Tribunal Tales – Kong v Gulf International Bank (UK) Ltd

The Claimant worked at Gulf International Bank Limited as the Head of Financial Audit. She had concerns regarding a legal agreement about a new product. She presented these in a draft report that was sent to the company’s Head of Legal, Ms Harding. Ms Harding had written the agreement that the Claimant was concerned about. She disagreed with the Claimant’s assessment of the situation. The Claimant questioned her knowledge of the law and Ms Harding felt she also called into question her professional integrity.

This was brought to the attention of HR. Ms Harding declined an offer to mediate the dispute stating that she did not see how it would be possible to continue having a working relationship with the Claimant.  The Claimant was dismissed.

Her claim to the employment tribunal was that she was unfairly dismissed as well as being automatically unfairly dismissed for whistleblowing. The ordinary unfair dismissal claim was successful but the whistleblowing claim was not. The Claimant appealed to the EAT and was again unsuccessful.

It was claimed that at the time of sending the report the Claimant had blown the whistle and was protected by whistleblowing rules. However, the reason for her dismissal was not the concerns she raised in her report but rather her conduct and behaviour when interacting with Ms Harding.

Her comments towards Ms Harding were described as an “unacceptable personal attack”. It was also found that there had been similar incidents in the past where colleagues had expressed issues with the Claimant’s manner.

The EAT also considered the case of Jhuti v Royal Mail in order to make their decision. In that case, a line manager wished to punish the Claimant for making a protected disclosure. In order to hide this fact he fabricated a poor performance review. A more senior manager took the decision to dismiss the Claimant based on the review. Ordinarily, the only motivations that matter are those of the decision maker. However, the court held in Jhuti that when these motivations were based on a fiction it is open to the court to look behind this and judge the case based on the real reason for dismissal.

The Jhuti case was considered closely but the EAT found that ultimately it did not apply to the Claimant’s situation. It was conceded that given Ms Harding’s senior role she was in a position to influence the dismissal of Miss Kong. Additionally, while Ms Harding had felt the comments questioned her professional integrity the EAT did not think this was the intention of the Claimant who was questioning her professional knowledge (albeit in an inappropriate way). The EAT considered this to be an “invention” but on a very small scale which essentially amounted to an exaggeration. It was certainly not analogous to the situation described in Jhuti. The EAT held that the principal reason for the Claimant’s dismissal was her conduct.

Employers must tread very carefully in situations like this. In a similar situation it would be easy for the reason for dismissal to tip into an automatic unfair dismissal for whistleblowing. It is permissible to dismiss for conduct surrounding the whistleblowing but not the whistleblowing itself but that is often a very thin dividing line, so it is advised that employers seek legal advice in these scenarios as well as having a strong whistleblowing policy in place.

If you have any questions on any of the issues mentioned in the above article, please contact Natalia Milne.

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