The Court of Appeal in the recent decision of Kong v Gulf International Bank (UK) Ltd has upheld a decision that a whistleblower who was dismissed after she made a “protected disclosure” was not automatically unfairly dismissed. This was on the basis that the reason for her dismissal, being her conduct in the way the disclosure was made, was separable and distinct from the disclosure itself.
Whistleblowing protection
As a reminder, workers in the UK are protected from being subjected to detriment by their employer on the ground that they have made a “protected disclosure”. What constitutes a “protected disclosure” can then broadly be defined as any disclosure of information which in the reasonable belief of the person making it, is made in the public interest and tends to show one or more of types of wrongdoing prescribed in the Employment Rights Act (“ERA”). These types of wrongdoing then include, for example, criminal offences, breaches of legal obligations and danger to the health and safety of any individual. To be “protected”, the disclosure must also be made by the worker to a person prescribed in the ERA, and this includes their employer.
Most commonly, we see such disclosures being included in grievances raised by a worker with their employer. Where this does occur, employers need to be mindful not to subject the worker to any detriment because of the disclosure.
What is actually considered a detriment is then quite broad and can cover a range of different things,...
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