The Supreme Court has ruled a Royal Mail employee was unfairly dismissed for blowing the whistle, not for the alleged poor performance – based on false information – that the company’s HR department suggested was the reason for her dismissal.

The landmark judgment extends the scope of whistleblower protection and suggests that employers will need to ensure they have the complete information before dismissing an employee.

In October 2013, Ms Jhuti, a media specialist for the Royal Mail, alerted her line manager about concerns that a colleague was infringing Ofcom’s guidance and company policy around Tailor Made Incentives (TMIs) – a service the company offers to organisations that use mail as an advertising medium.

After raising her concerns, Ms Jhuti’s manager told her she was failing to meet the requirements of her role and repeatedly told that her performance was disappointing. She claimed a false picture of her performance had been created, because she had raied concerns, and that she was bullied.  She was placed on a six-week performance improvement plan in February 2014.

Ms Jhuti was signed off with work-related stress in March 2014 and never returned to the role.  She was later dismissed by the company and the reason given was her performance.  The HR manager who dismissed Ms Jhuti based her decision on a genuine belief that her performance had been inadequate.  However, the decision was based on information given to HR by Ms Jhuti’s manager.

Ms Jhuti took a claim for whistleblowing detriment and unfair dismissal to an employment tribunal.  The first instance tribunal found in favour of Royal Mail, but the Employment Appeal Tribunal decided that the real reason for the dismissal was the whistleblowing. However, this decision was subsequently overturned by the Court of Appeal, which held that the tribunal was only required to take only the processes of the decision-maker and the information the decision-maker had received into account.The Supreme Court’s judgment reversed the Court of Appeal’s decision, finding that the real reason for her dismissal was the fact that protected disclosures were made, and that the real reason had been hidden behind an invented one.

Protect on the Jhutiv vs Royal Mail Supreme Court

It is not unusual for whistleblowers to suffer at the hands of their managers who try to find reasons to rid themselves of the “troublemaker”, including by alleging poor performance. Too often on our advice line we speak to whistleblowers who have been discredited and disciplined on other issues after raising legitimate concerns.

This judgment is a step in the right direction.  Employers should tread with caution before dismissing someone where there is a background of that individual raising public interest concerns.

In this case, the decision maker had looked at the performance concerns and decided on genuine grounds that this was sufficient to determine a dismissal.  However, the reason that the performance issues were raised was because another manager had created a false picture of Ms Jhuti’s performance. The Supreme Court’s decision shows that Courts will need to look further into the “hidden” reasons for a dismissal, rather than just consider the motive of decision maker if that person is relying on “tainted” information given by another manager.

While this is a helpful judgment,  more needs to be done to ensure the employer has a positive duty to protect individuals and prevent harm from the outset.

Our legal officer, Elizabeth Gardiner, joined a discussion on Non Disclosure Agreements at The Lawyer’s conference on Managing Risk and Litgation in November. Protect shared the panel with the Solicitor’s Regulatory Authority and lawyers who advise employers concerns about the misuse of NDAs had been brought to light by the #Metoo campaign and the Parliamentary Women and Equalities Select Committee. Too often whistleblowers are confused or prevented from raising concerns post-employment by the use of NDAs.

It was good to note that practice is already changing, ahead of proposed legislation in this area. The Government has promised to improve the wording of NDAs – with a requirement that their limitations should be explained in plain English, as well as making it clear to anyone signing an NDA that information may still be disclosed to the Police and doctors. Protect argued that more work is needed here and that warranties should also be outlawed: it is no use having a beautifully worded NDA if another clause in the settlement agreement contains a promise that the employee knows of nothing that could be raised with a regulator. And thinking that NDAs will address the endemic sexual harassment in the workplace is naive – by the time the employee is agreeing an exit package, the damage is done. Protect would like much stronger obligations on employers to prevent this wrongdoing in the first place. Delegates asked interesting questions and it was a lively discussion.

Protect Chief Executive Francesca West said, “The leaked report into the maternity failings at Shrewsbury and Telford NHS Trust are deeply upsetting and shocking. Our immediate concerns go out to all the families affected.

What is very hard to comprehend is the sheer scale and length of time very serious issues have been able to continue in the maternity unit, unchecked. 

The pressures and challenges facing the NHS are well documented, and through our own training work with NHS Trusts, we know  some of the struggles staff are up against. But it is during such pressured times, particularly as our NHS is facing now, staff need to feel safe to speak up more, to stop harm. They need to be enabled and supported to speak up and raise concerns when they see or hear them. If the culture and senior leadership is so toxic they don’t bother to do so, or they feel they will be ignored, or worse, penalised for doing so, they will stay silent.

In our experience, where staff are unable to raise concerns elsewhere, they may resort to leaking reports. News reports claim the Trust has a toxic culture. We know transforming an organisation be it a hospital trust, financial organisation, global aid charity, retailer, or whatever type of business, is extremely difficult – but it needs to come from the top. We would be very interested to find out just what measures senior management and Board members were doing to fix the issues in this Trust – but more importantly – what they plan to do now to turn the Trust around.”

Protect attended the recent annual Impress  2019 conference.

The conference looked at the challenges facing the news industry and how the public consumes news, with information flying at them from countless directions and what information can be trusted.

Our Business Support Executive Sukhbir Singh attended a panel debate, ‘Who Cares About Public Interest News?’ with Polly Curtis from Tortoise media, Alison Preston of Ofcom and Adam Cantwell-Corn of Bristol Cable, which looked into investigative and regional journalism. The session also covered government funding and recommendations from the Dame Frances Cairncross Review which includes measures to tackle the uneven balance of power between news publishers and online platforms that distribute their content, and address the growing risks to the future provision of public-interest news.

The discussion also looked at the unintentional negative impact of technology on investigative journalism, where news is now consumed very quickly, and longer, slower high quality journalism is not read by many of the younger generation, who largely read their news online or from their peers, instead of traditional print.

Protect Chief Executive Francesca West will be leading the panel debate ‘Creating cultures that support speaking up and listening up’  at the 5th Annual Culture and Conduct Forum for the Financial Services Industry,  held on 14 November in central London.

The 5th Culture and Conduct conference focuses on exploring the role of ’purpose’ in creating healthy cultures; regulation and culture: Is SMCR (Senior Managers and Certification Regime) an effective tool for changing culture; whistleblowing; diversity vs tokenism: pay gaps and underrepresentation; training, education and staff development; lessons from other industries; reward, recognition and wellbeing; how should the Board take account of the conduct implications of the strategic choices it makes; how to encourage front, middle, back office, control and support functions to be responsible for managing the conduct of their business; outcomes of culture vs behaviour that drives it – which you should be measuring.

If you attended our panel debate and round table ‘Safeguarding & Whistleblowing in the third sector’  on October 24th – thank you for coming – we hope you agree it was an interesting and insightful morning.

We are sending you this reminder that you are still eligible to take part in our third sector Benchmark pilot – to test the culture and effectiveness of speak up arrangements in your organisation. The deadline to complete the 360 Benchmark is Friday 29 November.

Protect is the UK’s only whistleblowing charity and supports more than 3,000 whistleblowing cases each year. We are offering access to our 360 Benchmark for up to 40 charities to measure how effective their whistleblowing culture and arrangements are through using our Benchmark tool.

Francesca West, Chief Executive of Protect, said: “Following the very well-documented Oxfam scandal, we recognise there is much to be done to support the third sector.”

In return, once all 40 charities have completed the 360 Benchmark, data will be analysed and discussed anonymously. We are looking to set up a working group to analyse the results and share best practice.

So do please complete your Benchmark asap – remember, remember, 29 November!

To receive your Benchmark log in, take part in the pilot working group, or if you have any queries about the pilot, please get in touch with our Development Director Jon Cunningham, or call Jon on 020 3117 2520.


Protect Chief Executive Francesca West will join Oxfam whistleblower Helen Evans at the Marketing Society’s global ‘Bravest Conference’ celebrating strong, brave leadership.

Until 2015, Helen was Global Head of Safeguarding at Oxfam GB. In 2018 she spoke publicly about sexual exploitation and abuse at Oxfam GB, precipitating a government inquiry and Charity Commission investigation.

Taking place at the Science Museum (November 6), Francesca and Helen will talk to delegates in their presentation ‘The Strength to Speak up’ and share with delegates why whistleblowing is so important, and why organisations need to listen to staff. Helen, who continues to work in the charity sector as Director of Dravet Syndrome UK, will speak about her experiences as a whistleblower and her work with NGO Safe Space and what #AidToo means for charity brands.

Francesca West said, “It is important to acknowledge outstanding bravery and inspiring leadership in the workplace, which Helen exemplifies. We need more organisations from top management down to better understand the real value of staff who speak up. Thank them for speaking up – they are offering up invaluable information which could stop risk or harm to your organisation and others.”

Amongst other inspiring speakers, is Gina Miller who in 2016 successfully challenged the UK Government over its authority to implement Brexit, winning in both the High Court and Supreme Court in what is hailed as the most important British constitutional case since the 1700s.

Gina continues a ‘democracy and legality’ watching brief of the UK Government’s activities as Brexit progresses.  In May 2019 she launched the Remain United campaign which successfully facilitated a tactical voting campaign during the 2019 European Parliament Elections- the first time this was done and has published her first book ‘Rise: Life Lessons in Speaking Out, Standing Tall & Leading the Way’.

Read about the other inspiring speakers taking part in the Bravest Conference.