Employers will welcome the decision of the Court of Appeal upholding the EAT's decision in Kong v Gulf International Bank (summarised here). Subject to any further appeal to the Supreme Court, the ruling confirms that an employer may be able to successfully defend a whistleblowing dismissal claim if it can show that its genuine reason for dismissal was conduct on the part of the whistleblower which was not a necessary feature of the disclosure itself, even if the conduct was not objectively serious or unreasonable. However, the reason will need to be some feature over and above the criticism and upset inherent in a disclosure and tribunals will scrutinise such arguments particularly carefully where the whistleblower has not acted unreasonably. And of course the dismissal may still be ordinarily unfair.

Dismissal is automatically unfair where the principal reason for the dismissal is a protected disclosure. Where employers take exception to the way in which a claimant makes their disclosure, or the surrounding conversations or conduct, the key issue becomes whether this can properly be separated, as the reason for dismissal, from the disclosure itself. If it can, the dismissal will at most be ordinarily unfair and claims subject to a cap on compensation and the two year service requirement; if not, uncapped compensation for automatically unfair dismissal can be awarded to claimants from day one of their employment.

In this case the claimant, who was employed as Head of...

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