The Supreme Court noted that there was long-standing authority emphasising the need to approach the relevant statutory provisions “in a broad and reasonable way so that legal technicalities shall not prevail against industrial realities and common sense”. So it has decided that, while in general the courts will need to look no further than the reasons given by the appointed decision-maker, if exceptionally a person senior to the employee dismissed manipulates the decision-making process “it is the court’s duty to penetrate through the invention rather than to allow it also to infect its own determination.”

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