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Whistleblowing Detriments

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Is a tribunal entitled not to attribute the motivations of a manager who complained about the Claimant to the employer?

Yes, held the EAT in Kong v Gulf International Bank Ltd.

The Claimant made a number of protected disclosures. The tribunal found that the Respondent's Head of Legal subjected the Claimant to a detriment which was materially influenced by two of the protected disclosures. However, it determined that any impermissible motivation on the part of the Head of Legal could not be attributed to the other managers who subsequently took the decision to dismiss the Claimant.

The EAT stressed that three essential requirements must be met before the principles in Royal Mail Group Ltd v Jhuti will apply. Firstly, the person whose motivation is attributed to the employer must have tried to procure the employee's dismissal because of the protected disclosure(s). Secondly, the dismissing manager must be "peculiarly dependent" upon that person as the source for the underlying facts. Thirdly, the role or position of the person who 'procured' the dismissal is such that it would be appropriate to attribute their motivation to the employer. None of those requirements were satisfied in this case.

This is another case which emphasises that the principles in Jhuti will only disturb the general rule - that the reason for dismissal is the reason operating on the mind of the decision-maker(s) - in very limited circumstances.

Thanks to Jonathan Cook of Cloisters, for preparing this case summary.