The EAT has upheld a Tribunal judgment that a whistleblower who was dismissed for criticising a colleague was not automatically unfairly dismissed, and confirmed that when determining the reason for dismissal, only in very rare instances will the motives of anyone but the decision maker be attributed to the employer.
The facts
Under whistleblowing law a worker must not be subjected to any detriment by their employer on the grounds that they have made a protected disclosure. In addition, if the main reason for an employee's dismissal is the fact that they have made a protected disclosure, that dismissal will be automatically unfair. When considering what the main reason was for the dismissal, the Tribunal will, as a general rule, only look at the motivation of the decision-maker. However, in 2019, the Supreme Court held that there is an exception to this rule. Where a person in the hierarchy of responsibility above an employee determines that the employee should be dismissed for a reason but that person hides this reason behind an invented reason which the decision-maker adopts, the reason for the dismissal is the hidden reason, rather than the invented reason.
Ms Kong was employed by Gulf International Bank (UK) Ltd as Head of Financial Audit. She raised concerns about a legal agreement relating to a new investment product. She set out her concerns in a draft audit report which she emailed to the Head of Legal, Ms Harding (who was responsible for the agreement) and to others. It was later accepted in the Employment Tribunal that, in raising these concerns, Ms Kong had blown the whistle. She was therefore protected by whistleblowing legislation.
Ms Harding disagreed with Ms Kong’s concerns. She went to Ms Kong’s office and confronted her. During this conversation, Ms Kong questioned Ms Harding's legal awareness about the relevant issue. This was followed by exchanges of emails. Ms Harding thought that Ms Kong had impugned her integrity and raised the matter with the Head of HR and others. She said that she was very upset, she could not see how she could continue working with Ms Kong, and declined mediation. The Head of HR, the CEO and the Group Chief Auditor came to the collective view that Ms Kong should be dismissed because of her manner and behaviour. Ms Kong was dismissed and brought claims in the Employment Tribunal.
Ms Kong’s claim of ordinary unfair dismissal was successful. A claim of whistleblowing detriment would have succeeded, but it was out of time. She also claimed that she had been automatically unfairly dismissed for whistleblowing. This claim was unsuccessful and she appealed to the EAT. The EAT dismissed her appeal.
Important points in the EAT and Employment Tribunal’s judgments are that:
- It is still the general rule that only the decision maker’s motivation when dismissing a whistleblower will be attributable to the employer. It will be highly unusual for the exception to this rule to apply. Here, the decision-makers had not been materially misled about what had occurred by Ms Harding “inventing” the reason that she was upset, nor was she seeking Ms Kong’s dismissal or in the hierarchy of responsibility over Ms Kong. The exception would therefore not apply.
- Ms Kong’s whistleblowing disclosures could, in this case, be separated from her conduct. Ms Kong argued that she had in effect been dismissed for whistleblowing because she had questioned Ms Harding’s legal awareness or integrity, which was inseparable from the whistleblowing. However, the EAT and Tribunal considered that what had motivated the dismissing managers was not Ms Kong’s whistleblowing but the way in which she had conveyed personal criticisms to Ms Harding. Ms Kong had been involved in similar incidents before, but no action had been taken. The managers had considered that her unacceptable style of interaction had now manifested itself in an incident that was so serious in its impact on a senior colleague, with no prospect of her mending her ways, that she had to go.
What does this mean for employers?
This case provides useful clarification for employers about the limited scope of the exception to the general rule that it is only the decision-maker’s motivation that is relevant to a whistleblowing dismissal.
Employers who are contemplating dismissing an employee in the context of whistleblowing complaints should proceed with great caution. The line between dismissing someone for whistleblowing and dismissing an employee for their conduct while they are whistleblowing can be a very thin one. Employers should always carefully document the reason for dismissal and if possible the decision to dismiss should be taken by someone who has not previously been involved in the situation that led to the dismissal.
Mrs L Kong v Gulf International Bank (UK) Limited EA-2020-000357-JOJ.
