A Supreme Court decision in 2019 established the manipulation principle in cases of dismissal as a result of making protected disclosures. We explore how the principle has developed in several subsequent cases, most recently in relation to a whistleblowing detriment claim and what employers can take from these decisions.
The Supreme Court held that, where a senior person hides the real reason for seeking to dismiss an employee (the fact the employee had made a protected disclosure) and gives the decision-maker a false one (in that case, poor performance), the true reason for the dismissal is the concealed one. For the purposes of an unfair dismissal claim, the employer can be liable for an automatically unfair dismissal based on that concealed reason, not the invented explanation, even where the decision-maker was not aware of the protected disclosure.
In Kong v. Gulf International Bank (UK) Ltd (the Bank), Ms Kong worked as the head of financial audits for the Bank. Ms Kong made protected disclosures to the Bank's head of legal relating to an investment product that the Bank was offering. Ms Kong followed this up with an email reiterating her concerns. In response, the head of legal complained that Ms Kong had acted inappropriately towards her by questioning her professional abilities and indicated she could no longer work with the claimant. The Bank dismissed Ms...
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