Unfair dismissal – Kong appeal for whistleblowing is rejected

The Court of Appeal has dismissed Ms Kong’s unfair dismissal appeal as a result of making protected disclosures.

The facts of the case are as follows: the Appellant was employed as Head of Financial Audit for the Respondent’s bank.  She had worked there for over eight years and had unblemished service.  As Head of Financial Audit, the Appellant made a number of protected disclosures relating to compliance issues.  One of these protected disclosures occurred at a meeting with the Bank’s Head of Legal. The Appellant informed the Head of Legal that she believed that an industry standard MRPA template had insufficient safeguards for the use that Respondent was making of it with respect to non-bank institutions.  The Head of Legal reacted badly to the Appellant raising these concerns and accused her of questioning her professional integrity, though in fact the Appellant had been questioning her professional awareness.  The Head of Legal discussed this incident with many colleagues including the Head of HR and came to the conclusion that the Head of Legal was “at the end of her tether” with the Appellant.  The Head of Legal and Head of HR believed that the Appellant should be dismissed and set about engineering this outcome, giving the Appellant’s line manager effectively no choice but to endorse their recommendation. The Appellant was dismissed without any due process in December 2018.

The Employment Tribunal found that while the Appellant had been subjected to detriment because the Head of Legal’s treatment of her had been materially influenced by her protected disclosures, conversely it was the Appellant’s conduct rather than her protected disclosure to the Head of Legal that was the principal reason for the Appellant’s dismissal. The Appellant succeeded in her “ordinary” unfair dismissal appeal, but failed in her claim for automatic unfair dismissal for whistleblowing. The EAT too concluded that the Tribunal had not erred in law, holding that the Appellant’s conduct was separable from the making of the protected disclosure itself. 

At the Court of Appeal, the Appellant argued two grounds of appeal. First that the Tribunal’s findings on the separability of her conduct and her protected disclosures were inconsistent as between the detriment and dismissal claims, where different legal tests had to be applied. It should have followed that once the Tribunal had found that the Appellant’s conduct in making the protected disclosures and in impugning the Head of Legal’ s competence was inseparable for the purpose of her detriment claim, it should have concluded that the reason for the dismissal was the protected disclosure.  The second ground was that it was not open to the Tribunal on the facts to distinguish between the Appellant’s conduct in making the protected disclosures and the protected disclosures themselves, when deciding that the principal reason for her dismissal was not making the protected disclosures.  The Appellant argued that the question of separability was an objective question – i.e., was the conduct so closely connected to the protected disclosures as not to be properly separable.

The Court of Appeal did not agree. It concluded that in principle that there may be a distinction between the protected disclosure and conduct associated with or consequent on making the disclosure.  It said that, in identifying, as a matter of fact, the real reasons that operated in the mind of the relevant decision-maker in deciding to dismiss, tribunals should be able to make the distinction and separate out a feature of the conduct relied on by the decision-maker that is genuinely separate from making the protected disclosure itself.  It went on to say there is no objective standard against which such conduct should be assessed to see if the separability principle applies, nor does it have to reach a particular standard of unreasonableness. Here, the Tribunal had not erred in deciding that it was Ms Kong’s conduct – her questioning the Head of Legal’s professional awareness – that was the reason for her dismissal. It also said that the Tribunal had not made any perverse findings of fact.

Unfortunately, this decision will have a chilling effect, in that employees may not want to report wrongdoing by their employer if they know that their conduct associated with doing do could lead to adverse consequences, including their possible dismissal.  Employers may feel more emboldened to take action against whistleblowers, knowing a finding of automatic unfair dismissal is less likely, in an unfair dismissal appeal if they can merely find another plausible reason to justify their actions. The protection of the whistleblowing legislation as a consequence will have lessened in light of this decision.

The Appellant is considering appealing to the Supreme Court.

This blog was written by Anita Vadgama, Partner at didlaw and Solicitor for the Appellant Ms Ling Kong.  Didlaw acted pro bono.