In the case of Kong v Gulf International Bank (UK) Ltd (2022), the Court of Appeal have held that the manner in which a whistleblower blows the whistle can be separated out from the act of blowing the whistle itself, and that the whistleblower can be fairly dismissed in terms of how they blew the whsitle.
Whistleblowers Conduct Can Be Distinguished From The Protected Disclosure Itself
Where the act of whistleblowing is the main reason for dismissal, then that would render the dismissal of the whistleblower automatically unfair. However, employers will have a defence if they can show that there was some other reason for dismissal of the whistleblower, and that that other reason was a fair reason. This case was a test case to determine whether the behaviour of the whistleblower during the act of blowing the whistle could be separated out from the whistleblowing itself, and used by the Respondent as a fair reason to dismiss the whistleblower.
The background to this case is that the Claimant was employed by the Respondent as Head of Internal Audit. The Claimant concluded that in her view a financial compliance template, originally designed for bank-to-bank lending, was not appropriate for the Bank's non-bank-to-bank lending activities in terms of how the Respondent was using it. The Claimant then made a protected disclosure to the Respondent's Head of Legal about this. However, the Head of Legal then lodged a formal complaint against the Claimant with the Respondent, alleging that the Claimant had challenged their competence and professional awareness. This led to the Claimant's dismissal.
The Claimant then commenced proceedings in the Employment Tribunal, which included a claim for automatic unfair dismissal with respect to having made a protected disclosure. However, this particular claim was rejected by the Employment Tribunal (ET). The ET held that the decision to dismiss the Claimant was not related to the protected disclosure, but was instead due to what the Respondent perceived to be an unacceptable personal attack upon the Head of Legal, which included in the Respondent's view aspersions pertaining to the Head's competence / professional awareness, an incident which amplified wider concerns that the Respondent had as regards the Claimant's interpersonal skills.
The ET stated: "We accordingly find that the Respondent’s principal reason for dismissal in this case was that the Claimant had questioned [the Head of Legal's] professional awareness/integrity both orally in the meeting on 22 October 2018 and in the subsequent email of 23 October 2018. That, in our judgment, was a matter of conduct on the part of the Claimant and we accordingly find that the principal reason for the Claimant’s dismissal was her conduct, which is a potentially fair reason under section 98(2)."
The ET held that the decision to dismiss was also related to "the substantial fair reason of a breakdown in the working relationship."
The Claimant did however succeed with a separate claim for general unfair dismissal
Appeals
The Claimant appealed to the Employment Appeal Tribunal (EAT) on the failure of her automatic unfair dismissal / protected disclosure claim, who dismissed the appeal. Hence, the appeal to the Court of Appeal on the issue of the distinction drawn by the ET between the Claimant's conduct from the protected disclosure as the reason for dismissal.
Court of Appeal
The Court of Appeal also dismissed the appeal. The Court of Appeal held that the manner in which the whistle is blown can be separated out from the act of blowing the whistle, and that a whistleblower can then be fairly dismissed in terms of how they blew the whsitle in terms of their conduct.
The Court held that "there is no inconsistency in the tribunal’s conclusions about separability as affecting the detriment claim on the one hand and the unfair dismissal claim on the other. This is because the decision-makers in the two claims were different....[Moreover], separability is not a rule of law or some sort of freestanding legal concept."
The Court added that "the tribunal concluded that what motivated the trio of dismissal decisionmakers was not the claimant’s substantive views....., or that she raised those concerns. It was rather, her lack of emotional intelligence and insensitivity in the way she conveyed to [the Head of Legal] criticisms of [the Head of Legal] personally, both in the meeting on 22 October and in the email of 23 October."
