The CA in Kong v Gulf International Bank (UK) Ltd confirmed that when deciding on the principal reason for dismissal in a whistleblowing claim, the conduct of an employee in making a protected disclosure can be separated and distinguished from the disclosure itself. This is the case even where the conduct is closely related to the whistleblowing and is not (objectively) serious or unreasonable. This means that if an employer can show that its reason for dismissing the employee was not the protected disclosure itself, but the manner in which it was made (for example, the employee’s disrespectful conduct), then the dismissal will not be automatically unfair under the whistleblowing legislation.
For the dismissal of an employee with over two years’ service to be legally recognised as “fair”, the reason (or principal reason) for the dismissal must be one of the potentially fair reasons set out under s98 of the Employment Rights Act 1996 (ERA 1996). One such reason is the employee’s conduct.
To establish what the reason for a dismissal was, the Employment Tribunal (ET) will look at the facts known (or beliefs held) by the employer which caused them to dismiss the employee.
However if the sole or principal reason for the dismissal is that the employee made a ‘protected disclosure’ (i.e. the employee is a whistleblower), the dismissal will be automatically unfair. In these circumstances there is no minimum service requirement for the employee to bring a claim for unfair dismissal in the ET.
The employee in this case, Ms Kong, was employed by Gulf International Bank (UK) Ltd as head of financial audit. Ms Kong raised concerns about a legal agreement relating to a new investment product in a draft audit report. She emailed the report to the head of legal, Ms Harding (who was responsible for the agreement) and others. It was accepted that, in raising these concerns, Ms Kong had made protected disclosures.
Ms Harding disagreed with Ms Kong’s concerns and with the way in which she had raised them. During a heated exchange, Ms Harding challenged Ms Kong about her draft audit report and Ms Kong questioned Ms Harding's awareness about the legal issues involved. Ms Harding thought that Ms Kong had questioned her professional integrity and raised the matter with the Head of HR and others. She said that she was very upset and that she could not see how she could continue working with Ms Kong.
The Head of HR, the CEO and the Group Chief Auditor reviewed Ms Kong’s manner and behaviour in respect of this and previous issues. They came to the collective view that Ms Kong should be dismissed. It was made clear to Ms Kong that the dismissal was not about her professional capability but was because of the breakdown in working relationships and her ‘entirely unacceptable’ treatment of both Ms Harding and other staff. The letter of dismissal also explained that key stakeholders no longer wished to work with Ms Kong; that her actions fell well short of the expected standards of professional behaviour and that they no longer had trust and confidence in her.
Ms Kong brought claims in the ET, including both ordinary unfair dismissal and automatic unfair dismissal as a result of her whistleblowing.
The ET upheld Ms Kong’s ordinary unfair dismissal claim (on the basis that no fair procedure was followed).
However, it dismissed her claim that she was automatically unfairly dismissed as a result of blowing the whistle. It held that in the mind of the dismissing managers, the principal reason for Ms Kong’s dismissal was her conduct towards Ms Harding when she made the disclosure, which was reflective of her behaviour with other staff and a wider problem with Ms Kong’s interpersonal skills, rather than the fact that she had made protected disclosures. This finding was made was despite the fact that the ET actually considered that Ms Kong’s behaviour had been broadly reasonable.
Ms Kong appealed and said:
- Ms Harding’s motivation for her complaint against Ms Kong, which was based on Ms Kong’s protected disclosure, should be attributed to the dismissing managers’ reasons for their decision; and
- it was not open to the ET to separate and distinguish between her conduct in blowing the whistle and the disclosures themselves.
The EAT dismissed Ms Kong’s appeal. It found that:
- the dismissing managers’ reason for dismissal was not influenced by the fact that Ms Harding made a complaint about Ms Kong (i.e. that Ms Kong had made a protected disclosure). Instead, the EAT found that the reason for dismissal was Ms Kong’s conduct towards Ms Harding and other staff. The EAT highlighted that, generally speaking, an employer’s reason for dismissal is only that belonging to the dismissing manager(s). The ET should only attribute the motivations of another person when that person has direct management responsibility over the dismissed employee (or can otherwise manipulate the facts). This was not the case here.
- it was open to the ET to separate the reason for dismissal from the protected disclosures and it had done so correctly in this case. The ET was clear in its decision that what motivated the dismissing managers was not the content or fact of the disclosures but Ms Kong’s conduct towards Ms Harding and others.
Ms Kong appealed against the EAT’s finding under (2) above.
Ms Kong argued that an employee’s conduct in making a disclosure should only be properly considered separable from the disclosure itself where that conduct constitutes wholly unreasonable behaviour or serious misconduct.
The CA dismissed Ms Kong’s appeal. It agreed that the ET was entitled to find that the principal reason for Ms Kong’s dismissal (her conduct) was separable from her making the protected disclosure.
The CA said that there is no particular threshold in law that conduct needs to reach before it can be viewed as separable from the disclosure. It is a matter of fact whether the reasons are separable or so closely connected that a distinction cannot sensibly be drawn.
That said, there are likely to be relatively few cases where employers would be able to rely on the upset caused by whistleblowing as separate and distinct from the protected disclosure itself. In particular, if the whistleblower’s conduct is blameless (or does not go beyond ordinary unreasonableness) it is less likely (but not impossible) that it will be the real reason for the dismissal. In these cases ETs will likely take particular care to scrutinise the evidence and arguments about the employer’s principal reason for dismissal very closely.
In this case, the ET had taken such care to scrutinise the facts. Even though the ET considered that Ms Kong’s behaviour was broadly reasonable, it was enough that the dismissing managers had found it unacceptable for it to be correctly separated from Ms Kong making the protected disclosure.
This is a welcome decision for employers, as it confirms that an employee is not protected against dismissal for misconduct simply because they have made a protected disclosure. This is the case even where the conduct is closely related to the whistleblowing and is not objectively serious or unreasonable.
However, employers should take care when dismissing on this basis. The reason for dismissal will need to be more than the usual upset or criticism caused by whistleblowing – it is important to remember that in this case there was a wider issue relating to Ms Kong’s behaviour and treatment of her colleagues. If the whistleblower’s behaviour could be perceived by others (including the ET) as reasonable, the employer will need to give very clear evidence to show that the employee’s conduct can be separated from the protected disclosure itself and that this conduct was the principal and genuine reason for dismissal.
This is another good reason to record and keep detailed and clear notes on the reason for a dismissal and the decision-making process that led to it. Employers should also make sure that they follow a fair procedure before deciding to dismiss as, even if the protected disclosure is not the reason for dismissal, it may still be ordinarily unfair if no such procedure is carried out.
Employers should also be mindful that this may not be the final word on this issue - Ms Kong is reportedly considering an appeal to the Supreme Court. We will let you know if she does and what the final outcome is.