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Article on Whistleblowing CA guidance for ELA Briefing


Peter Linstead assesses the impact of the Court of Appeal’s decision in Royal Mail Ltd v Jhuti [2017] EWCA Civ 1632. It held that when considering whether the principal reason for dismissal is that the claimant made a protected disclosure, only the motivation of the decision-maker can be taken into account under s.103A ERA.

Additionally, if dismissal is on the basis of fabricated evidence, which the line manager has provided because the claimant made a protected disclosure, that will not be an automatically unfair dismissal.

This reversed the decision of the EAT, which had held that a dismissal decision made in ignorance of the truth, which has been manipulated by someone in a managerial position, can be attributed to the employer.

This case is more than simply a reiteration of the principle in CLFIS, which said broadly the same thing in relation to dismissal as an act of discrimination under the EqA. LJ Underhill’s judgment in Jhuti gives important new guidance in various respects e.g. the importance of the analysis of the construction of s.103A ERA; consideration of certain factual circumstances; how the test would apply depending on the involvement of the third party or line manager; claiming for damages when there is no liability for dismissal under s.103A.

Read the full article here.

Barristers: Peter Linstead
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