Whistleblowing Protection - The Relevance of Conduct When Making a Protected Disclosure
The Court of Appeal held an employee was not automatically unfairly dismissed after making protected disclosures. The employee was dismissed for conduct reasons that were separate to the disclosures themselves.
Dismissed for Conduct or Protected Disclosures?
In the case of Kong v Gulf International Bank, Ms Kong was employed by Gulf International Bank. She raised concerns with the bank's Head of Legal about an agreement relating to one of the bank's financial products. Her concerns constituted a protected disclosure. The bank's Head of Legal was offended by the way Ms Kong had raised her concerns, and complained she had questioned her integrity. The Head of Legal limited her interactions with Ms Kong and Ms Kong was dismissed. The bank said Ms Kong was dismissed due to her manner in raising her concerns, and the way she questioned the Head of Legal's competence and professional awareness.
Ms Kong brought various Tribunal claims including a claim for automatic unfair dismissal for having raised protected disclosures. Both the Tribunal and the EAT found Ms Kong had been dismissed for her conduct and not because she had made protected disclosures. Ms Kong appealed to the Court of Appeal.
The Court of Appeal Dismissed the Appeal
The Court of Appeal upheld the EAT's decision, dismissing the appeal. It distinguished between the protected disclosure, and Ms Kong's conduct in making the disclosure. Although it did not consider that the Claimant had behaved unreasonably when making the disclosure, it accepted that the bank genuinely believed she had acted unreasonably. The Court of Appeal rejected the argument that an employee's conduct in making a protected disclosure should only be considered separable from the disclosure itself, where the conduct was wholly unreasonable or serious misconduct.
We understand Ms Kong is considering appealing to the Supreme Court against the Court of Appeal's decision.
High Risk Dismissal
The Court of Appeal stressed that a decision to dismiss an employee following a protected disclosure is likely to be subject to high scrutiny, even though an employee's conduct can be considered separately to the protected disclosure they have made. In reality, a dismissal in these circumstances is likely to be a high risk dismissal and care should be taken to ensure a fair procedure is followed.
This case also acts as a reminder to employers to check their whistleblowing policies in order to ensure they set out a clear process for employees to follow when raising concerns, so that situations like the one in which Ms Kong found herself in could be avoided.