EAT Uphold Decision That An Employee Was Not Automatically Unfairly Dismissed for Criticising Colleague In Relation To Protected Disclosure

Kong v Gulf International Bank (UK) Ltd

Background

Ms Kong was employed as Head of Financial Audit of Gulf International Bank (UK) Limited. She had made a number of protected disclosures (or “blown the whistle”) and in particular, raised concerns in a draft audit report that a legal agreement relating to a new investment product the company was offering to investors was unsuitable.

Ms Kong’s audit report resulted in a disagreement between her and the Head of Legal, who had been responsible for the legal agreement. During this disagreement, Ms Kong had questioned the Head of Legal’s awareness of this issue.  A complaint was raised about Ms Kong and a collective decision was taken that she should be dismissed because of her behaviour towards colleagues.

Ms Kong then brought claims of unlawful detriment and automatic unfair dismissal for making protected disclosures.

Employment Tribunal (ET) Proceedings

The ET found that Ms Kong’s unlawful detriment claim would have succeeded if it were not out of time. It found that the behaviour of the Head of Legal towards Ms Kong was materially influenced by her protected disclosures. This behaviour included going to Ms Kong’s office in an agitated state, becoming more agitated during the conversation, walking out and slamming the door and her comments to others that Ms Kong had questioned her professional integrity.

The ET however rejected Ms Kong’s automatic unfair dismissal claim. It found that the principal reason for her dismissal was the manner in which she had questioned her colleague’s professional awareness and that this was a matter of conduct.

Employment Appeal Tribunal (EAT) Proceedings

Ms Kong appealed against the ET’s decision on her unfair dismissal claim.

The EAT considered whether the ET was entitled to treat the dismissal due to Ms Kong’s conduct as distinct from her protected disclosures. Although the subject of the protected disclosure was connected with Ms Kong’s criticism of her colleague, the EAT distinguished them and stated that Ms Kong’s criticisms were not a necessary part of the disclosure.

On the dismissal, the Tribunal found that the motivation of the dismissing managers was their view of Ms Kong’s conduct, not the protected disclosure.

The EAT, therefore, dismissed Ms Kong’s appeal.

Comment

Employers need a careful approach when dealing with employees who have raised concerns about issues that may constitute protected disclosures, as they will benefit from protection against dismissal and detrimental treatment. In practice, it can be very hard to draw a line between any alleged whistleblowing and subsequent disciplinary action against an employee. We strongly advise any employer who is considering disciplining a “whistleblower” to take legal advice before commencing that internal process.