Whistleblower dismissed for conduct when making protected disclosure, not the protected disclosure itself

In a recent case, the Court of Appeal upheld the Employment Tribunal’s (“ET”) judgment that a whistle-blower was not unfairly dismissed in circumstances where the reason that the decision-maker dismissed her was not the Protected Disclosures (“PDs”) itself, but because of the manner in which the PDs were made. In Kong v Gulf International (UK) Ltd (Protect (the Whistleblowing Charity) intervening) [2022] EWCA Civ 941, the Court of Appeal confirms that, in the context of an automatic unfair dismissal claim under s 103A Employment Rights Act 1996 (“ERA 1996”), the ET is entitled to distinguish the manner in which the Claimant whistle-blew (or made the protected disclosures) from the actual protected disclosures themselves when deciding that the principal reason for the dismissal.

Whistleblowing claims is one of Farore Law’s main areas of expertise, including automatic unfair dismissal claims under s 103 ERA 1996. Kong is an interesting and significant case for whistleblowing lawyers, as it confirms that the “separability principle” applies to s 103A claims. In particular, an employer can argue that the reasons for dismissing an employee was not because the employee made PDs, but the employee’s conduct in making the protected disclosures.

Background

Ms Kong (“the Claimant”) worked for Gulf International (UK) Ltd (“the Bank”), a Bahraini bank with offices in London.

The Claimant was employed by the Bank in February 2010, initially as a Senior Business Auditor, and was subsequently promoted in March 2016 as the Head of Financial Audit. The Claimant was responsible for carrying out risk-based audits on all business activities of the Bank. The Claimant reported directly to the Group Chief Auditor, Mr Khalid Mohammed, who was based in Bahrain.

Throughout the Claimant’s employment with the Bank, her performance was generally rated as outstanding and exceeding expectations in yearly appraisals. However, the Claimant had a reputation for being inflexible and lacking “softer, interpersonal” skills.

In 2018, the Claimant made ten Protected Disclosures (“PDs”). Of relevance was a verbal PD that the Claimant made to the Bank’s Head of Legal, Ms Jenny Harding, on 22 October 2018 that an industry standard financial compliance template (designed for bank-to-bank lending) was not suitable for the use the Bank was making of it for non-bank-to-bank lending. The Claimant subsequent PD by emailing Ms Harding on 23 October 2020 repeating some of what she said the day before.

In making these PDs, Ms Harding became very upset, as the Claimant was questioning her competence as an in-house lawyer. For example, during the 22 October 2018 meeting, Ms Harding was described as being agitated throughout the meeting and walked out of the meeting. Ms Harding escalated this with the Head of HR, Ms Yates, to discuss her options against the Claimant.

Ms Harding did not want to raise a formal grievance or undergo mediation with the Claimant. Instead, she chose to raise the matter to Mr Mohammed, as the Claimant’s line manager, and the Bank’s CEO, Mr Garrett-Cox.

Following the Claimant’s PDs on 22 October 2018 and 23 October 2018, the Claimant met with Ms Harding on 24 October 2018. Although the meeting was described as a productive one, Ms Harding felt that the damage to their professional relationship had been done and questioned how she could maintain a working relationship with the Claimant.

Given that the Claimant and Ms Harding’s relationship became irreparably damaged following her PDs, Ms Yates, Mr Garrett-Cox and Mr Mohammed took the view that the Claimant should be dismissed. This was not only because of the way in which she treated Ms Harding, but also due to previous incidents towards colleagues which demonstrated the Claimant’s lack of interpersonal skills.

The Claimant was therefore dismissed on 3 December 2018, given that the Bank lost trust and confidence in her.

The Claimant appealed her dismissal without success. She subsequently brought proceedings against the Bank in the Employment Tribunal for ordinary unfair dismissal (s 98 ERA 1996), automatic unfair dismissal by reason of PDs (s 103A ERA 1996), detrimental treatment by reason of making PDs (s 47B ERA 1996) and wrongful dismissal.

 ET judgment

The ET found that Ms Harding was upset both because of the PD and the fact that the Claimant had questioned her competence. The ET held that the PDs had materially influenced Ms Harding meting out detriments against the Claimant, but that the s 47B claim was time-barred.

The ET also held that the principal reason for the Claimant’s dismissal was not the PDs but the fact that she questioned Ms Harding’s professional awareness or competence. This was a separate reason related to her conduct and not her PDs. The ET noted that Ms Harding was genuinely upset by the Claimant and so the reason for the dismissal was potentially fair under s 98(2) ERA 1996.

EAT judgment

The Claimant appealed to the Employment Appeal Tribunal to challenge the ET’s rejection of the automatic unfair dismissal claim. In addition to challenging the ET’s conclusion that her conduct was separable from the PDs (“the separability ground”), the she also challenged the ET’s failure to impute Ms Harding’s motivation for her detrimental treatment to the Banks’s dismissing officers (Ms Yates, Mr Garrett-Cox and Mr Mohammed), by reference to the principle in Royal Mail Group Ltd v Jhuti [2019] UKSC 55, which held that although in most cases, the ET should only consider the decision-maker’s reasons for the dismissal, in certain circumstances a wider inquiry should be appropriate, where the reasons for the dismissal given by the decision-maker turns out to have been bogus.

HHJ Auerbach dismissed all grounds. The EAT noted that for the decision-makers, it was the impugning of Ms Harding’s awareness or professional competence which was the principal reason for the dismissal, based on the email that the Claimant had sent to Ms Harding on 23 October 2018 and not the PDs itself. The EAT also noted that Ms Harding was genuinely upset with the Claimant and that the dismissing officers thought that the Claimant’s “unacceptable style of interaction had now manifested itself in an incident that was so serious in its impact on a serious colleague, with no prospect of her changing her ways, that she had to go” (see paragraph 90 of the EAT judgment).

Court of Appeal decision

The Claimant appealed the EAT decision to the Court of Appeal on two grounds:

·       Narrow ground: the ET’s findings on the separability of the Claimant’s conduct and the PDs were inconsistent as between the detriment and dismissal claims (under ss 47B and 103A ERA 1996) and meant that a different legal test was applied to these two claims. Once the ET found that the Claimant’s conduct in making these PDs and in impugning Ms Harding’s competence were inseparable for the purposes of the s 47B detriment claim, it followed that it should have concluded that the reason or the principal reason for the dismissal was the making of the PDs. In failing to reach this conclusion, the ET had misdirected itself as to the law.

·       Broader ground: it was not open for the ET on these facts to distinguish between the Claimant’s conduct in making the PDs and the PDs themselves, irrespective of the detriment finding, when deciding that the principal reason for the dismissal was not the PDs. In particular, the fact that Ms Harding was upset is not something that could properly be separated from the PD themselves. If it could, any person subject to a PD themselves could rely on being upset in response to justify retaliating against the whistle-blower. This would undermine the protections under the public interest disclosure provisions of the ERA 1996.

Simler LJ dismissed both grounds of appeal and held that there may in principle be a distinction between the PD and the conduct associated with or consequent on the making of the PD. Her Ladyship stated that “a decision-maker might legitimately distinguish between the protected disclosure itself, and the offensive or abusive manner in which it was made, or the fact that it involved irresponsible conduct such as hacking into the employer’s computer system to demonstrate its validity”.

Simler LJ went on to state that “common sense and fairness dictate that tribunals should be able to recognise such a distinction and separate out a feature (or features) of the conduct relied on by the decision-maker that is genuinely separate from the making of the protected disclosure itself”.

The judge went on to state that the “separability principle” is not a rule of law or a basis for deeming an employer’s reason to be anything other than the facts disclose it to be. Simler LJ commented at paragraph 57 that the “separability principle” “is simply a label that identifies what may in a particular case be a necessary step in the process of determining what as a matter of fact was the real reason for the impugned treatment”. This is the case, as whistleblowers do not have “immunity for behaviour or conduct related to the making of a protected disclosure no matter how bad”.

Simler LJ held at paragraph 59 that the “statutory question to be determined in these cases is what motivated a particular decision-maker; in other words, what reason did he or she have for dismissing or treating the complainant in an adverse way”.

On the facts, there was no inconsistency between the ET’s conclusions about separability as affecting the detriment claim on the one hand and the unfair dismissal on the other. The decision-makers in the two claims were different. Whereas the decision-maker for the detriments under the s 47B claim was Ms Harding, the dismissing officers for the purposes of the s 103A claim were Mr Mohammed, Mr Garrett-Cox and Ms Yates.

What to take away

Protect (the Whistleblowing Charity) was an intervener in the Court of Appeal hearing and invited the Court of Appeal to adopt a structured approach to the separability question (as a toolkit):

(1)   The ET should consider what specific aspect of the Claimant’s conduct is relied on as the reason for the adverse treatment.

(2)   Did the Claimant engage in that conduct, and if so, was the conduct a feature in the Claimant making the PDs or a corollary or consequence?

(3)   If so, did the conduct constitute wholly unreasonable behaviour or misconduct? Only if so, is the conduct likely to be separable from the making of the PD.

Simler LJ did not consider that the toolkit proposed by Protect was necessary to adopt and declined to endorse it.

Protect takes the view that Kong is likely to create uncertainty for whistleblowers and make it easier to victimise and dismiss whistleblowers and considered the judgment to be disappointing in that regard.

However, Simler LJ’s judgment is a principled one. Simler LJ’s conclusion that the “separability principle” is simply a process of determining what as a matter of fact was the real reason for the impugned treatment and that whistleblowers do not have immunity for bad behaviour is consistent with the case law on retaliation for trade union activities and victimisation. As Simler LJ noted in her judgment, the case law on trade union retaliation, victimisation and detriments or dismissal for making protected disclosures all share a common element, which is that the ET must carry out an enquiry into the employer’s reasons for reacting to something the individual said or done. Simler LJ noted that a consistent approach emerges from the authorities and that each case ultimately turns on its own particular facts.

For example, the judge noted that, in the context of retaliation for trade union activities, the case law reveals a distinction between being dismissed for carrying out trade union activities and a dismissal for other conduct occurring in the context of or associated with such activities. In Lyon v St James Press Ltd [1976] ICR 413, Phillips J stated that the “special protection…to trade union activities must not be allowed to operate as a cloak…for conduct which ordinarily would justify dismissal; equally, the right to take part in the affairs of a trade union must not be obstructed by too easily finding acts done for that purpose to be a justification for dismissal.” In Lyon, the EAT held that acts which are “wholly unreasonable, extraneous or malicious acts done in support of trade union activities might be a ground for a dismissal which would not be unfair”. In Morris v Metrolink Ratp Dev Ltd [2018] EWCA Civ 1358, an automatic unfair dismissal case under s 152(1)(b) of the Trade Union and Labour Relations (Consolidation) Act 1992 (dismissal for taking part in trade union activities), Underhill LJ stated that the point encapsulated in Lyon is that it can “fairly be said that it is not the trade union activities themselves which are the (principal) reason for the dismissal but some feature of them which is genuinely separable”.

Similarly, in the context of a victimisation claim (under what is now s 27 of the Equality Act 2010), Underhill LJ held in Martin v Devonshire Solicitors [2011] ICR 352 that in principle, an employer can say that the reason for the dismissal was not for making a Protected Act as such but a feature of which it can properly be treated as separable. On the facts of Martin, the Claimant was dismissed not for making a discrimination complaint, but because she was mentally ill and likely to act in an unacceptable way in the future, as evidenced by her repeated serious, false allegations which she refused to accept were false.

Finally, in the whistleblowing context (a claim under s 47B ERA 1996), the Court of Appeal in Fecitt v NHS Manchester [2011] EWCA Civ 1190 held that “where the whistleblower is subject to a detriment without being at fault in any way, tribunals will need to look with a critical – indeed sceptical – eye to see whether the innocent explanation given by the employer for the adverse treatment is indeed the genuine explanation”, but went on to state that it cannot be right that the need to resolve a difficult and dysfunctional situation in the workplace could never provide a lawful explanation for imposing a detrimental treatment on a whistleblower.

It therefore follows that the decision in Kong was a correct one, as it emphasises a well-established principle that when determining the employer’s reason for reacting to something said or done by an individual will ultimately turn to the facts of each case.

The Court of Appeal judgment can be accessed here.