Whistleblowing claims: dismissal for way employee blew the whistle not automatically unfair

Conduct was separate from whistleblowing disclosure

An employee who was dismissed due to the manner in which she raised a whistleblowing concern had not been automatically unfairly dismissed on whistleblowing grounds. The employment tribunal had been entitled to find that her conduct when blowing the whistle (the employer’s reason for dismissal) was separate from the whistleblowing disclosure itself. 

Whistleblowing disclosure

Ms Kong worked as Head of Financial Audit for Gulf International Bank.  She made a protected disclosure to the Head of Legal, Ms Harding, saying that the template agreement being used for one of the Bank’s financial products was unsuitable. Ms Harding disagreed with her view and Ms Kong went on to question Ms Harding’s legal awareness of the issue. Ms Harding was upset by this and complained to the Head of HR and the CEO that Ms Kong had criticised her professional integrity.

Employer’s reason for dismissal

The Head of HR and CEO considered that Ms Kong should be dismissed and Ms Kong’s boss agreed.  The CEO informed Ms Kong of her dismissal, saying that her behaviour, manner and approach with colleagues had resulted in them not wanting to work with her, but that her dismissal was not connected to the whistleblowing disclosure.  The dismissal letter specifically referred to Ms Kong having questioned Ms Harding's integrity and said that her approach was “entirely unacceptable and fell well short of the standard of professional behaviour" expected.

Automatic unfair dismissal claim

Ms Kong claimed that her dismissal was automatically unfair as she had been dismissed for blowing the whistle.  The employment tribunal disagreed.  It concluded that the decision-makers had decided to dismiss Ms Kong due to the way in which she had raised her concern with Ms Harding and questioned her professional awareness or competence. This was separate from the whistleblowing disclosure.  

The Employment Appeal Tribunal agreed. 

The whistleblowing charity, Protect, intervened when the case reached the Court of Appeal.  It argued that it should only be possible to separate out an employee’s conduct in making a protected disclosure from the making of a protected disclosure itself where the conduct is wholly unreasonable or amounts to serious misconduct. 

The Court of Appeal disagreed. It considered 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 considered it less likely that that conduct would be found to be the reason for dismissal (and so more likely that whistleblowing would be the reason for dismissal). In such cases, tribunals will need to scrutinise the employer’s reason for dismissal carefully to make sure that whistleblowing is not the reason for dismissal

In this case, the employment tribunal had scrutinised the evidence carefully and had concluded that what motivated the decision-makers to dismiss was not the protected disclosure, but Ms Kong’s lack of emotional intelligence and insensitivity in the way she conveyed personal criticisms of Ms Harding to her. The tribunal had been entitled to find that those reasons were separate from the disclosure, even though it considered that Ms Kong’s conduct was broadly reasonable and that she had not questioned Ms Harding’s integrity.  

What does this mean?

The decision gives reassurance to employers that it is possible to dismiss an employee due to their conduct in making a whistleblowing disclosure. The dismissal will not be automatically unfair, even where the employment tribunal finds that the employee’s conduct was not unreasonable. However,  the tribunal will scrutinise the employer’s decision in such cases very carefully. 

Nevertheless, a finding that the employee’s conduct was not unreasonable will mean that the dismissal will be unfair and so employees with two years’ service will succeed in an ordinary unfair dismissal claim. Unlike in whistleblowing cases, the compensatory award in an ordinary unfair dismissal claim is capped at the lower to 52 weeks’ gross pay and the maximum compensatory award, currently £93,878.  

Ms Kong is considering an appeal to the Supreme Court. 

Kong v Gulf International Bank (UK) Ltd