14/11/2022

In Jhuti -v- Royal Mail Group ET/2200982/2015, an employment tribunal has awarded substantial compensation for unfair dismissal and detrimental treatment arising from a protected disclosure. The employment tribunal had held a separate remedies hearing followed a protracted whistleblowing case that had previously been subject to an appeal in the Supreme Court – Royal Mail Group Ltd -v- Jhuti [2019] UKSC 55.

Facts

Ms Jhuti was employed by Royal Mail from September 2013 until her dismissal in October 2014. Her employment was subject to a six-month trial period. Shortly after her employment commenced, Ms Jhuti formed the view that members of her team were failing to comply with regulatory guidance, which prohibited incentives being offered to existing customers. In doing so, they were securing bonuses for themselves and indirectly for their team leader, thereby in effect defrauding the company. Ms Jhuti reported her concerns to the team leader, who subsequently fabricated concerns regarding Ms Jhuti’s alleged inadequate performance to engineer her dismissal for failing to successfully complete her trial period.

Ms Jhuti was pressurised into retracting her allegations and thereafter subjected to a rigorous performance review process, which included unrealistic targets, lengthy review meetings and an improvement plan developed to deliberately set her up for failure.

Ms Jhuti consequently became extremely unwell and was signed off due to work-related stress in March 2014.

In April 2014, an independent manager was brought in to decide whether Ms Jhuti’s employment should be terminated on grounds of performance. The decision-maker had no previous dealings with Ms Jhuti and was asked to review the evidence provided to her, rather than to investigate the matter herself. Emails sent by the claimant regarding procedural irregularities were withheld from the decision-maker, and she accepted the team leader’s assertion that Ms Jhuti’s performance had been unsatisfactory.

During this time, Ms Jhuti was medically unfit to meet with the decision-maker or to effectively present her case. In her absence, the decision was taken to dismiss her on the basis that she had failed to meet the required standards of performance and was unlikely to do so in the future.

The case has been the subject of a number of appeals, eventually reaching the Supreme Court in June 2019. The Supreme Court held that Ms Jhuti had been automatically unfairly dismissed and detrimentally treated for ‘blowing the whistle.’ The matter was subsequently remitted back to the employment tribunal to consider the level of compensation to be paid to Ms Jhuti (see remedies hearing below).

Decision

At the remedies hearing, the tribunal found that Ms Jhuti had suffered a ‘lengthy and intense period of bullying’ which had left her with PTSD and recurrent episodes of severe depression, which led to the breakdown of her relationship with her daughter. The medical evidence was that she would never work again due to the combined effects of her illness and the stigma of six years’ unemployment since her dismissal.

The tribunal ordered that Ms Jhuti should be compensated in full for lost earnings up to her normal retirement age of 67. She was also awarded £55,000 general damages for psychiatric injury, £40,000 for injury to feelings, £12,500 aggravated damages and 0.5% uplift for unreasonable failure to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures.

Comment

This case is noteworthy for a number of reasons, including how to deal with a person who lacks mental capacity to give instructions in the tribunal.

In terms of whistleblowing, the Supreme Court held that the dismissal was automatically unfair despite the fact that the dismissing manager was unaware of Ms Jhuti’s protected disclosures as they were hidden by manager who dressed it up as allegations of poor performance.

These allegations of poor performance were adopted in good faith by the decision-maker, however the real reason for the dismissal was the protected disclosures. The Supreme Court found it permissible to attribute to the employer the manipulator’s state of mind, rather than that of the deceived decision-maker.

Whilst Ms Jhuti was found to have a lifelong vulnerability and predisposition to develop anxiety, depression and panic attacks, the Court repeated the ‘eggshell skull’ rule i.e., you take the person as you find them.

Detailed medical evidence was adduced at the remedy hearing. One report from Dr Lockhart, Consultant Psychiatrist, stated:

‘The disorder would not have occurred had her employers made a different response to her report of breaches of policy and regulations. In particular, other factors in her account of events, if established as having happened, were in my opinion powerful triggers for her subsequent psychiatric disorder. These factors are lack of an appropriate response from management and human resources, what appear to have been punitive measures against her over several months…, and delays in dealing with her grievance.’ (our emphasis)

Clearly the action, or inaction, of HR when handling a complaint can impact the size of any award. Compensation for unfair dismissal claims can only cover financial loss, however compensation for automatically unfair dismissal for whistleblowing is unlimited. It is irrelevant whether the person’s belief is wrong; it will still be protected.

In certain cases, including unfair dismissal and detriment cases, failure to comply with the LRA Code of Practice on Disciplinary and Grievance Procedures (ACAS Code in GB) may increase or decrease any award to by between 10% and 50%. This can be a significantly increase any award, partially one where the level of compensation payable is high to begin with.

We encourage HR to always ensure probing questions are asked of managers when making decisions regarding individuals’ employment, but particularly where they may have been a history disclosures or grievances raised. This ensures employers can defend any allegation that the decision to discipline or dismiss an employee is based on the merit of the case, and not connected to any other reason.