In Kong v. Gulf International Bank (UK) Ltd,the Court of Appeal (CA) has upheld an Employment Appeal Tribunal (EAT) decision that it is possible to separate conduct related to a protected disclosure from the making of the protected disclosure in automatic unfair dismissal claims. This case serves as a reminder that a whistleblower’s dismissal is not automatically unfair when the decision-makers’ view of the worker’s conduct when making the protected disclosure can be separated from the actual disclosure itself.
Background
Ms Kong worked as Head of Financial Audit for Gulf International Bank (GIB) and made several protected disclosures relating to an investment product that GIB was offering. The protected disclosures were made to GIB’s Head of Legal, Ms Harding, who challenged the basis for those disclosures. Following an exchange of emails between Ms Kong and Ms Harding, Ms Harding complained that Ms Kong had acted inappropriately towards her by questioning her professional abilities and stated that she could no longer work with Ms Kong.
Ms Harding discussed the incident with the Head of HR and the CEO of GIB and it was decided by the Group Chief Auditor that Ms Kong should be dismissed, due to her behaviour and manner towards her colleagues. In response, Ms Kong brought various claims, including automatic unfair dismissal based on her protected disclosures.
Decision of the Employment Tribunal
The Employment Tribunal (ET) found against Ms Kong, finding that the dismissal...
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