Can an employer dismiss an employee for reasons of misconduct that relate to a protected disclosure?
Yes, the Court of Appeal held in Kong v Gulf International Bank, upholding both the Employment Tribunal and Employment Appeal Tribunal’s decisions.
Facts
Ms Ling Kong was employed by the Gulf International Bank as Head of Financial Audit, responsible for carrying out audits of the Bank’s business activities. Jenny Harding was the Head of Legal for the Bank.
In September 2018, Ms Kong became concerned that a financial compliance template was not fit for purpose and flagged this concern with Ms Harding and senior management. Ms Harding did not concur with these concerns, and when Ms Kong asked in an email to Ms Harding on 22 October 2018 if there was any particular reason that no formal management responses had been received from the legal department, Ms Harding reacted by going to Ms Kong’s office, without knocking or arranging a prior appointment.
In the unscheduled meeting in Ms Kong’s office, the financial compliance template was once again discussed. Ms Kong felt that the alleged mistakes in the template were something that Ms Harding should have known and questioned her professional awareness. This caused Ms Harding to leave Ms Kong’s office upset.
This meeting was followed up by emails on 23 October 2018, in which Ms Kong again questioned Ms Harding’s professional awareness.
Details of the incident were relayed to the CEO and other decision makers, who ultimately decided to summarily dismiss Ms Kong because of her attack on the abilities of Ms Harding, reflecting a wider problem with Ms Kong’s interpersonal skills which had resulted in people not wanting to work with her.
Ms Kong unsuccessfully appealed against her dismissal, and then brought a number of claims to the Employment Tribunal including automatic unfair dismissal by reason of protected disclosures (section 103A Employment Rights Act 1996) and detrimental treatment by reason of having made protected disclosures (section 47B Employment Rights Act 1996).
The relevant law
A protected disclosure is a disclosure made by a worker that they reasonably believe shows serious wrongdoing within the workplace. In this instance, Ms Kong raising concerns about the financial compliance template would be considered a protected disclosure.
Protection is afforded to those who make protected disclosures by both section 47B and section 103A.
Section 47B protects individuals from detrimental treatment where they suffer retaliation for making a protected disclosure. This section is infringed where the protected disclosure materially influences the employer’s treatment of the individual concerned.
Section 47B states that where the detriment complained of is dismissal, section 103A instead applies. This section states an employee who is dismissed shall be regarded as unfairly dismissed if the reason (or the principal reason if there is more than one reason) for the dismissal is that the employee made a protected disclosure.
Decision
The tribunal held that the Ms Kong was unfairly dismissed but rejected her protected disclosure detriment and dismissal claims. The tribunal found that Ms Harding (upset by the protected disclosure about the template and the questioning of her own competence) subjected Ms Kong to detriment, and this detriment was materially influenced by the protected disclosure. However, this claim was time-barred.
On the other hand, the tribunal found that the principal reason for Ms Kong’s dismissal was not the protected disclosures she made, but that she had questioned Ms Harding’s professional awareness.
The tribunal drew a distinction therefore between Ms Kong’s conduct and her protected disclosures. It was this distinction which was the ground of the appeal to the Employment Appeal Tribunal and the Court of Appeal.
The Court of Appeal dismissed the appeal, agreeing that Ms Kong was dismissed because of what the decision makers perceived as the seriously inappropriate way in which she had challenged Ms Harding’s professional awareness, not because she had made protected disclosures. Interestingly, the fact that the tribunal found that Ms Kong had not acted in a way which justified her dismissal does not mean that the tribunal was required to find that the dismissal was due to Ms Kong making protected disclosures.
Comment
Sean McEntee, Solicitor in our Employment team said:
“Employers will welcome this decision but should be aware that Ms Kong may appeal this decision to the Supreme Court.
“When employers are concerned about dismissing an employee for misconduct (who has also made a protected disclosure) this case highlights the importance of documenting the reasons for dismissal, as well as making sure that the decision to dismiss is taken by someone who has not previously had involvement in the misconduct incident.
“It is very important that if a business is dismissing an employee for misconduct, who has also made a protected disclosure, that the protected disclosure is not the reason for dismissal, and that this reason for dismissal can be supported by evidence.”
Article published 13 October 2022.
