In Kong v. Gulf International Bank (UK) Ltd,the Court of Appeal (CA) has upheld an Employment Appeal Tribunal (EAT) decision that it is possible to separate conduct related to a protected disclosure from the making of the protected disclosure in automatic unfair dismissal claims. This case serves as a reminder that a whistleblower’s dismissal is not automatically unfair when the decision-makers’ view of the worker’s conduct when making the protected disclosure can be separated from the actual disclosure itself.

Background

Ms Kong worked as Head of Financial Audit for Gulf International Bank (GIB) and made several protected disclosures relating to an investment product that GIB was offering. The protected disclosures were made to GIB’s Head of Legal, Ms Harding, who challenged the basis for those disclosures. Following an exchange of emails between Ms Kong and Ms Harding, Ms Harding complained that Ms Kong had acted inappropriately towards her by questioning her professional abilities and stated that she could no longer work with Ms Kong.

Ms Harding discussed the incident with the Head of HR and the CEO of GIB and it was decided by the Group Chief Auditor that Ms Kong should be dismissed, due to her behaviour and manner towards her colleagues. In response, Ms Kong brought various claims, including automatic unfair dismissal based on her protected disclosures.

Decision of the Employment Tribunal

The Employment Tribunal (ET) found against Ms Kong, finding that the dismissal was not automatically unfair. The reason for Ms Kong’s dismissal was due to her conduct, not because of her protected disclosures, and so her claim was unsuccessful. Ms Kong appealed this decision.

Decision of the Employment Appeal Tribunal

The appeal was dismissed by the EAT. In its decision, the EAT considered the test in Royal Mail v. Jhuti surrounding the motivation of the “non-decision-maker” (here, Ms Harding) and whether her motives could be attributed to the employer when ascertaining the reason for the dismissal. For this to happen, the EAT decided the three following features must be present:

  • the non-decision-maker must have sought to procure the dismissal for a prescribed reason;
  • in making the decision to dismiss, the decision-makers were peculiarly dependent on the non-decision-maker as a source for the underlying facts and information concerning the case; and
  • the non-decision-maker’s role or position must be of such a kind to make it appropriate for their motivation to be attributed to the employer.

As none of these features were present, the EAT found that the decision-makers had not been sufficiently influenced by Ms Harding’s distress, caused by the protected disclosures, and so her motivation could not be attributed to the decision-makers and therefore GIB. Ms Kong lodged a further appeal with the CA.

Decision of the Court of Appeal

The CA unanimously dismissed the appeal. Upon analysing precedent, the CA concluded that it was legitimate for a tribunal to find that, although the reason for dismissal was connected to the disclosure, it was not in fact because of the disclosure itself, but rather related to Ms Kong’s subsequent conduct. It was therefore found that the ET and EAT had adopted the correct test and the former had been entitled to conclude that the reason for dismissal was separate from the protected disclosure. Ms Kong is reportedly considering appealing this decision to the Supreme Court.

Comment

This case highlights that the circumstances in which Royal Mail v. Jhuti applies are limitedand the standard rule that only the decision-maker’s actual reasons that are relevant is the norm.

Of potentially wider application is the finding that conduct closely related to the making of a protected disclosure can, in certain circumstances, be a reason for dismissal that is distinct from the disclosure itself and so not automatically unfair. However, the CA voiced a note of caution and emphasised the need for scrutiny of employer’s arguments when there may be a link. It also serves as a useful reminder to employers to always be careful when deciding to dismiss and to ensure both that reasons for dismissal are adequately documented and that the person deciding whether to dismiss has not been previously involved in the situation.