Employers will welcome the decision of the Court of Appeal upholding the EAT’s decision in Kong v Gulf International Bank (summarised here). Subject to any further appeal to the Supreme Court, the ruling confirms that an employer may be able to successfully defend a whistleblowing dismissal claim if it can show that its genuine reason for dismissal was conduct on the part of the whistleblower which was not a necessary feature of the disclosure itself, even if the conduct was not objectively serious or unreasonable. However, the reason will need to be some feature over and above the criticism and upset inherent in a disclosure and tribunals will scrutinise such arguments particularly carefully where the whistleblower has not acted unreasonably. And of course the dismissal may still be ordinarily unfair.

Dismissal is automatically unfair where the principal reason for the dismissal is a protected disclosure. Where employers take exception to the way in which a claimant makes their disclosure, or the surrounding conversations or conduct, the key issue becomes whether this can properly be separated, as the reason for dismissal, from the disclosure itself. If it can, the dismissal will at most be ordinarily unfair and claims subject to a cap on compensation and the two year service requirement; if not, uncapped compensation for automatically unfair dismissal can be awarded to claimants from day one of their employment.

In this case the claimant, who was employed as Head of Financial Audit, disclosed concerns about the drafting of a legal template, which amounted to protected disclosures. The Head of Legal had been responsible for the template and disagreed with those concerns; discussions between her and the claimant resulted in her forming the view that the claimant was impugning her professional integrity. She complained and ultimately the claimant was dismissed because of what the decision-makers considered to be an unacceptable personal attack on the Head of Legal’s abilities, reflective of a wider problem with interpersonal skills. The EAT upheld the tribunal’s decision that the inappropriate manner in which the claimant criticised her colleague, in relation to the subject matter of a protected disclosure, could properly be separated from the protected disclosure itself as the reason for dismissal.

On appeal, the whistleblowing charity, Protect, intervened in the case to argue that an employee’s conduct in making a disclosure should only be properly considered separable from the making of a protected disclosure where that conduct constitutes wholly unreasonable behaviour or serious misconduct. The Court of Appeal disagreed: in its view, there is no need for behaviour objectively to reach a particular threshold of seriousness before it can be viewed as separable from the disclosure. 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 found to be the real reason for an employer’s detrimental treatment of them rather than the disclosure. Tribunals should give particularly close scrutiny to arguments that the real reason is blameless or ordinarily unreasonable behaviour rather than the disclosure.

The Court also noted that upset and criticism will necessarily be inherent in the making of a disclosure and so in few cases will this be distinguishable as a separate reason for dismissal (although it could not rule this out entirely as a possibility); the same applies to the manner of disclosure unless there is a particular feature of it eg accompanying racist abuse. However, on the facts of this case and after proper scrutiny, the tribunal had found that the employer’s genuine reasons were its view that the claimant had shown a lack of emotional intelligence and insensitivity in the way in which she delivered personal criticisms, which were not a necessary feature of making the disclosure, and her refusal to apologise as instructed despite acknowledging some fault. The tribunal had not erred in concluding that these genuine reasons of the employer were separate from the disclosure, notwithstanding that the tribunal itself thought the claimant’s behaviour was broadly reasonable.