The Court of Appeal handed down a very important whistleblowing case Kong v Gulf International Bank (UK) Limited on 8 July 2022.
Ms Kong was employed by the Respondent, an international bank, as Head of Financial Audit in March 2016.
Over a lengthy period of time toward the end of 2017, Ms Kong raised concerns also known as Protected Disclosures (“PDs”).
The employment tribunal hearing was in January 2020. The Claimant was a litigant in person whilst the bank was represented by Queen’s Counsel.
Gulf accepted Ms Kong made PDs. Gulf accepted that her dismissal was procedurally unfair. The issue then was whether the sole or principal reason for her dismissal were her protected disclosures.
One particular personal incident on 22 October 2018 was important and referred to in the ET judgment, the “Jenny Harding” incident, which was also one of the Claimant’s PDs. Ms Harding, Head of Legal, said the Claimant had “questioned her professional integrity” whereas the Claimant’s position was she had questioned Harding’s ‘legal awareness’. Slammed doors followed.
Ms Kong was summarily dismissed on 3 December 2018, the tribunal finding this was predominantly because of the Jenny Harding incident, dismissing managers wrote “because you were questioning (Harding’s) professional integrity; but the tribunal also found as a fact that the Claimant had only questioned Harding’s “legal awareness” on 22 October 2018. So the R’s reasoning was incorrect, because of what Harding told them.
The tribunal found that Ms Kong’s whistleblowing dismissal failed, but her ordinary unfair dismissal succeeded. The tribunal also found that she would have succeeded in a whistleblowing detriment claim for what happened on 22 October 2018 had it been in time.
This is the key to the legal questions which went up to the Court of Appeal. In circumstances where the tribunal found that Harding’s conduct on 22 October 2018 was because of the PDs, the reason given by R in the dismissal letter was the incorrect reason given by Harding, and she won ordinary UD, should this mean dismissal was “principally because of” the PDs.
Two grounds of appeal advanced by Ms Kong in EAT. First, the particular PD was inseparable from impugning Ms Harding ‘s legal awareness or professional integrity. Secondly, given the finding by the tribunal that “what upset Ms Harding was (PD4)”, she was motivated by the PDs and so the dismissal was also motivated by it.
The EAT dismissed these grounds on the basis that dismissing managers were aware of the nature of the interaction on 22 October 2018 and that the managers were not motivated by the disclosures in dismissing but how she had personally interacted with Harding.
The Court of Appeal has now also dismissed the appeal, finding that you can dismiss for a breakdown in relationship following whistleblowing.
For further information on the issues raised, please contact Mr Elliot Hammer (Head of Employment) at eh@branchaustinmccormick.com
Branch Austin McCormick LLP
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