Case Law Update: Kong v Gulf International Bank

The Court of Appeal has upheld a decision where an employer successfully defended a claim for automatic unfair dismissal in relation to whistleblowing. They did this by showing that the dismissal was genuinely due to the conduct of the individual, and not the protected disclosure.

And of course, if you don’t have time to go through the entire blog, you can always see our too long; didn’t read section here.

Employment law related to this case

Employment rights act 1996 (ERA)

Section47B Protected disclosures.

1 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 round that the worker has made a protected disclosure.

(1A) A worker (“W”) has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done – (a) by another worker of W’s employer in the course of that other worker’s employment, or (b) by any agent of W’s employer with the employer’s authority, on the ground that W has made a protected disclosure.

(1B) Where a worker is subjected to detriment by anything done as mentioned in subsection (1A), that thing is treated as also done by the worker’s employer.

(1E) … (2) This section does not apply where –

(a) the worker is an employee, and

(b) the detriment in question amounts to dismissal (within the meaning of Part X).

(3) For the purposes of this section, and of sections 48 and 49 so far as relating to this section, “worker”, worker’s contract”, “employment” and “employer” have the extended meaning given by section 43K

Section 47B(2) makes clear, where the detriment of which an employee complains takes the form of dismissal, the protection is not accorded by section 47B but by the unfair dismissal provisions in Part X of the ERA.

Section 103A Protected disclosure:

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 the dismissal is that the employee made a protected disclosure.

It is for the employer to show the reason (or if more than one, the principal reason) for the dismissal: see section 98(1) ERA. For a dismissal to be automatically unfair under section 103A, the protected disclosure must be the reason or the principal reason for the dismissal.

Kong v Gulf International Bank

Facts of the case

The claimant was Head of Financial Audit for the respondent. She raised a number of protected disclosures, including one around the drafting of a legal template. The Head of Legal, Ms Harding, was responsible for this. Ms Harding disagreed with the concerns. In discussing the matter, the situation got quite heated. During the exchange, the claimant made disparaging comments towards Ms Harding. As a result, she believed that the claimant was impugning her professional integrity.

Ms Harding complained about the claimants’ comments. This led to the dismissal of the claimant. The reasons cited were:

• The unacceptable personal attack on Ms Harding and her abilities
• The claimant’s lack of interpersonal skills

This led to a claim for automatic unfair dismissal. The grounds for this claim were that the true reason for the dismissal was the protected disclosure. Also, there was a detriment relating to a protected disclosure. The evidence for this was how Ms Harding had spoken to her during the disagreement.

 

What the ET found

At first instance, it was held that the claimant had been subject to detriments. However, her claim was found to be out of time.

The unfair dismissal claim was also rejected. This was because the ET found that the true reason for the dismissal was in fact the claimant’s conduct in questioning her colleagues’ professional awareness and competence.

What the EAT found

On appeal, the EAT again dismissed the claims. The EAT held that the protected disclosure and the criticisms of her colleague could be distinguished. It was ruled that the conduct towards Ms Harding was the principal reason underlying the decision to dismiss.

What the Court of Appeal found

The case was once again dismissed by the CoA. They couldn’t rule out that the decision to dismiss was impacted by the disclosure. However, this didn’t automatically mean that the dismissal was due to the disclosure.

Again, it was pointed out that there was a distinction to be drawn between the disclosure itself, and the offensive and / or abusive manner in which it was made. In these situations, it is for the court to decide what the real reason for the dismissal was – the protected disclosure, or the conduct.

There was some concern that this decision could be seen as watering down legal protections for whistleblowers. So, Lord Justice Underhill addressed this in the judgement:

“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.”

 

Note for employers

The reaction to the CoA decision has been strong. Protect, a charity acting for whistleblowers, were quick to voice their disappointment over it. They noted that it effectively undermines the protection the law offers to whistleblowers. On the other hand, this outcome strikes a sensible balance between employee protection and appropriate disciplinary sanctions for poor conduct.

This doesn’t mean disciplinary action won’t be under close scrutiny when a protected disclosure is involved—far from it.

For the balance to be struck, a detailed examination will be needed. The outcome of processes will need to be closely scrutinised. Employers should ensure their evidence and reasoning behind decision making is carefully recorded. Keep records for future reference should any subsequent claims be raised.

This case does offer reassurance that combining unacceptable behaviour with a protected disclosure does not give the employee immunity from the consequences of that behaviour. Clearly, raising a protected disclosure does not have the effect of excusing poor behaviour. You can be reassured that you are still able to tackle this through the usual channels.

 

 

TL;DR

An auditor working at a bank raised protected disclosures to the head of legal. The exchange became heated, and the auditor made several disparaging comments to the head of legal. The auditor was then dismissed.

The auditor raised claims of unfair dismissal. However, the ET found that the reason for the dismissal was not because of the protected disclosures. Instead, it was due to the auditor’s conduct. Therefore, her claim was rejected.

The claim was taken to the EAT and was dismissed. The claim was then taken to the Court of Appeal. They ruled that while the disclosures may have been a factor in the dismissal, the main reason was conduct. To ensure this didn’t negatively impact protections for whistleblowers, the Lord Justice addressed this in his judgement.

Expert support

Whistleblowing situations can be tricky to manage, and you should always approach them carefully. For further support managing agency workers speak to a Croner expert on 01455 858 132.