Ms Kong was GIB’s Head of Financial Audit and she blew the whistle about certain compliance matters to GIB’s Head of Legal, Ms Harding. In doing so, she questioned Ms Harding’s legal awareness, but not her integrity. Ms Harding complained to GIB that Ms Kong had criticised her professional integrity and three different employees decided to dismiss Ms Kong without following any proper process. The rationale given in Ms Kong’s dismissal letter was that her behaviour, manner and approach with colleagues had resulted in them not wanting to work with her. It was also said that Ms Kong had questioned Ms Harding’s integrity.
Ms Kong alleged that the reason or principal reason for her dismissal was her protected disclosure and that her dismissal was automatically unfair as a result.
The Employment Tribunal dismissed Ms Kong’s automatic unfair dismissal claim. It held that whilst Ms Kong had not done anything to justify her dismissal, when reaching the decision to dismiss the three decision-makers had in mind Ms Kong’s unreasonable conduct. They genuinely believed that she had (in the course of making protected disclosures) questioned Ms Harding’s awareness/integrity. It was this, which was separate from the disclosures themselves, which was the principal reason for Ms Kong’s dismissal. This being the case, her unfair dismissal claim failed.
Ms Kong’s appeal to the Employment Appeal Tribunal was dismissed and she appealed further to the Court of Appeal.
Court of Appeal
The Court of Appeal rejected the appeal. They found that the Tribunal had, quite rightly, focussed on what the decision makers genuinely believed. The Tribunal’s findings that Ms Kong had not questioned Ms Harding’s integrity or done anything to warrant her dismissal were not of direct relevance. The fact that Ms Kong’s protected disclosures could be separated from the manner of disclosure was key. Ms Kong did not need to question Ms Harding’s legal awareness when making her protected disclosures. However, she had done so and it was this separate conduct which the decision-makers had considered unreasonable.
This case was closely watched by many concerned parties, including Protect, a charity which works to protect whistle-blowers, and which formally intervened in this case. There were fears that in a case as finely balanced as this, any finding in GIB’s favour would give unscrupulous employers the green light to dismiss whistle-blowers by essentially arguing that it wasn’t what was said, but the way it was said that was the problem.
The extent to which this will be the case is perhaps something that only time will tell. However, it is worth remembering that GIB only succeeded because of the particular facts of this case (which included historic concerns about Ms Kong’s manner when dealing with colleagues). There has been no change in the law and the Court of Appeal’s judgment should not be seen as “opening any general breach in whistle-blower protection.” There will still be relatively few instances where the way a disclosure is made can be properly separated from the disclosure itself. Where whistle-blowers are concerned it is still very much a case of dismiss in haste, repent at leisure.