Protect Statement on the Court of Appeal judgment on Kong vs Gulf International Bank out on 8 July 2022:
A worrying decision by the courts that means an employer can dismiss a whistleblower for the manner in which they raised concerns, rather than the whistleblowing, even if those concerns were raised in a reasonable way.
The Court of Appeal released its judgment on the case of Kong vs Gulf International Bank, ruling against Ms Kong, in which Protect had intervened on public policy grounds.
The Court ruled that a whistleblower raising concerns about serious wrongdoing in a reasonable way, can still be dismissed if the employer subjectively finds her behaviour objectionable and therefore separate from the protected disclosure. An employer may be able to dismiss a whistleblower for the behaviour and breakdown in relationship that follows whistleblowing, rather than the whistleblowing itself.
The Court said there are likely to be few cases where employers will be able to rely on upset or inherent criticism caused by whistleblowing as a separate and distinct reason. But Protect’s view is that this judgment will create uncertainty for whistleblowers, and make it easier to victimise and dismiss whistleblowers. The law needs to change to strengthen whistleblower protection.
Lord Borrie, supporting the passing of the Public Interest Disclosure Act , explained that “the law will stand by [whistleblowers] provided they raise the matter in a responsible and reasonable way”; this judgment means that this is not the case.
Protect CEO, Liz Gardiner said:
“This judgment is very disappointing. We fear this undermines protections for whistleblowers. Whistleblowing law (the Public Interest Disclosure Act 1998) was established to encourage responsible raising of concerns about risk and wrongdoing in the public interest and to protect those who speak up from retaliation. Here the Tribunal agreed that Ms Kong had been a responsible whistleblower, and agreed her dismissal was not justified, but still, she was denied whistleblowing protection and lost her automatic unfair dismissal case.
“It is often the case that whistleblowing will cause upset, and very frequently leads to a breakdown in relationships. But to allow an employer to dismiss because the relationship broke down and to say this can be entirely separated from the act of whistleblowing could send the wrong signal to unscrupulous employers.
“Employers should heed the Court’s ruling that there will be few cases where employers can rely on these distinctions”. Nevertheless, we need greater clarity in the law. The current test for whistleblower dismissal is too high a hurdle for whistleblowers to jump.
Ms Kong says “If an exemplary, blameless whistleblower cannot win a whistleblowing case like this, then who can? “
Background
Ms Kong, who was Head of Internal Audit, blew the whistle on the illegality of a new investment product that her employer Gulf International Bank was offering to investors. In doing so, she questioned the legal awareness of the Bank’s Head of Legal. This criticism led to a complaint, and ultimately her dismissal. Both the Employment Tribunal (ET) and the Employment Appeal Tribunal (EAT) agreed that she had been unfairly dismissed but found that the principal reason for the Ms Kong’s dismissal was not the fact that she blew the whistle, rather her behaviour and the consequent breakdown of the relationship between her and the Head of Legal was the main reason.
Third party intervention on a matter of public policy
Protect, the UK’s whistleblowing charity, intervened in this case as a third party because this is a case of importance to public policy. Our intervention sought clarity on whether you can separate out the whistleblowing from the behaviour of the whistleblower and the consequences. It is unlawful to dismiss a whistleblower if making a “protected disclosure” is the principal reason for their dismissal. However, employers can succeed if they can successfully argue there was another main reason why they dismissed the whistleblower.
Ms Kong’s behaviour was noted to have been very reasonable: The judge at the ET found that her disclosure was “conciliatory in tone and careful in the way [it was raised,] so as to avoid causing [those responsible] any embarrassment”. Despite this, the tribunal found that it wasn’t contrary to whistleblowing legislation to dismiss her for the manner in which she’d raised concerns.
The Court of Appeal said ‘Some things are necessarily inherent in the making of a protected disclosure and are unlikely to be properly viewed as distinct from it. The upset that a protected disclosure causes is one example because for all practical purposes it is a necessary part of blowing the whistle; inherent criticism is another … There are likely to be few cases where employers will be able to rely on [these sorts of distinctions]’.
ENDS
For further information, please contact Sybille Raphael on sybille@protect-advice.org.uk tel: 0203 117 2520 or Clare Dawson at BDBF LLP.
Notes to editors:
1 Protect is the UK’s whistleblowing charity. Our aim is to protect the public interest by helping workers to speak up to stop harm and wrongdoing. We support whistleblowers by providing free and confidential legal advice. We support employers to implement effective whistleblowing arrangements. We campaign for legal and policy reform to better protect whistleblowing. We want a world where no whistleblower goes unheard or unprotected.
2 Protect was represented in this case by James Laddie QC (Matrix) Andrew Smith (11KBW) and by BDBF LLP acting pro bono
3 Protect has intervened on many cases of public importance over the last 18 years such as Street v Derbyshire Unemployed Workers’ Centre [2005] ICR 97 (Court of Appeal); Fecitt & others v NHS Manchester [2012] ICR 372 (Court of Appeal);
Bates van Winkelhof v Clyde & Co LLP & another [2014] ICR 730 (UK Supreme Court);
Day v Lewisham & Greenwich NHS Trust & another [2017] ICR 917 (Court of Appeal);
Chesterton Global Ltd & another v Nurmohamed [2018] ICR 731 (Court of Appeal);
Gilham v Ministry of Justice [2019] ICR 1655 (Court of Appeal and UK Supreme Court); and
Timis & another v Osipov [2019] ICR 655 (Court of Appeal).
4 The ET hearing and the EAT hearing of this case can be found here and here.
You can watch the full hearing at the Court of Appeal below:
Part 1: http://bit.ly/3lMqe9y
Part 2: http://bit.ly/3lOepjb
Our intervention can be viewed from 1:31:25 – 2:12:30 in Part 1
5 The Court of Appeal’s judgment can be found here.
Protect Statement on the Court of Appeal judgment on Kong vs Gulf International Bank out today 8 July 2022:
A worrying decision by the courts that means an employer can dismiss a whistleblower for the manner in which they raised concerns, rather than the whistleblowing, even if those concerns were raised in a reasonable way.
Today the Court of Appeal released its judgment on the case of Kong vs Gulf International Bank, ruling against Ms Kong, in which Protect had intervened on public policy grounds.
The Court ruled that a whistleblower raising concerns about serious wrongdoing in a reasonable way, can still be dismissed if the employer subjectively finds her behaviour objectionable and therefore separate from the protected disclosure. An employer may be able to dismiss a whistleblower for the behaviour and breakdown in relationship that follows whistleblowing, rather than the whistleblowing itself.
The Court said there are likely to be few cases where employers will be able to rely on upset or inherent criticism caused by whistleblowing as a separate and distinct reason. But Protect’s view is that this judgment will create uncertainty for whistleblowers, and make it easier to victimise and dismiss whistleblowers. The law needs to change to strengthen whistleblower protection.
Lord Borrie, supporting the passing of the Public Interest Disclosure Act , explained that “the law will stand by [whistleblowers] provided they raise the matter in a responsible and reasonable way”; this judgment means that this is not the case.
Protect CEO, Liz Gardiner said:
“This judgment is very disappointing. We fear this undermines protections for whistleblowers. Whistleblowing law (the Public Interest Disclosure Act 1998) was established to encourage responsible raising of concerns about risk and wrongdoing in the public interest and to protect those who speak up from retaliation. Here the Tribunal agreed that Ms Kong had been a responsible whistleblower, and agreed her dismissal was not justified, but still, she was denied whistleblowing protection and lost her automatic unfair dismissal case.
“It is often the case that whistleblowing will cause upset, and very frequently leads to a breakdown in relationships. But to allow an employer to dismiss because the relationship broke down and to say this can be entirely separated from the act of whistleblowing could send the wrong signal to unscrupulous employers.
“Employers should heed the Court’s ruling that there will be few cases where employers can rely on these distinctions”. Nevertheless, we need greater clarity in the law. The current test for whistleblower dismissal is too high a hurdle for whistleblowers to jump.
Ms Kong says “If an exemplary, blameless whistleblower cannot win a whistleblowing case like this, then who can? “
Background
Ms Kong, who was Head of Internal Audit, blew the whistle on the illegality of a new investment product that her employer Gulf International Bank was offering to investors. In doing so, she questioned the legal awareness of the Bank’s Head of Legal. This criticism led to a complaint, and ultimately her dismissal. Both the Employment Tribunal (ET) and the Employment Appeal Tribunal (EAT) agreed that she had been unfairly dismissed but found that the principal reason for the Ms Kong’s dismissal was not the fact that she blew the whistle, rather her behaviour and the consequent breakdown of the relationship between her and the Head of Legal was the main reason.
Third party intervention on a matter of public policy
Protect, the UK’s whistleblowing charity, intervened in this case as a third party because this is a case of importance to public policy. Our intervention sought clarity on whether you can separate out the whistleblowing from the behaviour of the whistleblower and the consequences. It is unlawful to dismiss a whistleblower if making a “protected disclosure” is the principal reason for their dismissal. However, employers can succeed if they can successfully argue there was another main reason why they dismissed the whistleblower.
Ms Kong’s behaviour was noted to have been very reasonable: The judge at the ET found that her disclosure was “conciliatory in tone and careful in the way [it was raised,] so as to avoid causing [those responsible] any embarrassment”. Despite this, the tribunal found that it wasn’t contrary to whistleblowing legislation to dismiss her for the manner in which she’d raised concerns.
The Court of Appeal said ‘Some things are necessarily inherent in the making of a protected disclosure and are unlikely to be properly viewed as distinct from it. The upset that a protected disclosure causes is one example because for all practical purposes it is a necessary part of blowing the whistle; inherent criticism is another … There are likely to be few cases where employers will be able to rely on [these sorts of distinctions]’.
ENDS
For further information, please contact Sybille Raphael on sybille@protect-advice.org.uk tel: 0203 117 2520 or Clare Dawson at BDBF LLP.
Notes to editors:
1 Protect is the UK’s whistleblowing charity. Our aim is to protect the public interest by helping workers to speak up to stop harm and wrongdoing. We support whistleblowers by providing free and confidential legal advice. We support employers to implement effective whistleblowing arrangements. We campaign for legal and policy reform to better protect whistleblowing. We want a world where no whistleblower goes unheard or unprotected.
2 Protect was represented in this case by James Laddie QC (Matrix) Andrew Smith (11KBW) and by BDBF LLP acting pro bono
3 Protect has intervened on many cases of public importance over the last 18 years such as Street v Derbyshire Unemployed Workers’ Centre [2005] ICR 97 (Court of Appeal); Fecitt & others v NHS Manchester [2012] ICR 372 (Court of Appeal);
Bates van Winkelhof v Clyde & Co LLP & another [2014] ICR 730 (UK Supreme Court);
Day v Lewisham & Greenwich NHS Trust & another [2017] ICR 917 (Court of Appeal);
Chesterton Global Ltd & another v Nurmohamed [2018] ICR 731 (Court of Appeal);
Gilham v Ministry of Justice [2019] ICR 1655 (Court of Appeal and UK Supreme Court); and
Timis & another v Osipov [2019] ICR 655 (Court of Appeal).
4 The ET hearing and the EAT hearing of this case can be found here and here.
You can watch the full hearing at the Court of Appeal below:
Part 1: http://bit.ly/3lMqe9y
Part 2: http://bit.ly/3lOepjb
Our intervention can be viewed from 1:31:25 – 2:12:30 in Part 1
5 The Court of Appeal’s judgment can be found here.