Avoiding Whistleblower Protection
The case of Kong v Gulf International is a potentially useful case for employers who are considering dismissing a whistleblower.
As you will be aware, a dismissal on the grounds of whistleblowing will be automatically unfair and any resulting compensation will be uncapped, so the stakes are high when faced with this issue.
In the Kong case, there was a professional disagreement between Ms Kong, the Head of Financial Audit, and Ms Harding, the Head of Legal. Gulf accepted that, in the course of this disagreement, Ms Kong made a protected disclosure to Ms Harding about the wrong form being used for non-bank to bank lending. However, as well as making the disclosure, Ms Kong went on to criticise Ms Harding’s technical competence and professional integrity. Ms Harding complained and stated that she could no longer work with Ms Kong and wanted any future contact with her to be minimised.
Gulf considered the issue and decided that Ms Kong needed to be dismissed; they found that her behaviour in attacking her colleague’s credibility fell well below the standards that Gulf expected.
Following her dismissal, Ms Kong brought a tribunal claim alleging that she had been dismissed for blowing the whistle. The ET found that she had made a protected disclosure but found that her dismissal was merely unfair on ordinary principles and not automatically unfair on whistleblowing grounds. The ET concluded that Gulf had dismissed Ms Kong (unfairly) because of her behaviour towards her colleague and not solely or mainly because of the fact of the whistleblowing. Gulf was assisted in this regard by the fact that it took the whistleblowing seriously, included a record in its audit report of the wrong form being used, and changed its approach thereafter.
Both the EAT and Court of Appeal were satisfied that what prompted the decision maker to dismiss Ms Kong was not the content of the whistleblowing but the manner in which Ms Kong had conveyed her concerns. Interestingly, the ET observed that Ms Harding’s complaint about Ms Kong was motivated by a desire to have her sacked and they found that this was connected to the whistleblowing. However, Ms Harding’s motivation was not “imputed” onto the decision makers who had their own reasons for terminating Ms Kong (albeit that the dismissal was ultimately held to be unfair). The EAT and Court of Appeal agreed with this finding.
This case clearly shows that what matters in whistleblowing cases is the real reason operating in the mind of the decision maker: is it the whistleblowing or is it something else? Where a whistleblower is blameless in their conduct, pointing to “something else” will be very difficult for an employer. However, where there is any element of blame which can be attributed to the whistleblower, it may be possible to separate the conduct from the whistleblowing and proceed accordingly.
This may not be the end of the story as Ms Kong is apparently considering an appeal to the Supreme Court. However, we don’t think it’s likely that any such appeal will succeed, because it must be right that whistleblowers can’t be rendered immune from sanctions if they behave inappropriately in connection with their whistleblowing.
On a practical level, we would always recommend that employers respond to whistleblowing positively, that the matter is carefully investigated and any learning points are recorded with changes made. Taking these steps will help to demonstrate that you have embraced the whistleblowing which would tend to suggest that you are less likely to want to retaliate against the whistleblower.