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Court confirms whistleblowers can be fairly dismissed over conduct
Written by Lesley Rennie on 30 August 2022
Dismissing an employee in retaliation for ‘blowing the whistle’ on certain prescribed matters, such as a health and safety breach or a failure to fulfil a legal duty, is automatically unfair. This is a day one right, meaning there’s no minimum length of service required for employees bring a claim.
In these situations, compensation is uncapped and there’s the possibility of significant reputational damage and adverse publicity for the employer.
In short, taking action against whistleblowers is risky business. But that’s not to say that whistleblowers can never be fairly dismissed, provided it’s for a reason which can be separated from any protected disclosure.
So, while employers often feel that whistleblowers are untouchable – and to a large extent they are – there are certain situations in which dismissal may be justified and may not attract liability for an automatic unfair dismissal claim.
In fact, a recent case has highlighted that whistleblowers can be fairly dismissed in circumstances where their dismissal was due to how they made the disclosure, rather than the fact of the disclosure itself. But as this case illustrated, it’s often very difficult to distinguish between the two.
Kong v Gulf International Bank (UK) Ltd
The Claimant in this case, Ms Kong, worked as the Head of Financial Audit for Gulf International Bank. She worked alongside the Head of Legal, Ms Harding.
During her employment, Ms Kong raised a number of concerns to Ms Harding regarding the suitability of the Bank’s use of a compliance document. The document was intended for bank-to-bank lending, whereas Gulf was using it for non-Bank-to-Bank lending.
The Employment Tribunal (ET) found that in raising this issue, Ms Kong had made a protected disclosure.
What is a protected disclosure?
A ‘protected disclosure’ will be found where a worker has disclosed any information which, in their reasonable belief, is made in the public interest and tends to show one or more of the following:
- That a criminal offence has been committed, is being committed or is likely to be committed;
- That a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject;
- That a miscarriage of justice has occurred, is occurring or is likely to occur;
- That the health or safety of any individual has been, is being or is likely to be endangered;
- That the environment has been, is being or is likely to be damaged; or
- That information tending to show any matter falling into one of these categories above has been, is being or is likely to be deliberately concealed.
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Determining the real reason for dismissal
In voicing her concerns, Ms Kong questioned Ms Harding’s legal awareness and made explicit personal criticisms of her competence. Upset and perceiving that Ms Kong had challenged her integrity, Ms Harding said that she could no longer work with Ms Kong, leading to her subsequent dismissal.
Ms Kong then brought several claims against the Bank, including ordinary unfair dismissal, automatic unfair dismissal by reason of having made protected disclosures, whistleblowing detriment, and wrongful dismissal.
While the ET agreed that Ms Kong had been unfairly dismissed, as there was no fair reason for dismissal and no fair process had been followed, it rejected all of her other claims.
Her claim for automatic unfair dismissal (i.e. whistleblowing) failed on the basis that the Bank’s decision to dismiss wasn’t due to the protected disclosures she had made, but rather related to her conduct, specifically the fact that she had questioned Ms Harding’s competence and legal awareness.
Ms Kong challenged the Tribunal’s decision by appealing to the Employment Appeal Tribunal (EAT), but this was dismissed. She then appealed to the Court of Appeal (CoA), arguing that it was not open to the ET to distinguish between her conduct in how she made the disclosures and the disclosures themselves. Put simply, the two could not be separated.
The CoA found that there was no rule of law which required any conduct associated with the disclosures to be more than ordinarily unreasonable before it could be seen as being entirely separate to the disclosures themselves.
In some cases, the separation will be obvious, for instance if an employee raises concerns about health and safety issues but in doing so makes racist comments about his line manager. In others, such as in Ms Kong’s case, it will be far more subtle.
The CoA stressed that there will be few cases in which criticism of colleagues or causing upset to others in and of itself will amount to misconduct which is entirely distinguishable from the disclosure, and which can therefore provide a reason for dismissal other than the disclosure. Where a whistleblower is entirely blameless and is ostensibly dismissed for a conduct-related reason, an ET must carefully scrutinise the facts of the case and what was in the decision maker’s mind at the time of dismissal.
In Ms Kong’s case, whilst her disclosures and her behaviour towards Ms Harding in challenging her competency were closely linked, it was held that the decision makers genuinely believed that her conduct in questioning Ms Harding’s competency and legal awareness was unacceptable and displayed a lack of emotional intelligence in how she dealt with her colleagues. Whilst some criticism of Ms Harding was implicit in making the disclosure, Ms Kong had gone beyond this.
Interestingly, the ET didn’t believe that Ms Kong had acted inappropriately or unreasonably in how she made the disclosures. Further, there was an acceptance that Ms Harding may have been motivated by the disclosures. However, crucially, Ms Harding played no part in the decision to dismiss, and the ET declined to attribute her motivation to those who did reach that decision.
Ultimately, it was found that the decision makers were not motivated by the fact that she had made disclosures and instead reached the decision to dismiss based on their belief that Ms Kong had acted inappropriately in carrying out what they felt to be an unacceptable personal attack on Ms Harding’s legal abilities. As such, the ET was satisfied that the principal reason for dismissal was her conduct and not the protected disclosures.
Another case of ‘not what employees do, but how they do it’?
This case is a salutary reminder of the fine line employers must tread when dealing with conduct issues arising from protected disclosures having been made. In particular, it highlights an important distinction between an employee’s actions – which may be protected under employment law – and the manner in which they express themselves.
In this case, it was Ms Kong’s conduct towards Ms Harding that prompted her employer to dismiss. Protected disclosures will invariably contain some criticism of others and have the potential to cause upset, but Ms Kong’s conduct in specifically challenging Ms Harding’s legal awareness went further than that implicit criticism and crossed the line into a misconduct issue. In essence, it wasn’t what she said but how she said it.
We saw a similar distinction recently in the infamous Forstater case, which involved a researcher who made various comments on social media relating to her belief that people cannot change their sex. Following these comments, the employer chose not to renew Ms Forstater’s fellowship, and she subsequently brought various discrimination complaints. In this case, the ET (once the Supreme Court has confirmed that Ms Forstater’s belief qualified for protection under the Equality Act 2010) had to determine the reason for her treatment: was it the belief itself (unlawful discrimination) or was it because she manifested that belief in a way which was objectively offensive or unreasonable?
In other words, in cases involving whistleblowing or protected beliefs, employers need to carefully consider why they are taking the course of action they intend to take: is it the protected act/belief or is it the employee’s conduct? And if it’s the latter, how will you demonstrate that to a Tribunal if challenged?
Top tips for avoiding risk when dismissing those who have made protected disclosures
Fully investigate the alleged misconduct. A full investigation will be worth its weight in gold when establishing that the reason for dismissal was conduct, not the disclosure itself.
Consider implied bias. Could the decision maker be unwittingly motivated by resentment that the protected disclosure has been made?
Ensure the decision to dismiss is taken by someone with no prior involvement in the situation. This will help to prevent any suggestion that the decision is based on anything other than an objective view of the employee’s conduct or performance.
Follow a full and fair process. If an automatic unfair dismissal claim is brought and is successful, this will help to minimise the risk of an uplift of up to 25% being applied on any compensation awarded on the basis that there has been an unreasonable failure to follow the Acas Code.
Pause and take stock before reaching the decision. Are you sure that the conduct can be separated from the disclosure? Can you evidence this?
Seek specialist legal advice. Particularly in situations as complex and risky as whistleblowing, professional guidance will help you to avoid costly pitfalls.
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