EAT finds that dismissal was not due to whistleblowing activity

  • Posted

In Kong v Gulf International Bank (UK) Ltd, the Employment Appeal Tribunal considered whether an employee’s protected disclosures (whistleblowing) caused her dismissal.

Ms Kong worked for Gulf International Bank, auditing the Bank’s business activities on the basis of risk, with reference to the Financial Conduct Authority’s regulatory requirements and the Bank’s audit manual.

Ms Kong made numerous protected disclosures. These included a report expressing her concerns about the suitability of a legal agreement, which was sent to the Bank’s Head of Legal, Ms Harding, and others. Ms Harding disagreed with the report and went on to visit Ms Kong’s office to discuss it in person. Ms Kong questioned Ms Harding’s legal awareness, and Ms Harding left Ms Kong’s office upset.

Ms Harding spoke to the Head of HR, Ms Yates, about what had happened. Ms Yates believed that Ms Harding would now be unable to work with Ms Kong. Ms Yates spoke to CEO, Ms Garret-Cox, who, along with Ms Kong’s manager, Mr Mohammed, met with Ms Kong and dismissed her. At the meeting, Ms Kong was told that her behaviour, manner and approach had resulted in people not wanting to work with her. Ms Kong made an unsuccessful appeal against her dismissal.

Ms Kong brought claims in the Employment Tribunal for ordinary unfair dismissal, as well as claims that she had suffered a detriment and been dismissed because of her whistleblowing.

The Employment Tribunal upheld her ordinary unfair dismissal claim and would have accepted her unlawful detriment claim, but it was brought outside of the three-month time limit. The Tribunal rejected her claim of automatic unfair dismissal because of her whistleblowing, since Ms Kong had been dismissed for her conduct when she questioned Ms Harding, not because she made protected disclosures.

Ms Kong appealed to the Employment Appeal Tribunal (“EAT”), which dismissed the appeal:

  • The EAT confirmed that the “general rule that the motivation that can be ascribed to the employer is only that of the decision-maker(s) [who took the decision to dismiss] continues to apply”.
  • There is a limited exception, where a person in the management hierarchy above an employee decides to bring about the employee’s dismissal because they have made protected disclosures, but then invents a different reason to dismiss which the dismissing officer adopts without knowing it’s not genuine. In such circumstances, a very limited exception applies so that the facts or beliefs of the manager can be treated as the reason for dismissal.
  • This exception did not apply here. Whether Ms Harding rightly or wrongly perceived Ms Kong to have questioned her integrity, as opposed to her know-how, “does not remotely take us into the territory of the sort of manipulation or invention that would be a necessary ingredient” for the exception to apply. The decision makers were generally aware of events and were “by no means solely dependent” on what Ms Harding said had happened. In any event, Ms Harding was not found to have sought Ms Kong’s dismissal.

The EAT also found no reason to interfere with the Employment Tribunal’s decision that the behaviour for which the Bank said it had dismissed Ms Kong could be properly separated from her protected disclosures. As such, her claim was unsuccessful.