What do whistleblowing and an 80’s pop song have in common?
In the words of a popular 80s song “It ain’t what you do (it’s the way that you do it)” – the relevance of the employee’s conduct when blowing the whistle.
The dismissal of an employee will be automatically unfair if the reason, or principal reason for that dismissal is that they have made a protected disclosure (or “blown the whistle”). It is also unlawful for an employer to subject an employee to any detriment on the ground that they have made a protected disclosure. Detriments may include actions such as threats, disciplinary action, loss of work or pay or damage to career prospects.
There is no qualifying minimum period of service to raise an automatically unfair dismissal claim in relation to whistleblowing (in contrast to the 2 years’ service required for ordinary unfair dismissal claims). There is also no upper limit to the compensation which can be awarded and whistleblowing claims are sometimes used tactically by employees for this reason.
Where an employee blows the whistle in the workplace, relationships can often become fraught. What happens if an employer wishes to dismiss an employee because of what they perceive to be inappropriate conduct by the employee during that process, as opposed to the fact that a protected disclosure had been made?
The Court of Appeal recently considered this thorny issue in the case of Kong v Gulf International Bank (UK) Ltd.
Background
Ms Kong was employed by Gulf International Bank as Head of Financial Audit. She raised protected disclosures with the Head of Legal relating to an investment product the bank was offering. In particular, Ms Kong was concerned that the bank was in danger of breach of certain regulatory requirements by using a legal agreement which she perceived to be unsuitable.
The Head of Legal was upset by the emails and challenged Ms Kong’s view. There was an email exchange between the two in which Ms Kong questioned the competence of the Head of Legal. This ultimately led to the Head of Legal saying she could no longer work with Ms Kong because she felt she had impugned her integrity. The Head of HR and CEO of Gulf International Bank felt that Ms Kong should be dismissed because of her behaviour and manner towards colleagues. The Group Chief Auditor agreed and Ms Kong was summarily dismissed.
Ms Kong brought various claims, including automatically unfair dismissal and detriment for having made protected disclosures. She argued that dismissing her for questioning the Head of Legal’s views was, in effect, dismissing her because of the whistleblowing disclosures and that the two issues could not be separated.
Employment Tribunal to the Court of Appeal
The Employment Tribunal held that Ms Kong was unfairly dismissed (on the basis her behaviour did not justify dismissal) but rejected her protected disclosure and automatically unfair dismissal claims. The tribunal found the principal reason for her dismissal was not the fact that 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.
Ms Kong challenged the distinction drawn by the Tribunal at the Employment Appeal Tribunal. Her appeal was refused and she made a further appeal to the Court of Appeal. The Court of Appeal dismissed the appeal on all grounds.
The Court of Appeal held that the real reason for dismissal (whether the protected disclosure or the context of the impugned treatment) is ultimately a matter of fact. The question is whether the reasons are so separate or so closely connected that a distinction cannot be reasonably drawn. The Court of Appeal also agreed that it was correct not to attribute the motives of the Head of Legal to the bank and the focus should be on the motives of the decision makers (those who decided to dismiss Ms Kong) only.
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 because she had made a protected disclosure. The Court of Appeal said that, in principle, there can be a distinction between the whistleblowing disclosure itself and the employee’s conduct associated with making the disclosure. The focus ought to be on the reason(s) operating in the mind of the decision makers when the decision was made to dismiss – was it the employee’s conduct or was it the fact the employee made a protected disclosure?
What should employers do?
We have advised on and argued many such cases and it is often a very fine line between the employee’s conduct on the one hand, and the fact that the employee made a protected disclosure.
In short, not every employee who blows the whistle will succeed in a whistleblowing argument or claim, and many employers can avoid such a claim by closely analysing the true reason for dismissal and setting that out at the time of dismissal.
Whilst each case will ultimately turn on its own facts, this case demonstrates that employers can, in principle, take action against an employee who makes a protected disclosure in an unreasonable or unacceptable way. Employees do not have free reign to act in any particular way simply because they have blown the whistle.
However, employers should tread carefully and continue to ensure that steps are taken to carefully document the reason for dismissal (and the motivation of the decision makers). It is also important that different members of management deal with the protected disclosure and dismissal process, where possible, to support the distinction between the decision makers and those who were aware of the whistleblowing, to allow an argument that there was a potentially fair reason for dismissal unrelated to the whistleblowing.
For those like myself with a love of pop music from back in the day, if you are a whistleblower, it is sadly often the case that: “It ain’t what you do (it’s the way that you do it)” becomes the employer’s defence.
If you have any queries relating to this blog, please contact Caroline Carr or feel free to contact any member of our Specialist Employment Law Team.
This update contains general information only and does not constitute legal or other professional advice.
Caroline Carr, Partner & Accredited Specialist in Employment Law: cac@bto.co.uk / 0141 221 8012 / Connect with Caroline on LinkedIn
