The Court of Appeal have recently looked at an interesting Whistleblowing case involving claims of both unfair dismissal & detriment.  

Chris MacNaughton, our Senior Lawyer and Head of IR Services has reviewed this case, and it proves as a great reminder for HR professionals that whistle-blowers who behave badly aren’t untouchable.  

Employees and workers are protected from being subjected to a detriment because they have made a protected disclosure. The Court of Appeal has recently looked at a case which involved both unfair dismissal and detriment claims, in Kong v Gulf International Bank. The issue in this case is whether the protected disclosure had a material influence on the employee’s treatment.  

The Detail of the Case 

The employee thought that the standard compliance template was being used inappropriately. Whilst it was agreed that this was a protected disclosure, the Head of Legal did not share the employee’s view about the document’s use, at which point the employee challenged the Head of Legal’s competence and legal awareness.  

The Head of Legal raised a complaint to HR and the CEO about the employee’s conduct and made it clear that she could no longer work with the employee. Following a disciplinary hearing, the employee was dismissed by HR, the CEO, and her manager because of her conduct.  

The employee brought claims for ordinary unfair dismissal, automatic unfair dismissal, and detriment for making a protected disclosure and wrongful dismissal.  

The Employment Tribunals Decision 

The Tribunal upheld her claim for ordinary unfair dismissal, they commented that her claim for detriment would have succeeded had it not been out of time. However, the employee’s claim for automatic unfair dismissal failed. The Tribunal’s reasoning was that although the protected disclosure was a relevant factor as it had led to the complaint by the Head of Legal, it was not a material factor in the decision to dismiss. It was the employee’s conduct specifically that led to the dismissal.  

The employee appealed to the Employment Appeal Tribunal (EAT) and then to the Court of Appeal. The appeal was unsuccessful.  

What can HR Learn from this Case? 

This case is useful to employers as whilst it does not undermine the protections afforded to employees, those employees who raise protected disclosures must conduct themselves in an appropriate manner if they are to avoid potential sanctions up to and including dismissal.  

“It is quite common that employees raise a mixed bag of potential disclosures, personal criticisms and behaviours that employers have often feared to address in the protections available.

What this case demonstrates is that employers still have the right to enforce conduct standards even in situations where the employee has made a protected disclosure. The key when making any decision to initiate disciplinary action against such employees will be to ensure independence at all stages to distance the disclosure from the considerations of the disciplinary chair regarding the employee’s consduct.

These are also always cases that turn on their own facts, so advice will be key.”

Chris MacNaughton, Senior Lawyer & Head of IR Services, Vista  

These cases can turn on their particular facts, so if you would like to discuss any such cases, please do not hesitate to contact the Vista team.  

In this months’ employment law update we review the latest from the employment tribunal, and the learnings HR might draw from them. Whistleblowing, Age Discrimination, Unfair Dismissal,  Discrimination related to Covid-19 Absence are all among the topics we cover in September. To learn more, you can subscribe to our monthly newsletter here.