Whistleblowing dismissals – Employment Appeal Tribunal decision

Kong v Gulf International Bank (UK) Limited

Whistleblowing dismissals – The Employment Appeal Tribunal (EAT) upheld the Employment Tribunal’s decision that an Employee who had made whistleblowing disclosures had not been unfairly dismissed despite making protected disclosures.

Facts

Ms Kong was employed by Gulf International Bank (UK) Limited as Head of Financial Audit. She had prepared a draft audit report raising concerns about a financial product and associated legal agreement which presented an element of risk for the bank. This was later accepted by the employer to amount to a protected disclosure/whistleblowing.

The Head of Legal who had been responsible for the agreement was unhappy that Ms Kong had raised this issue, and this resulted in a heated argument between the two. During the argument, Ms Kong raised questions about the Head of Legal’s competence and questioned her integrity. Following this incident, the Head of Legal stated that she did not wish to continue working with Ms Kong, and as a result the Head of HR and the bank’s CEO made a decision to dismiss.

Ms Kong made a claim for detrimental treatment and automatically unfair dismissal.

Whilst it was found that Ms Kong had been ordinarily unfairly dismissed, her claim for automatically unfair dismissal failed. Her claim for detrimental treatment could have been successful, but this was found to be out of time.

Ms Kong appealed to the EAT, but the original decision was upheld. Whilst the Head of Legal had treated Ms Kong detrimentally as a result of the whistleblowing, it was not the reason she was dismissed. Ms Kong was found to have acted poorly towards the Head of Legal in raising her concerns about the legal agreement and there were reports of previous communication or conduct issues towards colleagues.

In considering the Appeal, the EAT considered the leading case of Jhuti v Royal Mail Group Limited [2019] UKSC 55 (Jhuti). In Jhuti, an employee had fabricated allegations of inadequate performance in order to influence the decision to dismiss the Claimant, because the Claimant had made whistleblowing disclosures. This tainted the decision-making and was found to be automatically unfair.

In Kong, of the EAT considered the facts of the Jhuti case were extreme, and the circumstances where this can be applied should be limited. Here, the Head of Legal slightly exaggerated the extent to which the Claimant questioned her integrity, but this situation was very distinct to Jhuti.

Three essential requirements should be met in order for Jhuti to apply:

• The alleged influencing person has to actively seek dismissal of the whistle-blower as a result of disclosures made. In this case, the Head of Legal had actually questioned whether it was proportionate to dismiss Ms Kong.
• The decision maker has to be peculiarly or heavily reliant on the influencing person for the underlying facts. When considering whether Jhuti applies the court can only look at the motivation of the decision maker in order to attribute it to the employer. Here, the decision makers were independent of the disclosures made and there was nothing to suggest that they had been manipulated or influenced to make the decision by the Head of Legal.
• The influencing person has to be in a role where you can attribute the motivation to dismiss to the employer. The person alleged to be influencing the dismissal has to be particularly involved in the investigation or in the hierarchy above the employee. For Jhuti to bite, the alleged influencing person has to have responsibility for the Claimant or a direct reporting line, as opposed to just being in management.

Comments

The case highlights the rarity at which Jhuti will be applied. Where the alleged influencing person has no direct managerial responsibility over the dismissed employee and where they do not actively seek their dismissal, then the dismissal will not be tainted.

It is helpful for employers to note the importance of keeping clear notes and reasoning for dismissals. In this case, the dismissal was found to be procedurally unfair, but not automatically unfair because the employer was able to evidence clear reasons as to why they had dismissed the Ms Kong, and these were unrelated to the whistleblowing. Disciplinary officers who are independent of the employee and any whistleblowing disclosures make the decision to dismiss easier.

If you have any questions regarding this case then please do get in touch.