Whistleblowing protection: Employee’s conduct separable from making a protected disclosure
The Court of Appeal recently held that the dismissal of a whistleblowing employee, for her conduct related to making protected disclosures, was not automatically unfair under whistleblowing protection legislation. The employee’s conduct could be separated from making the disclosures.
Here we consider this significant case of Kong v Gulf International Bank (UK) Ltd and the implications for whistleblowers.
The Law
Whistleblowing detriments – section 47B(1) Employment Rights Act (ERA) 1996:
“A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.”
“on the ground that” means the protected disclosure is a material influence.
Automatic Unfair Dismissal – section 103A ERA 1996:
“An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for dismissal is that the employee made a protected disclosure.”
Background
Ms Kong was employed by Gulf International (UK) Limited, a UK subsidiary of Bahraini Bank. She had been the Head of Financial Audit since 2016, and was summarily dismissed on 3 December 2018. By October 2018, Ms Kong had made a number of protected disclosures that there were insufficient safeguards on one of the templates they were using. She raised her concerns with the Head of Legal, Ms Harding, both over email and in an unscheduled meeting (initiated by Ms Harding), in which Ms Kong questioned Ms Harding’s awareness of the law. Ms Harding made a subsequent complaint to the CEO and Head of HR that Ms Kong had questioned her integrity, and as a result felt unable to work with her.
The Head of HR, CEO and Group Chief Auditor then decided that Ms Kong should be summarily dismissed. The reason given to Ms Kong in her dismissal letter was that her “behaviour, manner and approach had resulted in people not wanting to work with her”, an opinion which seemed to be widely held in the Company.
Employment Tribunal and Employment Appeal Tribunal's decisions
Ms Kong brought claims of whistleblowing detriment against the Head of Legal and automatic unfair dismissal under section 103A ERA 1996.
The Employment Tribunal (ET) held that:
- 1. The Head of Legal’s conduct towards Ms Kong was inseparable from the protected disclosure (and so did amount to whistleblowing detriment), but was out of time;
- 2. Ms Kong’s summary dismissal was because of her behaviour, and not her protected disclosure.
The ET decided that the principal reason for dismissal was not that Ms Kong had made a protected disclosure, but was in fact her conduct in questioning the Head of Legal’s competence. The ET decided there was a distinction to be drawn between the disclosure itself and the act of Ms Kong questioning the Head of Legal. Therefore, whilst Ms Kong was successful in her ordinary unfair dismissal claim (finding her behaviour had been broadly reasonable), she was unsuccessful in her automatic unfair dismissal claim and in her whistleblowing detriment claim.
The Employment Appeals Tribunal (EAT) upheld the ET’s decision. The EAT also clarified that it will rarely be possible to attribute to the employer the motivation of any person (in this case the Head of Legal) other than the decision maker – a principle that was first laid out in Royal Mail Group v Jhuti [2019] UKSC 55.
Court of Appeal's decision
Ms Kong appealed to the Court of Appeal on two grounds:
- 1. That the ET and EAT had made a mistake in finding that Ms Kong’s conduct in making the protected disclosure was separate from the disclosure itself; and
- 2. That the protected disclosure and an implied criticism of the Head of Legal’s awareness of the law and integrity were in fact “inseparable” from one another.
The Court of Appeal dismissed Ms Kong’s appeal, ruling that a Tribunal must first establish the reason for dismissal. Once the reason has been identified, a Tribunal must then ask itself whether that reason is in fact separate from the protected disclosure, or “so closely connected that a distinction cannot fairly and sensibly be drawn”.
The Court of Appeal agreed with the ET and EAT that the principal reason for Ms Kong’s dismissal was therefore her conduct in questioning Ms Harding’s legal awareness on two occasions (both orally and via email) in October 2018. It found that the protected disclosure itself, and the underlying issues behind this, played no part in the actual decision to dismiss.
The Court of Appeal confirmed there was no objective standard against which Ms Kong’s behaviour should be assessed, and there is no requirement for the behaviour to have reached a certain level of severity before it can be distinguished from the protected disclosure. Having said this, the Court of Appeal also said that if a whistleblower’s conduct “is blameless” or “not beyond ordinary unreasonableness”, it will be less likely to be the real reason for dismissal.
Comment on whistleblowing protection
The decision by the Court of Appeal confirms that there is a distinction between an employee’s conduct and the act of “blowing the whistle” itself. In essence, the separability principle can be widely drawn. It is crucial therefore that employers are clear about establishing the principal reason for dismissal. Even then, they must take care to ensure that a fair procedure has been followed and that dismissal is within the range of reasonable responses. Otherwise, the dismissal could still be unfair. In this case, Ms Kong’s behaviour was one incident in a series, all of which contributed to the thinking of the decision makers.
For employees, this case is a reminder to be careful about the way they make protected disclosures if they want the protection of the whistleblowing legislation.
There is no news yet about whether Ms Kong intends to appeal to the Supreme Court.
Protect, the UK’s whistleblowing charity, intervened in this case as a third party because of its public policy importance. It is Protect’s view that the decision will create uncertainty for whistleblowers.
For another recent article on the challenging issues related to whistleblowing protection see here.
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