Wed 22 Sep 2021

Whistleblowing and employer liability

When is it feasible to draw the line between the actions of a senior employee and the later actions of other employees who take subsequent decisions on related matters?

This was the question which the Employment Appeal Tribunal had to address in Kong v Gulf International Bank Ltd.  The Claimant was employed by the Respondent for eight years, latterly as Head of Financial Audit. During the course of her employment, she raised a number of protected disclosures, (known as "whistleblowing"). One of the matters raised related to her belief that there were insufficient safeguards contained within a template lending agreement used by the Respondent.

The Head of Legal, who had been responsible for the template, challenged the Claimant's view. Following their discussion there was an exchange of emails between the two. The Head of Legal had felt the Claimant had impugned her integrity, was very upset, and raised the matter with the Head of HR and others. She stated she could not continue to work with the Claimant and refused to mediate. The Head of HR and the CEO formed a view that the Claimant should be dismissed.  The Group Chief auditor agreed and dismissed her.

Under s103A Employment Rights Act 1996, a person's dismissal will be automatically unfair if they are dismissed for the reason or principal reason that they have made one or more protected disclosures.

The Claimant raised Employment Tribunal claims for unfair dismissal, automatic unfair dismissal and detriment due to making protected disclosures. The detriment claim was based on the behaviour of the Head of Legal towards her. The first tier Tribunal concluded that this claim would have succeeded had it not been out of time. It found that the Claimant's dismissal was procedurally unfair but did not conclude that the reason for dismissal was due to the making of protected disclosures and so it was not substantively unfair. The Claimant appealed this finding.

The Employment Appeal Tribunal found, on appeal, that the first tier Tribunal had not erred in finding that the reason for the Claimant's dismissal had not been because she had made protected disclosures, rather it was because of her own conduct towards colleagues during this and other incidents which made them not want to work with her. Workplace relationships had broken down and this is why her employment was terminated.

The Respondent in this case was greatly assisted by the fact that they could evidence their reasons and that their reasons were found to be unrelated to the protected disclosures. It had also been in their favour that the Head of Legal had taken no part in the decision to dismiss. In every other sense the Respondent had incurred risk. Their dismissal of the Claimant was found to be procedurally unfair and they had taken no action against the Head of Legal for her treatment of the Claimant. Such actions, or lack, in the absence of clear evidence demonstrating their reasoning, could have resulted in a finding that they had subjected the Claimant to an automatically unfair dismissal. Additionally, had the Claimant raised her claim for unlawful detriment on time, this would most likely have resulted in a finding of liability for detriment on the part of the employer for the behaviour of the Head of Legal.

This case underlines the importance of involving independent parties wherever an employee's future is being considered, particularly where there are circumstances which prevail which might lead to an uncapped level of compensation being awarded if the lines become blurred. Had this not happened in this case, the outcome might well have been very different for the employer.

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