At office Christmas parties across the land, 'Tainted Love' is a guaranteed (if rather cheesy) dancefloor-filler. But last month employment lawyers got much more excited about 'tainted information'. This is the misleadingly glamourous term for a string of cases which consider whether the discriminatory actions of a manager in a disciplinary process can make the dismissal discriminatory, even if the decision to dismiss was taken by someone else on non-discriminatory grounds.
The Supreme Court has now considered this issue in the context of whistleblowing. The case concerned a Royal Mail employee, Ms Jhuti, who made protected disclosures about possible breaches of Ofcom rules. She was pressurised by her manager into withdrawing her allegations, after which her manager began to criticise her performance and put her on a performance improvement plan (PIP). The 'evidence' of poor performance was largely constructed by her manager. She was ultimately dismissed by a different manager on the basis of her failure to meet the targets in the PIP.
The issue for the Supreme Court was whether the reason for Ms Jhuti's dismissal was her protected disclosures – and the answer was yes. The Court explained succinctly "if a person in the hierarchy of responsibility above the employee determines that she (or he) should be dismissed for a reason but hides it behind an invented reason which the decision-maker adopts, the reason for the dismissal is the hidden reason rather than the invented reason".
The decision isn't surprising but it highlights the risks for employers when a manager tries to manipulate internal processes for discriminatory or other unlawful reasons. The person appointed to be the decision-maker – whether for a disciplinary, redundancy or grievance process – needs to bring a critical eye and independent mind to the evidence.
In this case, the chronology of events should have alerted the decision-maker to the possibility that Ms Jhuti's manager was motivated by her protected disclosures. Ms Jhuti raised this issue herself, but the decision-maker investigated it in a rather cursory way. If an employee raises allegations of an improper or discriminatory motive during a formal process (e.g. a disciplinary), those allegations need to be investigated thoroughly. In some cases it might be necessary to start the formal process afresh or cancel it altogether. Although this can be very unattractive to employers, the unlimited compensation available for whistleblowing and discrimination claims means that it may well be the lesser of two evils.