A whistleblowing case has shown that employers can dismiss an employee over disruptive behaviour even when the employee has made a protected disclosure, raising concerns among campaigners that the law ‘will not stand by whistleblowers’.
The charity Protect said the Court of Appeal’s judgment in Kong v Gulf International Bank (UK) Limited would make it easier to victimise and dismiss whistleblowers.
The claimant, Ms Kong, was employed by Gulf International Bank as a senior business auditor. She raised a number of concerns, which were held to be protected disclosures under UK whistleblowing legislation, including one to the firm’s head of legal, Ms Harding, regarding a legal document being unsuitable.
Ms Harding was upset by the disclosure and considered that Kong had questioned her integrity. This led to a disagreement between the two, during which Harding walked out of Kong’s office and slammed the door, and subsequently made comments to others.
Kong was dismissed after this. She asserted that she was a whistleblower, however, and brought claims for detriment because of how Harding had treated her during their disagreement. She also brought a claim for automatic unfair dismissal.
This judgment is very disappointing. We fear this undermines protections for whistleblowers” – Protect CEO Liz Gardiner
The employment tribunal found that Kong had been subjected to detriments, although her claims were out of time. Her automatic unfair dismissal claim was rejected as it was found that the reason for dismissal was not her protected disclosure, but was her conduct in questioning Ms Harding’s professional awareness and competence.
Ms Kong appealed to the Employment Appeals Tribunal, where her appeal was dismissed in July 2021. The EAT agreed that her disclosure and the criticisms of Ms Harding were properly distinguished; Ms Kong’s conduct of questioning Ms Harding’s professional awareness/competence was the principal reason for dismissal, and not the protected disclosure, it found.
Far from undermining the protection of whistleblowers, this decision strikes a sensible balance” – Fieldfisher employment partner Nicholas Thorpe
The Court of Appeal last week (8 July) dismissed the appeal and has agreed that an employer can take action against a worker who makes a protected disclosure in an unreasonable or unacceptable manner, or who acts in an unacceptable way in relation to a protected disclosure.
The judgment stated that although the reason for dismissal may be related to a disclosure, it did not automatically mean that it was in fact because of the disclosure itself, and there may be a distinction between the disclosure and the offensive or abusive manner in which it was made. If the real reason for a dismissal is conduct, and that conduct is distinct and separate from the making of a protected disclosure, the disclosure will be the context for the conduct, and not the reason itself.
Lord Justice Underhill wrote in the judgment: “I do not see our decision as turning on any question of principle or as opening any general breach in whistleblower protection. The employment tribunal reached the conclusion that the principal reason why the claimant was dismissed was what the decision-makers perceived as the seriously inappropriate way in which she had challenged Ms Harding’s competence/integrity (which reinforced concerns that that they already had about a lack of emotional intelligence in dealing with colleagues) and was not the fact that she had made protected disclosures.”
Christina Hutchinson, senior associate at Fieldfisher, said: “Far from undermining the protection of whistleblowers, this decision strikes a sensible balance. It does not give employees a free pass to excuse any behaviours just because they have blown the whistle, nor does it allow employers to make an easy distinction to be able to rely on conduct as a reason to dismiss where a protected disclosure has been made. Employers must still provide a detailed explanation as to the real reason for the dismissal, and must demonstrate that this is not because of a protected disclosure. It will not be sufficient if the conduct of the individual is reasonable or acceptable, and the onus is on the employer to show what motivated the decision-maker when dismissing the individual.”
Nicholas Thorpe, partner at Fieldfisher added: “Had the decision gone the other way, then the alternative would be for employers to have to tolerate any behaviour of an individual who has made a protected disclosure, regardless of how unacceptable such behaviour may be. Whilst some may see this decision as worrying, there must be a balance and employees cannot be afforded with immunity for unacceptable behaviour just because they have blown the whistle.”
Criticism of the judgment
According to the Court of Appeal there were likely to be few cases where employers would be able to rely on upset or inherent criticism caused by whistleblowing as a separate and distinct reason. Protect, however, believes that this judgment “will create uncertainty for whistleblowers, and make it easier to victimise and dismiss whistleblowers”. It said the law needed to change, to strengthen whistleblower protection.
Lord Borrie, supporting the passing of the Public Interest Disclosure Act 1998, explained that “the law will stand by [whistleblowers] provided they raise the matter in a responsible and reasonable way”. Protect argued that the Kong judgment meant that this was not the case.
Protect CEO, Liz Gardiner, said: “This judgment is very disappointing. We fear this undermines protections for whistleblowers. Whistleblowing law (the Public Interest Disclosure Act 1998) was established to encourage responsible raising of concerns about risk and wrongdoing in the public interest and to protect those who speak up from retaliation. Here the tribunal agreed that Ms Kong had been a responsible whistleblower, and agreed her dismissal was not justified, but still, she was denied whistleblowing protection and lost her automatic unfair dismissal case.
“It is often the case that whistleblowing will cause upset, and very frequently leads to a breakdown in relationships. But to allow an employer to dismiss because the relationship broke down and to say this can be entirely separated from the act of whistleblowing could send the wrong signal to unscrupulous employers.
“Employers should heed the court’s ruling that there will be few cases where employers can rely on these distinctions”. Nevertheless, we need greater clarity in the law. The current test for whistleblower dismissal is too high a hurdle for whistleblowers to jump.