Whistleblowing: attribution of motive
Kong v Gulf International Bank Ltd
When determining the reason for dismissal, only in very rare instances will the motives of anyone but the decision maker be attributed to the employer.
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 appeal was dismissed.
The EAT considered the seminal case in this area: Royal Mail v Jhuti concerning when the motivation of a non-decision maker (in this case Ms Harding) can be attributed to the employer when ascertaining the reason for dismissal. Three features must be present for this to apply said the EAT:
- the non-decision maker must have sought to procure the dismissal for a proscribed reason
- in making the decision to dismiss, the decision maker was peculiarly dependent on that person as a source for the underlying facts and information concerning the case, and
- that person’s role or position must be of such a kind to make it appropriate for their motivation to be attributed to the employer
None of these features were present. The decision makers had not been sufficiently manipulated by or reliant upon Ms Harding’s distress, caused by the protected disclosures. Her motivation therefore could not be attributed to the decision makers and therefore the employer.
Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2021/2020-000357.html
This decision confirms that the Jhuti case creates a narrow exception to the standard rule that only the decision taker’s motivation is considered.
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 employer 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.