Unfair dismissal—when non-decision-maker’s motivation will be attributed to employer (Kong v Gulf International Bank (UK) Ltd)

In an unfair dismissal case, the Jhuti exception, when the motivation of a non-decision-maker can be attributed to the employer when ascertaining the reason for dismissal, is narrow and exceptional and three features must be present for that exception to apply—1) the non-decision-maker must have sought to procure the dismissal for a proscribed reason, 2) in making the decision to dismiss, the decision-maker was peculiarly dependent on that person as a source for the underlying facts and information concerning the case, and 3) that person’s role or position must be of such a kind to make it appropriate for their motivation to be attributed to the employer, according to the Employment Appeal Tribunal (EAT).

Kong v Gulf International Bank (UK) Ltd (EA-2020-000357-JOJ, EA-2020-000438-JOJ)

 What are the practical implications of this judgment?

Following the Supreme Court judgment in Jhuti, it could no longer be assumed that where there is a dismissal, it is the dismissing officer alone whose actions and reasons are imputed to the employer. If there was a manager motivated by an unlawful reason who manipulated the decision-taker then it was possible that the unlawful reason could be taken to be the real reason for dismissal for unfair dismissal purposes. This meant that employers, particularly those larger employers with a management hierarchy, taking a decision to dismiss would be well advised to carry out a thorough audit of the decision chain to satisfy themselves that there was no hidden reason for an employee’s potential dismissal or risk being held liable if there was a hidden, unlawful reason.

The judgment in this case confirms that Jhuti creates a narrow exception to the standard rule that only the decision-taker’s motivation is considered, and it sets out the three common features that must be present for the exception to apply:

• the person whose motivation is attributed to the employer sought to procure the employee’s dismissal for a proscribed reason;
• the decision-maker was peculiarly dependent upon that person as the source for the underlying facts and information concerning the case;
• that person’s role or position was of the particular kind described in either scenario (i.e., they had some responsibility for the investigation or were in the hierarchy of responsibility above the employee), so as to make it appropriate for their motivation to be attributed to the employer.

This judgment also provides a very helpful real-world application of the principles in both Jhuti and in Martin/Panayiotou, showing how they work in a not untypical whistleblowing scenario.

Case details

• Court: Employment Appeal Tribunal
• Judge: His Honour Judge Auerbach
• Date of judgment: 10 September 2021

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