Ms L Kong who was Head of Financial Audit, made a number of protected whistleblowing disclosures over a new investment product her employer Gulf International Bank was offering to investors.
She was concerned about the regulatory compliance of the investment product, which she detailed in a draft audit report sent to the Head of Legal at her company.
Her concerns (which the Bank accepted constituted protected disclosures) led to a confrontation with the Head of Legal who felt that Ms Kong was questioning her competence. This led to a complaint, and ultimately to Ms Kong’s dismissal from the company for the alleged breakdown of relationship.
The Employment Tribunal found that during the confrontation, the Head of Legal unlawfully subjected Ms Kong to a detriment for having made protected disclosures. The Tribunal also upheld Ms Kong’s ordinary unfair dismissal claim and concluded that she did not at any point cause or contribute to her dismissal.
However, the Tribunal rejected Ms Kong’s claim for automatic unfair whistleblowing dismissal, and held that the principal reason for her dismissal was not her whistleblowing, but instead her behaviour (her perceived criticism of the Head of Legal) and the alleged breakdown of the relationship with the Head of Legal.
The Employment Appeal Tribunal (EAT) upheld the decision that the dismissal was not for whistleblowing and separated Ms Kong’s behaviour and the breakdown of relationship from the whistleblowing, finding that although both of these were connected to, and indeed caused by, the protected disclosures, they were separate from the protected disclosures.
The Kong case illustrates how the issue of separability can lead to the demise of substantially strong whistleblowing claims: although the behaviour and relationship breakdown clearly originated from the protected disclosures, they were deemed separable to justify a fair dismissal.
Ms Kong is seeking permission to appeal to the Court of Appeal and Protect will be following the case and will seek permission to intervene as we have done in cases which include Gilham, Day and Osipov.