Kong v Gulf International Bank
Unfair Dismissal
Ms Kong (K) was employed as Head of Financial Audit of the Gulf International Bank (UK). She raised certain concerns which were classed as “protected disclosures”, in particular that a legal agreement relating to a new investment product being offered to investors was not suitable. This led to a disagreement between K and Head of Legal, who had drafted the agreement. K questioned whether the Head of Legal was aware of the issue. A complaint was raised about K’s conduct and behaviour towards her colleagues, and a decision was made to terminate her contract. K issued tribunal proceedings alleging “unlawful detriment” and “automatic unfair dismissal” for making protected disclosures.
Employment Tribunal Decision
The Employment Tribunal (ET) found that K’s unlawful detriment claim would have succeeded if she had made her claim in time. They noted that the action/reaction of the Head of Legal was influenced by K’s disclosures. They cited his aggressive language, tone of voice, slamming her door when leaving and agitated stance towards her when he visited K’s office, and claiming that her professional integrity had been called into question. But, the claim for unfair dismissal was rejected. ET found that the principal reason for dismissal was the way in which she had conducted herself towards her colleagues.
K appealed to the EAT against her failed unfair dismissal case.
Was the ET entitled to treat K’s dismissal due to her conduct as distinct from her protected disclosures? They said that although the protected disclosure was connected with K’s conduct and criticism towards her colleagues, the EAT distinguished them and said K’s criticisms were not a necessary part of the disclosure. Taking issue with those critical comments was not the same as taking issue with that protected disclosure.
The EAT also considered whether the reason for dismissal can be a protected disclosure if the decision makers themselves were not motivated by the disclosures but were manipulated by someone else? It will be rare and will only apply where (a) a person tried to bring about a dismissal, (b) the decision maker was “peculiarly dependent” on that person as the source of the information and (c) the role or position of that person meant that it would be appropriate to attribute their motivation to the employer.
Here, the ET concluded that the Head of Legal was wrong to perceive K’s comments as a personal attack. It was an over-reaction but not a manipulation. Further, The Head of Legal had referred the matter to HR Support rather than taking up the matter personally – thus not actively seeking K’s dismissal. On the dismissal, they found that the motivation of the dismissing managers was their perception of K’s conduct, not the protected disclosure.
On this basis, the EAT dismissed K’s appeal.
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