When raising a protected disclosure, otherwise known as whistle-blowing, workers are protected from suffering detriments and from being dismissed as a result of speaking up.
Sometimes, however, a situation might arise where an employee is dismissed anyway and for reasons which are not necessarily linked directly to making the disclosure.
In his latest article, Employment Solicitor Chris Dobbs discusses this…
What is whistle-blowing in employment law?
Whistle-blowing is very closely defined in law. It refers to a disclosure made, often in a certain way, about a genuine belief that one of six things has happened, is happening, or is likely to happen. These are:
- A criminal offence
- A failure to comply with a legal obligation
- A miscarriage of justice
- An endangerment to health and safety
- Environmental damage
- The covering-up of one or more of the above
Are whistle-blowers protected by law?
In disclosing this belief, a worker is protected under the Employment Rights Act from being poorly treated up to and including being dismissed where the reason for the treatment and/or dismissal can be said to be the disclosure itself.
Kong v Gulf International Bank (UK) Limited
In the long-running case of Kong v Gulf International Bank (UK) Limited, Ms Kong made several disclosures which were held to amount to whistle-blowing. One in particular related to the conduct of the Respondent’s head of legal, Ms Harding, about the quality of a legal document.
Ms Harding took offence to this and felt that Ms Kong had been questioning her professional integrity which led to a dispute between the two.
Ms Harding left the room, slamming Ms Kong’s door behind her and went on to make comments to colleagues about what had happened.
What was the claim and what did the tribunal find?
Ms Kong was subsequently dismissed and brought claims of whistle-blowing detriment and automatically unfair dismissal.
At an employment tribunal, it was found that her unfair dismissal claim was out of time and that in any case the reason for her dismissal was not the protected disclosure, but instead that she was dismissed for her conduct in challenging Ms Harding’s professional abilities.
Ms Kong appealed.
What did the EAT conclude?
At an Employment Appeal Tribunal hearing in July 2021, Ms Kong’s appeal was dismissed.
The EAT concluded that the original tribunal had been correct in drawing a distinction between the disclosure and the questioning of Ms Harding’s competence.
The reason for dismissal was the latter and therefore it was not an unlawful dismissal.
What happened at the Court of Appeal?
Ms Kong appealed again and, in a judgment last month, the Court of Appeal dismissed her appeal yet again.
It was not unlawful, Lord Justice Underhill considered, for an employer to take action around matters of conduct which were not directly connected to the whistle-blowing simply because the employee in question was a whistle-blower.
He did not think the issue before the Court of Appeal as being one of whistle-blower protection at all but rather to decide what was or was not the principle reason for dismissal. In this case, it was Ms Kong’s conduct.
Should whistle-blowers get more protection?
The judgment has received significant comment from both sides of the debate around the level of protection which should be afforded to whistle-blowers.
For some, this ruling is an attack on those protections; giving employers the ability to disguise a dismissal for having made a protected disclosure as something unrelated.
Should whistle-blowers still receive disciplinary action?
On the other hand, other commentators see the judgment as making sense and reinforcing the law as it currently stands.
That is, that the protections are in place to prevent retaliatory treatment against someone who blows the whistle, not to give them the ability to avoid disciplinary action for their conduct.
A specialist Employment Solicitor’s view
Chris Dobbs, Employment Solicitor at Frettens, said: “I am inclined toward the second view in this case.
Had the decision gone in Ms Kong’s favour, there is a risk that it would create a situation where employers had to tolerate any kind of misconduct even tangentially connected to a potential disclosure.
The Court of Appeal was correct in its assertion that the correct way to approach a dismissal is to identify the sole or principle cause before then deciding whether that cause was itself fair.”
Related Articles
- Whistleblowing: Defining protected disclosures
- Can whistle-blowers take confidential documents for legal advice?
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