Royal Mail Ltd v Jhuti  EWCA Civ 1632
This recent judgment of the Court of Appeal resolved two important questions:
The Claimant (J) made protected disclosures to her line manager (W). W put pressure on J to withdraw the allegations and made her email him to say that they were withdrawn. W then became critical of her performance and put together a series of performance-related emails to suggest J was a poor performer. An independent, senior manager (V) was appointed to consider J’s future at Royal Mail. J emailed V regarding the performance concerns and referenced the protected disclosures. V queried this with W, who disingenuously showed V only the email from J withdrawing the allegations and suggested that the matter had been resolved. V dismissed J with a genuine and reasonable belief that J was a poor performer.
The ET found that J had suffered 2 [please read para 21 of the Judgment] specific detriments (such as harassment by W) under section 47B of the ERA 1996 on the grounds of the protected disclosures, but that the reason or principle reason that J had been dismissed was not due to any of her protected disclosures (pursuant to s.103A ERA 1996), because even though W was motivated by the protected disclosures, V was not. Royal Mail appealed and J cross-appealed to the EAT. Mitting J in the EAT resolved the matter in J’s favour and Royal Mail appealed that decision.
(1) Whose knowledge or state of mind is attributed to the employer under s.103A ERA 1996 – the innocent decision-maker or the line-manager with a discriminatory motivation?
In a judgment delivered by Underhill LJ, the Court of Appeal analysed the decision of Orr v Milton Keynes Council  EWCA Civ 62. In Orr, which related to the same issue in respect of section 98 of the ERA 1996 (the provision relating to ordinary unfair dismissal) it was held by a majority that the employer should only be attributed with the knowledge or the state of mind of “the person who was deputed to carry out the employer’s functions under section 98”. Jhuti followed Orr on the basis that the language in section 103A was identical to the language in section 98, and there was no justification for taking a different approach to s.103A. On the facts of this case, V was the person deputed with these functions, and so the s.103A claim failed.
The Court of Appeal helpfully considered some other factual scenarios obiter at -:
(2) Can an employee recover damages for dismissal consequent on detriment in the whistleblowing context?
Section 47B(2) of the ERA 1996 makes clear that it does not apply “where the detriment in question amounts to dismissal”. However, before the Court of Appeal, Royal Mail did not pursue an argument that this excluded any such claim, arguing instead that J had failed to plead her claim on this basis. The Court of Appeal disagreed with this pleading point, holding that since the section 47B(2) argument was not pursued, there was no obstacle ‘in principle’ to J recovering compensation for dismissal consequent on the detriments that had been found  however, practically, this was a question of fact for the ET to determine at the remedy hearing.
Whilst declining to express a concluded view, the Court of Appeal went on to consider, obiter, what impact 47B(2) had on such a claim given the importance of the issue in other cases. It observed (at ) that:
a) In CLFIS v Reynolds  EWCA Civ 439, losses suffered due to dismissal consequent on detriment arising from discrimination were held to be recoverable. There was no reason to adopt a different approach in the whistleblowing context;
b) That section 47B(2) only precluded a claim where the cause of action “amounts to a dismissal”;
c) It is arguable that in this kind of case, the relevant detriment is the prior treatment complained of, with the dismissal being only a consequence of the detriment; but that
d) This argument may not be so straightforward and careful attention had to be given in this context to Melia v Magna Kansei Ltd  EWCA Civ 1547.
A copy of the judgment, can be found here.
Simon Gorton QC and Jack Mitchell (instructed by Weightmans) appeared for the Appellant.
Note by Darshan Patel, Pupil at Old Square Chambers.
Court of Appeal, Royal Mail, Jhuti
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