Can a whistleblower be fairly dismissed for what decision-makers perceived as inappropriate conduct in the way the protected disclosure was made, when the tribunal finds that the disclosure was not made inappropriately?
Yes, held the Court of Appeal in Kong v Gulf International Bank (UK) Ltd.
The Claimant was employed by the Respondent as Head of Audit. She made protected disclosures to the Head of Legal. The Head of Legal was upset by the disclosures, refused mediation and said she could no longer work with the Claimant. The Claimant was summarily dismissed.
The Claimant brought claims for ordinary unfair dismissal, automatic unfair dismissal by reason of having made protected disclosures, whistleblowing detriment, and wrongful dismissal.
The tribunal held the Claimant was unfairly dismissed but rejected her protected disclosure and dismissal claims, together with her wrongful dismissal claim. The tribunal found the principal reason for the Claimant’s dismissal was not the fact she made protected disclosures but that she had questioned the competence of the Head of Legal. The tribunal found this was a separate reason related to her conduct and not her protected disclosures. It was this distinction drawn by the tribunal that was challenged on appeal.
The EAT and Court of Appeal dismissed the appeal on all grounds.
The Court of Appeal held that it is a matter of fact as to the real reason for the treatment where a protected disclosure is the context for impugned treatment. It is also a matter of fact as to whether the reasons are separate or so closely connected that a distinction cannot fairly and sensibly be drawn. The fact that the tribunal had found that the Claimant had not behaved in a way that justified her dismissal did not mean that it was required to find that the dismissal decision was taken on the prescribed ground.
Thanks to Kate Lea of didlaw for preparing this case summary.