Education Law Speed Read – 26 March 2018

Royal Mail Group Ltd v Jhuti (UKEAT/0020/16)

This week we look into the decision in Royal Mail Group Ltd v Jhuti (UKEAT/0020/16). This case considered the meaning of a “series of similar acts or failures” in relation to whistleblowing detriment cases and the time limits surrounding them.

Facts

Jhuti made an alleged protected disclosure to her line manager. Jhuti alleged that her line manager had then pressured her to withdraw her allegations and had imposed unreasonable performance targets on her. This all took place between November 2013 and February 2014.

Jhuti became ill due to stress and was signed off sick by her GP. Royal Mail subsequently offered Jhuti three months’ salary to leave her job. Jhuti rejected this offer and raised a formal grievance. Jhuti was later offered a year’s salary to leave, which she again rejected. Jhuti was dismissed in October 2014, some seven months after the final settlement offer.

Jhuti brought a claim in the Tribunal alleging unfair dismissal and detriment as a result of her protected disclosure. The detriments claimed included unreasonable performance targets, monetary offers to end her employment and a failure to investigate her grievance. Her grievance was later rejected by Royal Mail around two weeks before the hearing date.

The Employment Tribunal (ET) stated that the detriments Jhuti suffered amounted to a “series of similar acts or failures”, allowing her claim to have been made in time for the purposes of section 48(3) of the Employment Rights Act 1996 (ERA). The ET upheld her claims in relation to the unreasonable performance targets and pressure to leave employment but rejected her claim relating to the grievance as it had been investigated by the time of the hearing.

Both parties appealed to the Employment Appeal Tribunal (EAT) on different grounds.

EAT decision

The Royal Mail argued in the EAT that Jhuti’s claim was time barred on the basis that she had failed to show any actionable detriment after 30 March 2014 (when the final offer for her to leave employment was made). The EAT agreed with the Royal Mail that in order to allow a claimant to claim for detriments that would otherwise be time barred there had to be at least one in-time actionable act.

Therefore, the EAT held that it was not open to the ET to find a connection between the upheld detriments and the dismissed grievance claim as the latter was not actionable due to the grievance having been resolved prior to the hearing. Consequently, the EAT held that Jhuti was barred from bringing her claim due to it being out of time.

The EAT criticised the ET for taking a narrow approach in relation to the agreed list of issues and that to do so, given the facts that had arisen after the list was agreed but prior to the hearing, “had not done justice between the parties”.

Effect

Employer’s should be cautious where a protected disclosure has been made to ensure that the employee does not suffer detrimental treatment as a result.

This case highlights that in order to bring a claim for a series of detriments, at least one should be both actionable and brought within the statutory time limit. If this is not the case, a potential claimant will be unable to rely on detriments suffered more than 3 months prior to bringing their claim unless an extension of time is granted.

Mirab v Mentor Graphics (UK) Limited

In Mirab v Mentor Graphics (UK) Limited, the Employment Appeal Tribunal (EAT) found that the Employment Tribunal (ET) had erred in finding that in a redundancy process, an employer need not consider “bumping” where it had not been raised by an employee.

Facts

Dr Mirab was employed by Mentor Graphics (UK) Limited (Mentor) in February 2013, as the Director of Sales. In February 2015, the sales force of the division was split into two, with some of Dr Mirab’s sales team being reassigned to a separate automotive subdivision.

In November 2015, it was decided that Dr Mirab’s division was not meeting its growth objectives and it was decided that his role was no longer required.

Dr Mirab was informed that he was being placed at risk of redundancy in February 2016 and a consultation process began. Mentor provided a list of internal alternative positions, but Dr Mirab did not find any of them suitable. Dr Mirab was subsequently made redundant.

On appeal, Dr Mirab suggested that he should have been compared with Account Managers outside of the UK, (a subordinate position to his Director role). Mentor stated that they only had to consider positions within the UK and in any event, Dr Mirab had not been employed as an Account Manager.

Employment Tribunal

Dr Mirab brought a claim for unfair dismissal to the ET. The ET found that there was a redundancy situation which constituted a potentially fair reason for his dismissal.

When assessing the fairness of the redundancy process, the ET found that Mentor had correctly looked for alternative positions and did not need to consider bumping Dr Mirab into an Account Manager role, because the obligation on an employer to consider bumping only arose if the employee raised it.

The ET found that Dr Mirab had not indicated that he was willing to work as an Account Manager, and therefore Mentor did not need to consider making one of its Account Managers redundant in order to give Dr Mirab their role.

Employment Appeal Tribunal 

The EAT found that the ET had erred in its approach to considering alternative positions.

The ET’s finding that an employer had no obligation to consider subordinate positions unless it had been raised by the employee was wrong.

The ET should have considered whether Mentor’s decision making process fell outside the range of reasonable responses because it had failed to considered bumping another employee. The ET was also incorrect in finding that Dr Mirab had not indicated that he would consider an Account Manager role.

However, the EAT confirmed that there is “no rule that an employer must always consider bumping in order to dismiss fairly in a redundancy case” and that the test will always be on the particular facts of a case, whether the employer’s actions were within the range of reasonable responses.

Comment 

Although the EAT did confirm that bumping need not be considered in every case of redundancy for there to be a fair process, it does mean that employers need to be particularly aware of the possibility of bumping even where the at-risk employee does not raise it. To fail to do so could mean that a redundancy is procedurally unfair.

If you have any queries on the above and how it will affect you, please do not hesitate to contact a member of our education team.