Whistleblowing: relevance of conduct when making protected disclosure
Kong v Gulf International Bank Ltd
An employee was not automatically unfairly dismissed after making protected disclosures because her dismissal was for conduct reasons that were separable from the disclosures themselves.
Ms Kong worked as Head of Financial Audit for Gulf International Bank. She raised several protected disclosures relating to an investment product the bank was offering. The Head of Legal, Ms Harding, challenged her view. Following their discussion there was an exchange of emails between the two. Ms Harding felt Ms Kong had impugned her integrity, was very upset, and raised the matter with the Head of HR and others. She stated she could not continue to work with Ms Kong. The Head of HR and the CEO formed a view that Ms Kong should be dismissed because of her behaviour and manner towards colleagues. The Group Chief auditor agreed and dismissed her. Ms Kong brought various claims, including automatic unfair dismissal for having made protected disclosures (whistleblowing). The tribunal found that Ms Kong was dismissed because of her conduct, not her protected disclosures and she appealed.
The EAT upheld the tribunal’s decision. Having considered Royal Mail v Jhuti, it agreed that it was right not to attribute Ms Harding’s motives to the bank and the focus should be on the motives of the dismissal decision makers only. Ms Kong argued that dismissing her for questioning Ms Harding was, in effect, dismissing her because of the whistleblowing disclosures as the two were inseparable. The EAT disagreed. It said that Ms Kong’s concern that the bank was in danger of breaching regulatory requirements by using a legal agreement which was unsuitable for a new financial product was separable from how that state of affairs had come about, who was responsible for it and whether they deserved criticism in that regard. Ms Kong appealed.
Court of Appeal decision
The appeal was dismissed.
At this point the whistleblowing charity, Protect, intervened 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 did not agree. It said that, in principle, there can be a distinction between the whistleblowing disclosure itself and the conduct associated with making the disclosure (the ‘separability’ principle). The role of the tribunal is to identify the reason or reasons that operated on the mind of the decision maker when deciding to dismiss. Tribunals should be able to identify a feature of the conduct relied upon by the decision maker that is genuinely separable from the whistleblowing disclosure. Provided they can do this, the principal reason for the dismissal will be the conduct, not the whistleblowing disclosure.
Importantly, the court stated that there is no objective standard against which behaviour must be assessed to determine whether the separability principle applies in a particular case, nor any question of requiring behaviour to reach a particular threshold of seriousness before that behaviour or conduct can be distinguished as separable from the making of the protected disclosure itself. The ‘separability’ principle is not a rule of law or a basis for deeming an employer’s reason to be anything other than the facts disclose it to be. It is simply a label that identifies what may in a particular case be a necessary step in the process of determining what, as a matter of fact, was the real reason for the treatment of the employee.
Ultimately the question is what motivated the decision maker to dismiss or treat a whistleblower in an adverse way. In an appropriate case, a tribunal may be entitled to conclude that there is a separate feature of a whistleblower’s conduct that is distinct from the disclosure itself and is the principal reason for his or her treatment. Here the tribunal was entitled to conclude that what motivated the decision to dismiss was not Ms King’s protected disclosure, but rather her lack of emotional intelligence and insensitivity in the way she conveyed personal criticisms of a colleague.
The Supreme Court has refused permission to appeal on the basis that the case does not raise an arguable point of law.
Employers should always carefully document the reason for dismissal and (where appropriate) the decision to dismiss should be taken by someone who has not previously been involved in the situation that led to the dismissal. Here the bank was helped by the fact that it could evidence its reasons and that those reasons were found to be unrelated to the protected disclosures. It was also helped by the fact that Ms Harding had taken no part in the decision to dismiss.