Although it is against the law to dismiss someone for making a protected disclosure (blowing the whistle), the Court of Appeal has held in Kong v Gulf International Bank (UK) Ltd that a worker can be fairly dismissed if the dismissal stemmed from the way in which the disclosure was made, as opposed to the content of the disclosure itself.
Basic facts
On 22 October 2018, Ms Kong, the bank’s head of audit, made a protected disclosure to Ms Harding, the head of legal, about an industry-standard financial compliance template that the bank was intending to use for non bank-to-bank lending, but which Ms Kong said was designed for bank-to-bank lending only. She then sent Ms Harding an email the next day repeating some of what she had said to her at their meeting.
Ms Harding subsequently complained that Ms Kong had questioned her professional integrity to such an extent that she could no longer work with her. After being summarily dismissed on 3 December, Ms Kong brought a number of claims, including ordinary unfair dismissal and automatically unfair dismissal by reason of having made protected disclosures.
Tribunal and EAT decisions
In relation to the claim for ordinary unfair dismissal, the tribunal held that it was unfair both “substantively as well as procedurally”. Although it also found that Ms Kong had been subjected to an unfair detriment with regard to one of her whistleblowing claims, it ruled that it was out of time.
With regard to the automatically unfair dismissal claim, the tribunal concluded that the principal reason was not the protected disclosure, but the way in which Ms Kong had gone about questioning Ms Harding's professional awareness and competence. As this was a separate reason related to her conduct, as opposed to the protected disclosures themselves, it dismissed this claim. Ms Kong appealed that decision.
The EAT (weekly LELR 744) agreed that the tribunal had directed itself properly in terms of the way it had separated the reason for dismissal from the protected disclosures. It was clear from the email sent to Ms Kong by the senior individuals who decided to dismiss her, that the principal reason was the way in which she had impugned Ms Harding’s professional integrity, not the protected disclosure.
Decision by Court of Appeal
The Court of Appeal agreed, holding that the tribunal was entitled to distinguish between the protected disclosure itself and conduct associated with making that disclosure, particularly if it was offensive, abusive or irresponsible.
In a case which “depends on identifying, as a matter of fact, the real reason that operated in the mind of a relevant decision-maker in deciding to dismiss …, common sense and fairness dictate that tribunals should be able to recognise such a distinction and separate out a feature (or features) of the conduct relied on by the decision-maker that is genuinely separate from the making of the protected disclosure itself”.
Although the "separability principle" was not a rule of law, the court was clear that tribunals have to be able to consider whether the reasons for the treatment were separate from the protected disclosure or so closely connected that they could not make a distinction. Otherwise, whistle-blowers would effectively have immunity for any behaviour they manifested, no matter how bad.
The court concluded therefore that: “The fact that the tribunal found that [Ms Kong] had not in fact behaved in a way which justified her dismissal [did] not mean that it was required to find that the dismissal decision was taken on the proscribed ground.”
Comment
Where a worker is involved in a whistleblowing dispute, it is common for there to be emotional pressures surrounding the events. Workplace relationships can also become strained. However, this case shows it is important for the worker to ensure their own conduct, and the manner in which they go about raising their complaint, does not place them at risk of dismissal. Following this case, employers defending such claims are likely to try and separate the worker’s conduct from the disclosure itself.