21 September 2022
Law at Work - September 2022 – 3 of 6 Insights
A person who is protected from dismissal or detriment, either because they are a whistleblower, or because they have done a protected act under discrimination legislation, may take the position that anything done to them thereafter is a retaliation. However, it is important to remember that the reason why an employee is treated in a certain way may not be entirely attributable to their disclosure or protected act. The case reported below makes clear that employees do not have the equivalent of diplomatic immunity once they have made a qualifying disclosure or done a protected act. They are not exempt from professional standards of behaviour and the manner in which they approach issues may be separable from the subject matter of their complaint.
Ms Kong was employed by Gulf International Bank (UK) Ltd ("Gulf Bank") as Head of Financial Audit. In October 2018, she made several protected disclosures to the Head of Legal, Ms Harding, relating to an investment product that Gulf Bank was offering. Ms Kong raised concerns that a legal document being used was not suitable.
Ms Harding was upset by the disclosure and felt that Ms Kong was questioning her integrity. This led to a disagreement between the two, after which Ms Harding complained to senior leaders that she would be unable to work with Ms Kong in the future.
Following Ms Harding's complaint, the Head of HR, CEO and Group Chief Auditor of Gulf Bank decided to dismiss Ms Kong. The reason provided in the dismissal letter was Ms Kong's "behaviours, manner, and approach had resulted in people not wanting to work with her". Ms Kong appealed unsuccessfully and brought claims in the Employment Tribunal (ET) for, amongst other things, automatic unfair dismissal on the basis of having made a protected disclosure.
The ET, and subsequently the Employment Appeal Tribunal (EAT), agreed that Ms Kong's concerns amounted to a protected disclosure, and that she benefited from whistleblower protection. Further, her dismissal was because of her conduct in questioning the integrity of Ms Harding, not her protected disclosures.
Ms Kong appealed, arguing that it was not open to the ET to distinguish between her conduct in blowing the whistle, and the disclosures themselves.
The CA unanimously dismissed the appeal, stating that it is a matter of fact as to the real reason for the treatment where a protected disclosure is the context for that treatment. It is also a matter of fact whether the reasons are separable, or so closely connected that a distinction cannot sensibly be drawn.
If an employee is dismissed because of having made a protected disclosure ("blowing the whistle"), then that dismissal is automatically unfair, and the employee is entitled to claim compensation in the Employment Tribunal. The CA's judgment in Kong means that an employee's conduct in making a protected disclosure can be separated from having made the disclosure. A whistleblower can be dismissed for their conduct and the dismissal may not be automatically unfair.
We do not know whether the case will be appealed further, but in the meantime it serves as a useful reminder to employers to document reasons for dismissal. The CA was careful to point out that the case turned on its facts; employers must be able to separate the reason for dismissal from the protected disclosure, and be able to explain that reason. On the other hand, employees who have blown the whistle do not have a free pass for unacceptable behaviour.