Royal Mail Group Ltd (Respondent) v Jhuti (Appellant)

[2019] UKSC 55

UKSC 2017/0207
Royal Mail Group Ltd (Respondent) v Jhuti (Appellant)
On appeal from the Court of Appeal Civil Division (England and Wales)

The appellant was employed as a media specialist in the MarketReach unit of the respondent’s sales division. The role involved promoting the use of mail by businesses engaged in marketing. The appellant was initially on a trial period of 6 months. Shortly after she commenced employment the appellant observed what she believed were irregularities in the way that colleagues were offering customers what were described as ‘tailor-made incentives’ (‘TMIs’). She believed it was a breach of OFCOM guidance for such incentives to be given in respect of ongoing business. The appellant reported her concern that such breaches might be occurring to her immediate manager. She had a meeting with her immediate manager about this issue. The ET found that the manager put her under pressure to withdraw her allegations, with a veiled threat that if she did not do so her employment would not continue beyond the end of her probation. The appellant asked her manager what she should do. He said that she should write to him withdrawing her allegations and saying that she had misunderstood the rules governing the use of TMIs, which she did.
Over the following months the appellant’s manager continued to criticise her performance and behaved in a way which the appellant considered to be harsh and unreasonable. The appellant complained to HR mentioning in emails that she had drawn attention to earlier allegations about the misuse of TMIs and eventually raised a grievance about her treatment by her manager. She was later signed off sick with stress at work by her GP and never returned.

The respondent sought to resolve the Appellant’s situation through Ms Pauline Vickers, Head of Sales Operations. Ms Vickers was sent a file by HR containing the emails passing between the appellant and her manager but not the correspondence about the TMI allegations. The appellant was too unwell to attend a meeting but did send Ms Vickers a series of emails which referred to making previous allegations about the misuse of TMIs. Ms Vickers asked the Appellant’s former manager to comment. He sent her an email describing how he had dealt with the appellant’s concerns and how she had accepted that they were based on a misunderstanding. He supplied a copy of the appellant’s email in which she said she had gotten her wires crossed, but none of the earlier correspondence. Ms Vickers accepted his account and dismissed the appellant on the grounds of unsatisfactory performance. This was upheld on appeal.

The issue is:

The correct test to be applied when an employee (A) alleges that they have been unfairly dismissed by reason of having made a public interest disclosure. In particular, if, and in what circumstances, the actions of an employee (B) are treated as those of B, or attributed to, the employer of A and B.

The Supreme Court unanimously allows the appeal.

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