The EAT (HHJ Auerbach) has today handed down its judgment in Kong-v-Gulf International Bank (UK) Limited  EA-2020-000357-JOJ which provides an illuminating discussion of the narrow scope of the principle in Jhuti and discusses why it shall rarely be found to apply.
The claimant was employed by the respondent as Head of Financial Audit. A draft audit report
prepared by her raised concerns that a legal agreement relating to a certain financial product did
not provide sufficient protection against certain risks arising from the involvement of non-bank
counterparties. It was not disputed that the claimant’s communications of her concerns about
this, and other aspects, amounted to protected disclosures.
The Head of Legal, who had been responsible for the agreement, disagreed with the claimant’s
view. She went to the claimant’s office and a discussion took place, following which there were
exchanges of emails. The Head of Legal considered that the claimant had impugned her integrity,
and raised the matter with the Head of HR and others. She indicated that she was very upset, and
could not see how she could continue working with the claimant. She declined mediation. The
Head of HR and CEO became inclined to the view that the claimant should be dismissed. The
Group Chief Auditor agreed to that course and the claimant was then dismissed.
The claimant complained of detrimental treatment and unfair dismissal for having made protected
disclosures. One complaint of detrimental treatment – relating to the Head of Legal’s conduct –
would have succeeded, but was out of time. The complaint of unfair dismissal for having made
protected disclosures failed. However, the claimant was found to have been ordinarily unfairly
dismissed. The claimant appealed against the failure of the unfair dismissal protected disclosure
The EAT’s discussion of Jhuti
The EAT dismissed the appeal and gave a detailed explanation of the limited scope of the Jhuti principle.
It firstly charted the basis of the Jhuti principle in the following terms:
to the employer is only that of the decision-maker(s) continues to apply. Secondly, there is no warrant to extend the exceptions beyond the scenario describe by Underhill LJ [in the Court of Appeal judgment in Jhuti], which will itself be a relatively rare occurrence, and the surely highly unusual variation encountered in Jhuti. Thirdly, whether in the scenario contemplated by Underhill LJ, or in the variation described by Lord Wilson, two common features are that (a) the person whose motivation is attributed to the employer sought to procure the employee’s dismissal for the proscribed reason; and (b) the decision-maker was peculiarly dependent upon that person as the source for the underlying facts and information concerning the case. A third essential feature is that their role or position be of the particular kind described in either scenario, so as to make it appropriate for their motivation to be attributed to the employer.
Turning to the facts of the appeal the EAT held that the distinction between questioning a person’s ability as opposed to their integrity was not the sort of invention which the Supreme Court had in mind in Jhuti
of the sort of manipulation or invention that would be a necessary ingredient for Jhuti purposes.
The EAT also clarified how a person was to be judged to be within the hierarchy above an employee for the Jhuti principle to ‘bite’
Finally for the Jhuti principle to ‘bite’ the manager must actively seek the dismissal of the employee
position, informally, of being a complainant or witness.
The EAT’s judgment repeats comments made by a separate division of the EAT (HHJ Taylor) in
University Hospital North Tees & Hartlepool NHS Foundation Trust v Fairhall 
UKEAT/0150/20 that the Jhuti principle is limited and only applies on extreme facts. Thus it will not be a test which is readily satisfied.
The judgment also provides clear guidance that the Jhuti principle will not be engaged as regards persons whom have no direct managerial responsibility over the dismissed employee and where they do not actively seek the dismissal of the employee. Significant invention is required before it can be said to apply.
Perhaps the best guidance for practitioners to be taken from the decision is to heed the words of HHJ Taylor in Fairhill and recognise that Jhuti shall rarely be a case that needs to be considered by the Employment Tribunal at all.
Nicholas Siddall QC acted for the successful Respondent in the appeal in Kong and has a particular interest in whistleblowing cases in the financial sector.