A dismissal can be automatically unfair where the main reason for the dismissal is related to protected disclosure made by a worker in circumstances where the worker reasonably believes that serious wrongdoing has occurred in the workplace – see section 43A of the Employment Rights Act 1996 (ERA)
Some guidance on a whistle-blower’s misconduct and dismissal has been given by the decision of the Court of Appeal in the case of Kong v Gulf International Bank where the Employer’s Head of Legal (HL) drafted a legal template and the Head of Audit (HA) had concerns over the draft to fall within whistle-blowing disclosure.
Following disagreements between (HL) and (HA) over the legal draft, (HL) felt that (HA) was casting doubt on her professional integrity resulting in (HL) complaining to her Employer with the consequences being that the Employer dismissed (HA) as her conduct amounted to an unacceptable personal attack on (HL) abilities, where (HA’s) interpersonal skills were questionable having displayed lack of emotional intelligence and insensitivity over her personal criticisms, refusing mediation and refusing to apologise. (HA) pursued various claims including a claim for unfair dismissal linked to whistleblowing disclosure.
The Employment Appeal Tribunal (EAT) agreed with the Employment Tribunal’s findings that the inappropriate manner (HA) had criticised (HL) over the legal template draft was separate from the whistle-blowing disclosure thus dismissal was fair.
(HA) then took the matter to the Court of Appeal arguing that an employee’s conduct in making a whistleblowing disclosure should only be considered separable where that conduct constitutes wholly unreasonable behaviour or serious misconduct.
The Court of Appeal disagreed with the above and emphasised that there is no need for behaviour objectively to reach a particular threshold of seriousness before it can be viewed as separable from the disclosure and prudent to look at what motivated the decision maker to dismiss with Lady Justice Simler emphasising at para 60 (see 2) “if a whistle-blower's conduct is blameless, or does not go beyond ordinary unreasonableness, it is less likely that it will be found to be the real reason for an employer's detrimental treatment of the whistle-blower. The detrimental treatment of an innocent whistle-blower will be a powerful basis for particularly close scrutiny of an argument that the real reason for adverse treatment was not the protected disclosure. It will "cry out" for an explanation from the employer….”.
The above decision supplies welcome relief to Employers in this complex area, but each case will turn on its own facts.
The article is for general information purposes only and should not be relied upon as authoritative however should you need any further assistance on the matter, please do not hesitate to call our advice-line team on 01455 852 028.
