25 November 2020

Covid-19 - An Employment Game Changer, But So Is Jhuti - Blog

Covid-19 has touched every aspect of our lives in 2020, including employment, and not for the good in any respect.  There has been so much talk of furlough, social distancing, and sadly now redundancies that things are looking bleak for many employers and employees alike.  But before you feel the need to reach for your comfort blanket (whatever particular form that takes…), I’ll get to my point.  Given all the focus on Covid-related employment matters, you’d be forgiven for believing that nothing much else has happened in employment law this year. But that would be wrong, and it would also be wrong to think that the Supreme Court’s decision in Jhuti v The Royal Mail just applied in whistleblowing cases.

The principle established in the Jhuti case is that if someone in the hierarchy above the employee knows about a disclosure, and the individual is subjected to a detriment or dismissal, then the manager making the decision about the employee is deemed to have known about the disclosure, even if that knowledge was kept from them.  This principle is now also applied in other dismissal situations, as can be seen in Cadent Gas Ltd v Singh, and Uddin v London Borough of Ealing.

Prior to the Jhuti decision, landmark case law had established the principle that the dismissing manager’s decision should be judged on what they knew at the time of their decision to dismiss.  So if the investigating manager had not been advised of an important piece of evidence and had therefore not passed that information to the hearing manager, the decision to dismiss could still be held to be fair.  This is because the hearing manager’s decision was made on the facts available at the time, and on those facts they had formed a genuine belief, on reasonable grounds, after a reasonable investigation.  That principle is now displaced, and if a piece of information is held, or something known, by someone in the hierarchy above the dismissed employee, that information is deemed to be known by the hearing manager, potentially rendering the dismissal unfair.

Now that we have to work with this new principle of imputed knowledge, what can you do to protect your organisation from a finding of unfair dismissal?  Well the starting point would be to ensure that your investigators are properly trained both in your organisation’s procedure and the legal requirements.  They also need to undertake their investigations professionally and fairly, and of course have the confidence to withstand interference from more senior colleagues in the investigation.  It is also really important to make clear in your code of conduct that giving false information to an investigator; withholding relevant information; or inappropriately interfering with an investigation, is considered a gross misconduct offence.  Finally, you should encourage employees to exercise their right of appeal so that any information that subsequently comes to light can be included in the hearing.

Of course, a dismissed employee’s right to appeal can be a double edged sword as if the appeal is based on a flawed procedure, the employer can re-run the procedure correcting the previous flaws, and then take the decision to dismiss again, but this time fairly.  Tough, but strangely fair and lawful.

If you’ve got this far, I hope you enjoyed this blog, and that it took your mind off the ‘c’ word for at least a minute or two!

If you have any questions you would like to ask, don’t hesitate to contact us at KLC.

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