Court of Appeal to determine whether you can dismiss a whistleblower for the way they behave rather than the fact that they’ve blown the whistle [CA-2021-001961 Kong v Gulf International Bank (UK) Ltd]
This week on Thursday 26 May 2022 the Court of Appeal will hear a test case on whistleblowing law, in which whistleblowing charity Protect are intervening, to decide to decide when the conduct of the whistleblower can be separated out from the act of whistleblowing. The case will set an important precedent for those who are currently at risk of being dismissed for a reason related to their whistleblowing, such as a breakdown of the employment relationship, which may be seen as separate from the act of whistleblowing.
Ms Kong, who was Head of Internal Audit, blew the whistle on the illegality of a new investment product that her employer Gulf Bank was offering to investors. In doing so, she implicitly questioned the competence 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) have 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, are intervening as a third party because this is a case of importance to public policy. Our intervention seeks 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.
In this case, if there had been no whistleblowing there would have been no breakdown of relationship. 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”.
NOTES FOR EDITORS
1 The Court of Appeal will be live streamed following this link.
2 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.
3 Protect is being represented by James Laddie QC (Matrix) Andrew Smith (11KBW) and by BDBF LLP who are acting pro bono
4 Protect has intervened on many cases of public importance over the last 18 years such as Street v Derbyshire Unemployed Workers’ Centre  ICR 97 (Court of Appeal); Fecitt & others v NHS Manchester  ICR 372 (Court of Appeal);
Bates van Winkelhof v Clyde & Co LLP & another  ICR 730 (UK Supreme Court);
Day v Lewisham & Greenwich NHS Trust & another  ICR 917 (Court of Appeal);
Chesterton Global Ltd & another v Nurmohamed  ICR 731 (Court of Appeal);
Gilham v Ministry of Justice  ICR 1655 (Court of Appeal and UK Supreme Court); and
Timis & another v Osipov  ICR 655 (Court of Appeal).