The Supreme Court has held that, where in a potential dismissal scenario an individual more senior than the decision-maker puts forward false grounds for dismissal which are then adopted by the decision-maker, the true reason for dismissal will still be attributed to the employer.

The Claimant in this case worked for Royal Mail. She flagged to another employee, W, what she considered to be potential breaches of regulation by Royal Mail. W told her that this allegation could cause problems for everyone and suggested that she should retract it, and at the same time told her that she was underperforming. The Claimant retracted the allegation. Subsequently W began to monitor the Claimant’s performance, imposing a list of requirements which changed a number of times and which included a request for her to make a list of her key clients from her previous employment, which the Claimant thought would put her in breach of the law. She complained to HR but nothing was done.

Subsequently a new manager, V, was appointed to decide whether the Claimant’s employment should terminate on the grounds of poor performance. V was given information about the Claimant’s performance but not about the allegations she had made. V held a meeting with the Claimant who said that she was being “sacked for telling the truth”. Upon discussing this with W, V was told only that the Claimant had made allegations about breaches which she had agreed to retract. V subsequently terminated the Claimant’s employment on the grounds that she had not complied with W’s performance improvement plan and the Claimant claimed that she had been automatically unfairly dismissed.

Whilst the Employment Tribunal found against the Claimant as her allegations were unknown to V and had not been part of her decision, the EAT disagreed. It found that V had not had the full facts and had been manipulated by W, and that the decision made the dismissal automatically unfair and could be attributed to Royal Mail.

The Supreme Court held that courts have to look at the real reason behind a dismissal. In most cases this will involve looking no further than the decision-maker’s decision, but if it appears that the real reason for dismissal is hidden from the decision-maker by a more senior employee behind an invented reason, that real reason must be taken as the true reason for dismissal, even if the invented reason is adopted in good faith. It also had regard to the detriment provisions in s.47B of the Employment Rights Act, which protects workers against detriments by other employees and in so doing makes the employer vicariously liable for their acts. On that logic, the actions of W could also be attributed to the employer in this case.

Comment: The judgment in this case noted that these principles are likely to apply to ordinary unfair dismissal cases as well as those concerning automatic unfair dismissal. Therefore, employers must take extra care in dismissal cases where there is “cabinet decision-making”.  However, in practice this is unlikely to occur very often and the Supreme Court acknowledged that the facts of this case were unusual.

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