In Kong v Gulf International Bank (UK) Ltd [2022] EWCA Civ 941, the Court of Appeal considered whether the dismissal of a whistleblower was automatically unfair.
Ms Kong was employed as the Head of Financial Audit at Gulf International Bank (the Bank). She raised concerns with the Head of Legal, Ms Harding, about the suitability of a legal agreement (concerns which were accepted as amounting to protected disclosures for the purposes of whistleblowing legislation). Ms Kong also questioned Ms Harding’s legal knowledge which upset Ms Harding, who felt her professional integrity was being called into question. The Bank dismissed Ms Kong due to her conduct which it asserted had resulted in colleagues not wanting to work with her. Ms Kong brought a claim for automatic unfair dismissal for having made protected disclosures (i.e., a whistleblowing claim).
The Court of Appeal held that there can in principle be a distinction between the protected disclosure of information and the conduct associated with the making of that disclosure. The reasons behind the employer’s decision to dismiss must be evaluated carefully to establish whether they can be fairly and sensibly separated from the protected disclosure. There is no objective standard for making such an assessment; it is a question of fact. In this case, the court found that what motivated the employer’s decision to dismiss was not Ms Kong’s disclosure but the inappropriate...
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