The Court of Appeal in the recent decision of Kong v Gulf International Bank (UK) Ltd has upheld a decision that a whistleblower who was dismissed after she made a “protected disclosure” was not automatically unfairly dismissed. This was on the basis that the reason for her dismissal, being her conduct in the way the disclosure was made, was separable and distinct from the disclosure itself.
Whistleblowing protection
As a reminder, workers in the UK are protected from being subjected to detriment by their employer on the ground that they have made a “protected disclosure”. What constitutes a “protected disclosure” can then broadly be defined as any disclosure of information which in the reasonable belief of the person making it, is made in the public interest and tends to show one or more of types of wrongdoing prescribed in the Employment Rights Act (“ERA”). These types of wrongdoing then include, for example, criminal offences, breaches of legal obligations and danger to the health and safety of any individual. To be “protected”, the disclosure must also be made by the worker to a person prescribed in the ERA, and this includes their employer.
Most commonly, we see such disclosures being included in grievances raised by a worker with their employer. Where this does occur, employers need to be mindful not to subject the worker to any detriment because of the disclosure.
What is actually considered a detriment is then quite broad and can cover a range of different things, including dismissal. Notably, where an individual is dismissed, and the sole or principal reason for the dismissal is because they have made a protected disclosure, the dismissal will also likely be automatically unfair, and this was one of the complaints presented against Gulf International Bank (‘GIB’) by Ms Kong.
Kong v Gulf International Bank (UK) Ltd
Whilst employed by GIB, Ms Kong made a protected disclosure to GIB’s Head of Legal, Ms Harding, relating to a compliance document GIB was using. Ms Harding disagreed with Ms Kong and was upset by her comments questioning Ms Harding’s ability and professionalism. This resulted in Ms Harding raising complaints about Ms Kong to GIB and indicating that she could no longer work with Ms Kong.
As a result, GIB proceeded to dismiss Ms Kong. She proceeded to bring claims against GIB for ordinary unfair dismissal, automatic unfair dismissal, wrongful dismissal and whistleblowing detriment.
The Employment Tribunal, in the first instance, found that the principal reason for Ms Kong’s dismissal was not that she had raised a protected disclosure, but that GIB based its decision to dismiss on Ms Kong’s conduct in the manner she raised her complaints with Ms Harding and in allegedly questioning her ability and professionalism. As such, and as the sole or principal reason for Ms Kong’s dismissal was not that she had made a protected disclosure, her claim for automatic unfair dismissal failed.
Ms Kong appealed the decision, and both the EAT and Court of Appeal upheld the Tribunal’s view. In reaching this conclusion, the Court of Appeal noted that whether or not the reason for a treatment or behaviour is because of a protected disclosure is a matter of fact and, once the factual reasons for a particular treatment are identified by a Tribunal, it must evaluate whether or not those reasons are distinct from the protected disclosure or so closely connected that a distinction cannot be sensibly drawn. In Ms Kong’s case, the Court of Appeal held that the Tribunal had taken the correct approach to conclude that the reason for her dismissal was separate and distinct from the protected disclosure itself.
Notably, Ms Kong’s claim for ordinary unfair dismissal did succeed on the basis that no fair procedure was followed, and the Tribunal stated that her claim for whistleblowing detriment would have succeeded had it not been out of time. The whistleblowing detriment claim was based upon Ms Harding’s treatment of Ms Kong in raising a complaint after she had made a protected disclosure and this, by itself, was held to be materially influenced by the protected disclosure. Importantly, the decision makers at GIB who then decided to dismiss Ms Kong did not include Ms Harding and, as such, the motivation behind the dismissal was held to be separate (being Ms Kong’s alleged conduct).
What can we learn?
Claims for whistleblowing detriment can be complicated and, as demonstrated in Ms Kong’s case, a range of different claims can easily arise out of a single chain of events. Where a worker has made a protected disclosure, employers need to be mindful as to how that individual is treated and how the disclosure is discussed internally to ensure that the worker is not placed at any detriment. This is demonstrated by the above case as, although the reason for the dismissal was not the protected disclosure, Ms Harding’s treatment of Ms Kong was motivated by it and, had the detriment complaint been brought in time, GIB would likely have been liable to compensate.
Having clear and comprehensive policies and procedures in place to set out how a protected disclosure can be made, and to who, can help to manage the process, control internal communications and ensure consistency within an organisation.
If you would like to discuss any issues raised in this update, or require any assistance with a potential whistleblowing situation, please get in touch on 01276 854 663 or employment@herrington-carmichael.com.
This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.
