Ms Kong was employed by Gulf International Bank (GIB) as the Head of Audit. She raised several concerns with the bank's Head of Legal, Ms Harding, regarding an agreement relating to one of GIB's financial products. It was not disputed that this amounted to a protected disclosure.
Ms Harding was affronted by Ms Kong's concerns and confronted her. Ms Harding also complained to the bank's Head of HR and CEO that Ms Kong had questioned her 'integrity', and made the decision to limit her interactions with Ms Kong. The Head of HR and CEO informed the Group Chief Auditor of the incident and collectively the three managers decided that Ms Kong should be dismissed. They stated that the reason for dismissal was due to Ms Kong's manner, meaning other employees did not want to work with her.
Ms Kong brought various claims including an automatic unfair dismissal for having raised protected disclosures at the Employment Tribunal (ET). The ET found that Ms Kong was dismissed because of her conduct, not her protected disclosures. Ms Kong appealed to the Employment Appeal Tribunal (EAT).
The EAT considered the decision in Royal Mail Group Ltd v Jhuti. In Jhuti it was held that if a person in the hierarchy of responsibility above the employee determines he/she should be dismissed for a reason, but hides the real reason for the dismissal behind an 'invented' reason which the decision maker adopts, the hidden reason will be deemed the 'real reason' for dismissal. For this principle to succeed, there must be an element of manipulation and the decision maker must be dependent on the person doing the manipulation, to provide them with the background to the case.
The tribunal found that the principle in Jhuti will rarely apply. In this case, the decision makers had not been sufficiently manipulated by or reliant upon Ms Harding's distress, caused by the protected disclosures. Her motivation therefore could not be attributed to the decision makers and therefore the employers.
This is an 'employer friendly' decision, which confirms that the Jhuti principle will rarely apply. However, when it does it can be highly damaging for employers. Dismissing employees who have made protected disclosures will generally entail a higher degree of risk and will not be regarded as fair if the reason for dismissal is found to be the making of those disclosures.
Employers should always carefully document the reason for dismissal and (where appropriate) the decision to dismiss should be taken by someone who has not previously been involved in the situation that led to the dismissal. Employers should also ensure that they take the time to investigate the facts thoroughly and give the employee the chance to have their say before a decision to dismiss is made.