383: Protected disclosures: the importance of the manner in which the whistleblowing is made

If the sole or principal reason for an employee’s dismissal is that they have made a protected disclosure, the dismissal is likely to be automatically unfair, with potentially unlimited compensation. In Kong v Gulf International Bank, the Court of Appeal has upheld the Employment Appeal Tribunal (EAT)’s decision that dismissing an employee for the unreasonable way she raised a whistleblowing disclosure was not automatically unfair, because her conduct in blowing the whistle had to be separated from the disclosure itself.

Ms Kong worked as Head of Financial Audit for Gulf International Bank. She made a protected disclosure to the Bank’s Head of Legal, Ms Harding, that documentation for a new investment product was illegal. In doing this, she questioned Ms Harding’s legal awareness. This led Ms Harding to complain to the Head of HR and the CEO that Ms Kong had criticised her professional integrity. The Bank concluded that Ms Kong should be dismissed due to the way in which she had questioned Ms Harding’s integrity, which fell short of the professional standards expected of her. It was made clear to Ms Kong that she was not being dismissed due to the protected disclosure she had made.

Ms Kong brought various claims including a claim of automatic unfair dismissal for whistleblowing. This claim was rejected by the Employment Tribunal (the Tribunal) because the decision-makers had dismissed her due to the unreasonable way in which she had raised her concerns with Ms Harding and questioned her professional competence. This could be separated from the fact of her making the disclosure. Since the sole or principal reason for her dismissal was not that she had made a protected disclosure, her whistleblowing claim failed.

The EAT, and now the Court of Appeal, agreed with the Tribunal’s approach. The whistleblowing charity, Protect, intervened when this case reached the Court of Appeal, arguing that it should only be possible to separate out an employee’s conduct in making a protected disclosure where the conduct is wholly unreasonable or amounts to serious misconduct. The Court of Appeal disagreed, ruling that conduct does not need to meet a particular threshold of seriousness before it can be regarded as separate from a protected disclosure. However, if a whistleblower’s conduct is blameless, or does not go beyond ordinary unreasonableness, it is less likely that that conduct would be found to be the reason for dismissal.

The Court of Appeal was satisfied that there was sufficient evidence to show that what motivated the decision-makers to dismiss in this case was not the protected disclosure, but Ms Kong’s lack of emotional intelligence and insensitivity in the way she conveyed personal criticism of Ms Harding. These reasons were clearly separate and distinct from the protected disclosure itself.

This case highlights that it will not be automatically unfair to dismiss an employee for their unreasonable conduct when making a whistleblowing disclosure, although the Tribunal will scrutinise the facts of such cases very carefully to assess the real reason for the adverse treatment. It is worth noting, however, that Ms Kong’s claim for ordinary unfair dismissal did succeed on the basis that the disciplinary procedure was flawed. Protect has raised concerns that this decision undermines whistleblower protection and is likely to support Ms Kong in an appeal to the Supreme Court.

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