Whistleblowing: Was the reason for an employee’s dismissal attributable to their protected disclosure to another?

The Employment Appeal Tribunal (“EAT”) in the case of Ms L Kong v Gulf International Bank (UK) Ltd has considered whether the Claimant was unfairly dismissed as a result of making a protected disclosure to a different employee who was not involved in the final decision to dismiss, but raised the issue with those who subsequently made the decision to dismiss the employee.

Background

The Claimant was employed by Gulf International Bank (UK) Ltd (“the Respondent”) as Head of Financial Audit. She raised concerns to the Head of Legal about a draft audit report that had been prepared and questioning her legal awareness. There was no doubt that these concerns raised amounted to protected disclosures. The Head of Legal, who was responsible for this agreement, disagreed with the Claimant and felt the Claimant had “impugned her integrity” in making these comments, and complained to the Head of HR. Following an internal decision between the Head of HR, the CEO and the Group Chief Auditor they came to a decision to summarily dismiss the Claimant because of her manner with colleagues, including the incident with the Head of Legal.

The Claimant subsequently brought a whistleblowing claim and an unfair dismissal claim to the Employment Tribunal (“ET”). The Claimant complained of suffering detrimental treatment and unfair dismissal as a consequence of raising a protected disclosure.

The Law

Section 47B of the Employment Rights Act 1996 (“ERA 1996”) provides for the right for a worker not to be subjected to any detriment by their employer by virtue of the employee making a protected disclosure.

Section 103A of the ERA 1996 provides protection against dismissal “if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.”

Employees will be regarded as automatically unfairly dismissed if the reason or principal reason for the dismissal is that they have made a protected disclosure and there is no requirement for the protected disclosure to be made to the employer carrying out the dismissal.

Decision

The ET dismissed the Claimant’s claim that she was unfairly dismissed by reason of her protected disclosure (but did conclude that the Claimant was ordinarily unfairly dismissed). The ET found that she was dismissed because of her conduct and manner in which she raised the protected disclosures, rather than her views or the fact she had raised concerns which formed the protected disclosures. Further, it was not appropriate to attribute any motivation of the Head of Legal to seek a dismissal (which was not found in any event) to those who made the decision to dismiss.

The Claimant appealed contending that the principal reason for her dismissal was the protected disclosures made.

The EAT in dismissing the Claimant’s appeal held that the Tribunal was correct to conclude that the decision to dismiss was separate and distinct from the Claimant’s protected disclosures made to the Head of Legal. The Head of Legal did not participate in the decision to dismiss nor was it her intention for the Claimant to be dismissed, but rather to seek advice from HR. The EAT agreed with the Tribunal’s findings that the decision to dismiss by the managers involved was not motivated by the protected disclosures made, but rather the Claimant’s conduct towards the Head of Legal following the disclosures, and similar incidents with other employees. The Judge pointed to a consistent theme in the Respondent’s evidence, which highlighted that the principal reason that influenced and drove the manager’s decision to dismiss the Claimant was because of her conduct, with one of the manager’s holding the view “that her conduct towards others warranted her dismissal.”

Comment

This case highlights and reiterates the general principle in whistleblowing dismissal cases, that the reason for dismissal is assessed based on the facts known to, or beliefs held by, the person or persons who took the decision to dismiss. Therefore, the motivation to dismiss has to be because of the protected disclosures made. The narrow exception whereby the facts or beliefs of another manager may be treated as the reason for dismissal instead (established in the case of Royal Mail v Jhuti) will only apply in rare and limited circumstances. Where an employee potentially blows the whistle the employer’s response should be dealt with carefully, and reasons for any subsequent action towards that employee should not be motivated by their whistleblowing.

Case reference: Ms L Kong v Gulf International Bank (UK) Ltd UKEAT/2020/000357/JOJ

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