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L Kong v Gulf International Bank (UK) Ltd EA-2020-000357-JOJ

  • Protected Disclosure
  • Automatic Unfair Dismissal

An employee claiming automatic dismissal on the grounds of making a protected disclosure under section 103A of the Employment Rights Act must show that the dismissal was caused by the protected disclosure. There must be a causal link between the detriment and the protected disclosure.

This was the issue before the Employment Tribunal and the Employment Appeal Tribunal in this case. K was employed by GIB Ltd, as Head of Financial Audit. She made several protected disclosures in relation to a new investment product that the bank was offering to investors. Among other things, she was concerned that the industry-standard ‘Master Risk Participation Agreement’ (MRPA) template that the bank was proposing to use to govern its relations with investors in the new product was unsuitable. She included her concerns in a draft audit report, which she emailed to the Head of Legal, among others. This led to a confrontation, between K and the Head of Legal during which K questioned the Head of Legal’ competence. The Head of Legal complained to the Head of HR and the CEO. A collective decision was taken to dismiss K for questioning the competence of the Head of Legal.

K brought claims of unlawful detriment and automatic unfair dismissal for having made protected disclosures.
The employment tribunal found that K’s detriment claim, based on the Head of Legal’ conduct towards her, would have succeeded but was out of time. It cited the behavior of the Head of Legal in confronting K in an agitated state and complaining to others about the charges made against her by K, were significantly influenced by K’s protected disclosures. It also found that the complaints were a material part of the reason why K was ultimately dismissed. However, it went on to reject K’s automatic unfair dismissal claim. The Tribunal cited in support of the Supreme Court’s decision in Royal Mail Ltd v Jhuti [2019] UKSC 55, which held that if a person in the hierarchy of responsibility above the employee determines that the employee should be dismissed for having made a protected disclosure but hides that reason behind an invented reason which the decision-maker adopts, then the court’s duty is to penetrate through the invention. The tribunal concluded that it had to focus on the reason in the mind of management in the decision to dismiss K and concluded that the principal reason for dismissal was K’s conduct in questioning the competence of the Head of Legal. K appealed against the rejection of her whistle-blowing dismissal claim.
The EAT dismissed the appeal. On the ‘attribution of motivation’ issue, it held that the tribunal had come to the right conclusion. It also had to consider whether the tribunal was entitled to treat the conduct reason for dismissal as separable from K’s protected disclosures. It observed that K’s concern that the use of the MPRA risked putting GIB Ltd in breach of regulatory requirements was potentially separable from the reason for dismissal. The EAT held that while the Head of Legal’ conduct towards K was therefore materially influenced by the protected disclosure (such that the detriment claim would have succeeded had it been in time), it did not follow that anyone who took issue with how K expressed herself on the subject of the Head of Legal’ competence should be treated as also taking issue with the protected disclosure. The tribunal made a clear finding that the motivation of the three managers who took the decision to dismiss was different. They were not motivated by the protected disclosure but by the view that they took of K’s conduct towards the Head of Legal, which they considered to be an unacceptable personal attack on the Head of Legal’ abilities, and reflective of a wider problem with K’s interpersonal skills.