Real Reasons For Dismissal

We are seeing an increasing number of cases where dismissed employees are seeking to claim that there was a hidden motive behind the decision to dismiss them and that there was an alternative real reason for their dismissal which was in some way unfair. In these cases, employees might be dismissed during their probationary period or given an explanation from their employer that their conduct, performance or attendance has not been satisfactory but they feel that the real reason for their dismissal relates to a protected characteristic, such as gender or race, or to the fact that they have blown the whistle about their employer’s practices.

In reality, there will occasionally be cases where various managers conspire to dismiss someone because of a protected characteristic or because they have blown the whistle. In these cases, the aggrieved employee will be able to bring claims relating to their dismissal and their treatment in the Employment Tribunal. The Tribunal will consider what the real, principal reason was for the dismissal and whether the employee has been discriminated against, victimised, harassed or subjected to a detriment and potentially make findings against the employer and all those involved.

There will also be cases where the dismissing manager has dismissed an employee based on evidence or information provided to them by a colleague which seems legitimate and that manager innocently proceeds to dismiss the employee concerned. However, the evidence or information supplied is tainted or manipulated to engineer that decision by that colleague whose motivations are discriminatory or connected to whistle blowing.

These so-called “tainted information” cases have proved difficult for the Tribunals to deal with as the usual considerations of what was in the mind of the dismissing manager do not capture the manipulation by those providing information or evidence to the dismissing manager.

Royal Mail Group Ltd v Jhuti

Supreme Court decision 2019

In this case, the Claimant raised concerns about a colleague breaching rules and regulatory requirements to her line manager. To retaliate, her line manager put her on a performance management programme and later she went off sick. She was dismissed for poor performance by another manager.

The Supreme Court found that the dismissing manager had been deceived by the presentation to her of a falsely constructed set of criticisms. The reason for dismissal was given in good faith but was “bogus” and the real reason for dismissal (the protected disclosure or whistleblowing) had been hidden behind an “invented reason”.

In giving their decision, the Supreme Court advised that it was the duty of the Court to penetrate the invention and that the Court could hold the employer liable for the real and hidden reason for dismissal. In this case, the Claimant, therefore, had been automatically unfairly dismissed.

University Hospital North Tees v Fairhall

EAT decision 2021

In this case, the Claimant raised concerns about the impact of a new policy on her district nursing team which she said increased workload and was leading to stress-related absences.  After a patient died, she informed a superior that she wanted to instigate the Trust’s whistle blowing policy.  A few days later she was suspended and 18 months later she was dismissed.

Again, in this case, it was found that the reason for the dismissal was the protected disclosures and that there were no legitimate conduct concerns for which the Claimant could have been dismissed.

The EAT distinguished this case from Jhuti though. There was no deception, the Panel’s principal reason for dismissal was the protected disclosure.

The EAT commented that Jhuti situations would probably be quite rare in practice and it is only in these situations that it will be necessary for the Tribunal to attribute a reason different to that of the dismissing officer to the employer for the dismissal.

What this means in practice

Often dismissed employees will suspect that there is a reason for their dismissal other than the reason that has been stated by the employer on the record.  The employee may not know whether the dismissing manager has been complicit in dismissing them for an invented reason or whether they have acted in good faith but have been misled.

These cases show that employees can bring claims in cases where the real reason for dismissal is either discriminatory or connected with a protected disclosure. In such claims, the Tribunal will consider the reason for dismissal in the mind of the dismissing manager but also look beyond this if it is an invented or hidden reason and the dismissing manager has been manipulated or misled.

For employers, this means that in some cases, they may have to produce evidence beyond that of the dismissing manager to show that the real reason for the dismissal was a fair one.  Employers need to be alert to employees raising such arguments during the disciplinary process.

Employers also need to take steps to ensure that a rogue manager cannot improperly manipulate or influence processes as they will be liable for the consequences, even if the dismissing manager is innocent and has been misled.