In the case of Kong v Gulf International Bank, the Court of Appeal (CoA) held that an employee was not automatically unfairly dismissed following the making of protected disclosures, as she was dismissed due to her conduct in making the disclosure; not for making the protected disclosure itself.
The claimant, Ms Kong, was employed by Gulf International Bank (the bank) and made a verbal protected disclosure to the bank’s Head of Legal, Ms Harding, regarding the bank’s use of an investment product which the claimant considered to be unsuitable. During a heated conversation the claimant questioned Ms Harding’s professional integrity and her knowledge of the legal issues involved. The claimant subsequently submitted a draft audit report to Ms Harding and others where she repeated her concerns. It was acknowledged that the claimant’s concerns amounted to protected disclosures (whistleblowing).
Upset that the claimant had questioned her professional integrity, Ms Harding complained to the bank’s Head of HR and CEO informing them that she could not continue to work with the claimant. The Head of HR and CEO advised the claimant that her behaviour had meant that her colleagues no longer wished to work with her and her behaviour had fallen “well short of the standards of professional behaviour” expected. The claimant was dismissed.
The claimant brought a number of claims including automatic unfair dismissal on the basis that the reason for her dismissal was the fact that she had made a protected disclosure.
The claimant failed in her automatic unfair dismissal claim in the tribunal and on appeal in the Employment Appeal Tribunal. Both said that the reason for the claimant’s dismissal had been her conduct in making the disclosures (namely the questioning of her professional awareness and competence) and not the protected disclosures themselves. The claimant appealed to the Court of Appeal.
Court of Appeal
The Court of Appeal (CoA) dismissed the appeal. The CoA found that the tribunal was required to consider what the principal reason for the dismissal was and concluded that the claimant’s insensitivity in the way she made the disclosures to Ms Harding was what had motivated the dismissal and not the protected disclosure itself.
The CoA found that the tribunal had taken the correct approach in determining the reasons in the minds of the decision makers when making the decision to dismiss. Although the reason for dismissal may be related to a disclosure, the CoA found that it did not automatically mean that the dismissal was because of the disclosure itself. If a claimant’s conduct is discrete from their making of a protected disclosure, the disclosure will provide the background for the conduct but it will not be the reason for dismissal itself.
It is understood that the claimant is considering appealing to the Supreme Court.
The decision confirms the position that it is the motivation of the decision maker(s) which is relevant when considering if a dismissal is fair. Although the tribunal found the claimant’s behaviour was broadly reasonable, the fact the decision-makers believed she had acted in an unacceptable manner was enough.
This judgment may be seen in a positive light by employers as it shows that an employee is not protected following unacceptable behaviour simply because they have blown the whistle.
Conversely, the decision could be seen to undermine the protection given to whistleblowers and may have the effect of discouraging employees from bringing whistleblowing claims given that protected disclosures by their nature often involve a criticism of another’s actions.
It should be noted that the CoA expressed a view that there are likely to be few cases where employers would be able to rely on upset or inherent criticism caused by whistleblowing as a separate and distinct reason for treatment from the protected disclosure itself. Employers should therefore continue to exercise great care when seeking to dismiss an employee where the decision to dismiss is materially impacted by the fact an employee has made a protected disclosure.