Protect volunteer Queenie Sit looks at the case of Kong v Gulf International Bank (UK) Ltd to be decided by the Court of Appeal this month. The judgment will have a huge impact on workers’ ability to speak up.
The Case of Kong v Gulf International Bank (UK) Ltd
In the case of Kong v Gulf International Bank (UK) Ltd, the application of the separability principle by the Employment Tribunal (“ET”) and Employment Appeal Tribunal (“EAT”) sets a dangerous precedent.
In Ms Kong’s case, it was found that the reason for dismissal was not whistleblowing, but instead Ms Kong’s behaviour (her perceived criticism of the Head of Legal) and the alleged breakdown of relationship with the Head of Legal. This is despite the fact Ms Kong’s behaviour was noted by the ET as being very reasonable.
In effect, the ET ruled that although these reasons for her dismissal were connected to, and indeed caused by, the protected disclosures, they were separate from the protected disclosures. In deciding this, it seems that the tribunals have given a green light to employers to dismiss a whistleblower for something that is so inextricably linked to their whistleblowing without facing any liability for doing so.
The Separability Principle
The separability issue is at the centre of this case. It allows an employer, in certain circumstances, to establish that a worker has been subjected to a detriment or dismissed because of something which, although related to a PD, is regarded as genuinely and properly separable from the making of it. This principle, in such cases, defends the employer from being charged with unfairly dismissing a whistleblower for having raised a PD.
Protect’s position is that more detailed guidance and clarity is needed on the principles to be applied by ET’s when considering employers’ defences to whistleblowing claims which rely, either in whole or in part, on a separability argument.
As such, Protect’s submissions to the court raise several issues. These include the purpose of whistleblowing legislation and case law, whistleblowing in practice, the development and application of the separability principles, and the structured approach that should be taken in whistleblowing claims involving a separability defence that concerns conduct.
Protective purpose of whistleblowing legislation
When the bill that preceded the Public Interest Disclosure Act (PIDA) – the law that protects whistleblowers – was introduced, Lord Borrie elaborated on the core aim of whistleblowing legislation
[the] purpose of this Bill is to give a clear signal to people in places of work up and down the country that if they suspect wrongdoing, the law will stand by them provided they raise the matter in a responsible and reasonable way.1
Tribunals should strive to avoid outcomes which risk worsening the inconsistency, complexity, and/or difficult for whistleblowers when they enforce their rights under PIDA. In the words of Wilke J in EAT, “it is appropriate to construe [the law] so far as one properly can to provide protection rather than deny it”.2
Protect’s view is that a wide application of the separability principle to issues which are clearly inextricably bound to the whistleblowing is at odds with Parliament’s intention to “[confer] a high level of protection on whistleblowers”.3
Whistleblowing in practice
Allowing employers to hide behind the separability principle too easily would have a very concerning effect given how whistleblowing works in practice.
By its nature, whistleblowing involves an individual raising concerns about wrongdoing. Wrongdoing is committed by individuals, and in the employment context the perpetrators of the alleged wrongdoing will commonly be colleagues working in the same workplace. Receiving bad news is never easy. The natural reaction is to be defensive. This is precisely why an important element of whistleblowing law is to protect whistleblowers from retaliatory treatment.
Indeed, over a five-year period (2017 to 2021), over 65% of individuals contacting Protect for whistleblowing advicereported negative consequences from raising their concerns, including victimisation from managers, bullying from co-workers, suspension, dismissal, or being forced to resign.4
Whistleblowers are often ignored when they first raise their concerns, or do not receive any meaningful response. As such they may be required to raise their concerns a second time. Consequently, the process of making a protected disclosure is not a singular moment in time: it is often a process of back and forth between the employer and whistleblower. To separate subsequent interactions which are derived from the disclosure, from the disclosure itself, inappropriately narrows the common experience and process of whistleblowing beyond what we often see in practice.
Development and application of the separability principle
There has been little analysis to date of how the separability principle should operate in whistleblowing cases.
However, the courts have held that this principle ought to be narrowly construed and applied in cases where the retaliatory conduct is in response to trade union or health and safety activities.5 Protect believes that there is no coherent or principled reason why workers should enjoy less protection when they blow the whistle. Whistleblowing, is by nature an act done in the public interest.
Structured approach to handle whistleblowing claims involving a separability defence concerning the claimant’s conduct
Separability used to be seen as a binary question: is the conduct separable from the making of a protected disclosure or not?
But in practice, this is a difficult question to unpick. As an intervenor, Protect is suggesting a structured approach. In cases where the conduct of the whistleblower is not obviously separable from the making of the protected disclosure by a readily identified reason, we think the Courts should ask themselves whether the conduct of the whistleblower or upset caused by the whistleblowing is a feature or direct consequence of making the PD.
Implications for whistleblowers
This 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.
It is not easy sticking your head above the parapet to raise concerns. Whistleblowing is a difficult and isolating experience, with tensions often on both sides of the process. The current judgment in Kong puts an unnecessary burden on whistleblowers and goes against the protective principle of PIDA by arguing that “it’s not what you did, it’s the way that you did it”.
PIDA is already a complex piece of legislation; with workers having to satisfy a number of difficult legal tests in order to qualify for legal protection. Whistleblowers should not have to ensure that they are raising their concerns in a way that the employer will deem to be reasonable and/or to not upset anyone in the process. This is a near impossible feat, particularly when a senior member of the team is being criticised which will almost inevitably lead to a breakdown in relationships. Moreover, this would go directly against the purpose of the law, which is to encourage rather than deter whistleblowing.
The full Court of Appeal hearing of Kong v Gulf International Bank (UK) Ltd, can be accessed in two parts here.
- HL Deb, 11 May 1998, vol. 589 cc. 889)
- Croke v Hydro Aluminium Worcester Ltd  ICR 1303
- Underhill LJ in Beatt v Croydon Health Services NHS Trust  ICR 1240
- This figure was taken from our recently published Preventing Whistleblower Victimisation Guide.
- Martin v Devonshires Solicitors  ICR 352