This case could be regarded as a long-running saga based upon whether the employee had been dismissed as a result of protected disclosures that had been made under Section 43A of the Employment Rights Act 1996 (Article 67A of the Employment Rights (NI) Order 1996). 

The employee made a protected disclosure which related to a colleague breaching regulatory requirements.  The reaction from her superior was one that questioned the claimants understanding of the regulations and was then set ‘unattainable goals’.

After a period of sick leave, the claimant was dismissed by another manager for poor performance.  This manager who made the decision knew nothing of the history and was told by the first manager that the concerns raised by the claimant had been dealt with.  The issue for the court was whether there was an unfair dismissal even though the manager making the decision was not aware of the nuances of the protected disclosure and how it had been dealt with.

The Tribunal dismissed the unfair dismissal claim, which was then overturned by the EAT. The decision of the EAT was subsequently overturned by the Court of Appeal who referred to Orr v Milton Keynes Council when it was held that the focus must be on the knowledge and state of mind of the person who made the decision to dismiss. This decision was appealed to the Supreme Court.

The Supreme Court acknowledged that their decision would go wider than merely decisions on the basis of protected disclosure but would be applicable to all cases of unfair dismissal and the extent to which they should look behind the actual knowledge of the decision maker.

The Supreme Court held that it was clear that the manager who made the decision to dismiss had been acting in good faith but that it was based upon the line manager deliberately hiding the real reasoning behind fictitious ones vis-à-vis the protected disclosure.

On the question of the applicable law, the Supreme Court held that the decision in Orr which had been the thrust of the Court of Appeal decision was not one that was satisfactory in this area nor were the facts comparable.  Therefore, Lord Wilson held at paragraph 60 that:

‘…it is the court’s duty to penetrate through the invention [of the reason for the dismissal] rather than to allow it also to infect its own determination.’

Accordingly, the Supreme Court looked behind the state of mind of the decision maker to see the real reason that the poor performance had arisen.  As a result, the decision of the Court of Appeal was overturned with automatic unfair dismissal arising due to the protected disclosure.

Practical Lessons

This decision tends to demonstrate that there has been a shift in the examination that the court will take for unfair dismissal cases.  It seems to be a wider one in that they will look behind the knowledge of the decision maker to see other factors, such as the protected disclosure in this case and how it had been dealt with. 

There is one key limitation to this though.  The Supreme Court stated that cases such as these will be uncommon.  This is because it requires not only requires the wrong reason for the decision but that it must also be dishonestly constructed by another superior of the employee.  For this reason, it is a slight widening of the law from Orr but should not be regarded as some panacea.
https://www.supremecourt.uk/cases/uksc-2017-0207.html