Dismissal following protected disclosure


30 September 2021

The Employment Appeal Tribunal has considered whether an employee was automatically unfairly dismissed after making a protected disclosure.

Kong v Gulf International Bank (UK) Ltd [2021] EA-2020-000357-JOJ and EA-2020-000438-JOJ

Facts

In this case, the claimant had raised concerns that a legal agreement for one of the employer’s financial products did not contain sufficient safeguards, meaning that the company was at risk of breaching regulatory requirements. She emailed a report to the employer’s Head of Legal, Ms H. At a subsequent meeting, the claimant questioned Ms H’s legal awareness of the issue. Ms H later complained that the claimant had criticised her professional integrity, and indicated that she was not willing to continue working with the claimant.

Following discussions between HR and management, the decision was made to terminate the claimant’s employment. At a meeting with the claimant, it was explained to her that the dismissal was not connected to the protected disclosures that she had made in relation to the financial product, rather it was due to her behaviour, manner and approach to colleagues. The dismissal letter made reference to her questioning of Ms H’s integrity and described her as falling “well short of the standard of behaviour” expected by the employer.

A tribunal upheld the claimant’s unfair dismissal claim, but her claim for automatic unfair dismissal failed. Her claim for unlawful detriment relating to her treatment by Ms H would have succeeded, but was out of time. The claimant appealed to the EAT against the finding that her dismissal was not automatically unfair.

EAT decision

The appeal was dismissed. The managers who had taken the decision to dismiss the claimant had done so because of her conduct, not because of her protected disclosures. The complaint made by Ms H about the claimant had been motivated by the protected disclosures, but the EAT agreed with the tribunal’s conclusion that it was not appropriate to attribute this motivation to the company when it made the decision to dismiss.

The EAT confirmed in its decision that when considering the motivation for a dismissal, only the motivation of the decision makers can be attributable to the employer. Only in very rare cases, such as when the situation has been deliberately manipulated by a person in the hierarchy of responsibility above the employee, can the ‘hidden’ reason for the dismissal be attributed to the employer. This had been the situation in the case of Royal Mail Group Ltd v Jhuti, which was decided by the Supreme Court in 2019.

Consequences of this decision

This decision has helped to clarify the scope of the principle established in the case of Jhuti, that a reason for a dismissal that has been deliberately hidden from the employer’s decision makers (i.e. a protected disclosure), can still be attributed to the employer. This principle will only apply in extreme cases, where there is evidence of active and deliberate manipulation, not cases such as this one where the tribunal had been entitled to conclude that the reason for the dismissal was the claimant’s behaviour to colleagues, rather than the act of making a protected disclosure.

This article is from the September 2021 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. For further information please contact Liz Stevens or another member of Birketts' Employment Law Team.

The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at September 2021.

Author

Liz Stevens

Professional Support Lawyer

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