Kong V Gulf International Bank (UK) Ltd

Whistleblowing/Protected Disclosure

Is it possible to lawfully dismiss an employee regarding their conduct when blowing the whistle?

Background

The claimant, Ms Kong, was employed by Gulf International Bank as a senior business auditor. Ms Kong raised several concerns which were held to be protected disclosures under whistleblowing legislation, including one to the firm’s head of legal, Ms Harding, regarding a legal document being unsuitable and also questioning Ms Harding’s legal awareness of the matter. Ms Harding complained to the Head of HR and CEO that the employee had questioned her professional integrity and that she had “reached the end of her tether” with the employee.  This led to a disagreement between Ms Harding and Ms Kong, during which Ms Harding walked out of Ms Kong’s office, slamming the door, and subsequently making comments to other employees.  The Head of HR and CEO eventually decided that Ms Kong should be dismissed for this and other incidents which they felt showed a “lack of emotional intelligence”, and that further meant colleagues were reluctant to work with her.  Upon her dismissal, Ms Kong asserted that she was a whistleblower and brought claims for detriment because of how Ms Harding had treated her during their altercation and a claim for automatic unfair dismissal.

The Employment Tribunal

It was found that Ms Kong had been subjected to detriments, though her claims were out of time. Her automatic unfair dismissal claim was rejected as it was held that the actual reason for dismissal was not due to her protected disclosure but was in fact due to her conduct in questioning Ms Harding’s professional awareness, integrity and competence.  Ms Kong appealed.

The Employment Appeals Tribunal (EAT)

The EAT found that Ms Kong’s protected disclosure and the criticisms of Ms Harding were properly distinguished; Ms Kong’s conduct in questioning Ms Harding’s professional awareness and competence was the principal reason for dismissal, and not the protected disclosure.  The appeal was dismissed in July 2021.  The case was then taken to the Court of Appeal (COA).

The Court of Appeal (COA).

The COA ruled that the employee had blown the whistle on several occasions, and this was the reason that Ms Harding had complained about Ms Kong. It was held that this was an unlawful act of detriment.  However, the reason for dismissal was not the fact that Ms Kong had blown the whistle, but the way that she went about it.

The judgment stated that although the reason for dismissal may be related to a disclosure, it did not automatically mean that it was in fact because of the disclosure itself, and there may be a distinction between the disclosure and the offensive or abusive manner in which it was made.

Lord Justice Underhill wrote in his judgment:

“I do not see our decision as turning on any question of principle or as opening any general breach in whistleblower protection. The employment tribunal reached the conclusion that the principal reason why the claimant was dismissed was what the decision-makers perceived as the seriously inappropriate way in which she had challenged Ms Harding’s competence/integrity (which reinforced concerns that that they already had about a lack of emotional intelligence in dealing with colleagues) and was not the fact that she had made protected disclosures.”

This effectively means that that an employer can act against an employee who makes a protected disclosure in an unreasonable, capricious or unacceptable manner, or who acts in an unacceptable way in relation to a protected disclosure.

Notes for Employers

Whilst this case does illustrate that an employer can dismiss or take disciplinary action against an employee who has blown the whistle where the way in which the concerns are raised is inappropriate or leads to a breakdown in the mutual trust and confidence between the parties, it is fundamental to distinguish that the reason for the dismissal (or other sanction open to the employer) would be misconduct and/or the relationship breakdown, as opposed to the act of whistleblowing itself.

This remains a very fact specific and delicate area.  The COA has stated that there are likely to be few cases where employers would be able to rely on conduct caused by whistleblowing as a separate and distinct reason.

The employer will need to set out a detailed explanation as to the real reason for the dismissal, with clear separation from the protected disclosure. If it is found that the reason for the dismissal or other disciplinary action is in fact that the employee blew the whistle (rather than the conduct), then an unfair dismissal and/or unlawful detriment claim will almost certainly follow, with significant cost risks.

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