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Does Jhuti spell the end of the road for Burchell?


The Supreme Court’s unanimous decision in Jhuti is that the words “the reason (or, if more than one, the principal reason) for the dismissal” used in s. 103A Employment Rights Act 1996 permits an examination into more than the subjective knowledge and ‘reason’ in the mind of the dismissing officer, but specifically entitles a Tribunal to consider the motivation of any other “person in the hierarchy of responsibility above the [dismissed] employee”.

We believe many other claims are now affected by this judgment, including but not limited to, general unfair dismissal claims and it opens up a route to challenge the current focus of the Burchell test.

The judgment ensures that any employee who asserts the real reason for their dismissal is “another reason” (the nomenclature adopted by the Supreme Court is that of an ‘invented reason’) can now properly challenge ‘the reason’ relied upon by an employer.  Given the wording interpreted is used in the test for general unfair dismissal in s. 98(1), but also claims under H&S s.100(1), (3); working time s.101A(1); assertions of statutory rights s.104(1); flexible working s.104(1); redundancy s.105(1), (2A) and applications for interim relief s.128(1) and s.129, to name but a few examples, the impact of this case cannot be underestimated.  Practically it must also have a bearing on how organisations investigate and determine grievances or any other disciplinary matter.

The Supreme Court’s approach to attribution also has wider implication.  Following specific argument on the application of vicarious liability and/or attribution, its judgment that s.47B applies to an employer because the motivation of an individual in the hierarchy is ‘attributed’ to the employer, not that they are vicariously liable for it, together with its assessment and treatment of Orr, will resonate in other civil cases where corporate liability and/or corporate knowledge is to be examined.

The specific impact of the Supreme Court’s judgment in Jhuti will be addressed by Simon Gorton QC and Jack Mitchell in the New Year. Further details will be released in due course.

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Simon Gorton QC

Simon Gorton QC 020 7269 0360 Email

Jack Mitchell

Jack Mitchell 020 7269 0305 Email

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