Dismissal for criticising colleague in relation to protected disclosure was not automatically unfair


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The Employment Appeal Tribunal (EAT) has held in Kong v Gulf International Bank (UK) Ltd that an employment tribunal's decision that an employee who was dismissed for questioning a colleague's professional competence in relation to the subject matter of a protected disclosure was not automatically unfairly dismissed.

The claimant was employed as Head of Financial Audit. In September 2018 she drafted a report raising concerns that a legal agreement governing one of GIB's new financial products was unsuitable and did not contain sufficient safeguards (the protected disclosures). She emailed the report to GIB's Head of Legal, Ms Harding, who disagreed with the claimant's view and confronted her in person. The claimant questioned Ms Harding's legal awareness of the relevant issue and Ms Harding was upset and complained to GIB's Head of HR and CEO that the claimant had criticised her professional integrity. 

The Head of HR and CEO discussed the incident and formed the view that the claimant should be dismissed. They prepared a document setting out various concerns about the claimant, including the incident with Ms Harding and met the claimant's line manager to persuade him that dismissal was the correct course of action. He agreed, and she was dismissed. The dismissal letter specifically referred to the claimant's having questioned Ms Harding's integrity which was described as falling "well short of the standard of professional behaviour" expected. The claimant brought claims which included a claim for unlawful detriment and automatic unfair dismissal for having made protected disclosures.

The claim for unlawful detriment was held to be out of time, and the claim for automatic unfair dismissal failed. The tribunal accepted that Ms Harding's complaint about the claimant's behaviour was motivated by the protected disclosures and that the complaint was a material part of the reason why the claimant was dismissed, but it found that the decision makers had decided to dismiss on the basis of the claimant's conduct in questioning Ms Harding and not the protected disclosures.

The EAT upheld the tribunal's decision. It observed that the general rule that the only motivation attributable to the employer is that of the decision maker continues to apply. The decision makers were aware of the general context of the draft audit report and the material nature of the interactions with Ms Harding, and were not solely dependent on Ms Harding's oral account of the basic facts. There had been no finding that Ms Harding was seeking the claimant's dismissal and she was not responsible for the claimant.  

The EAT distinguished the present case from that of Royal Mail Group v Jhuti in which the claimant's manager had entirely invented performance concerns which the decision maker adopted, unaware of the invention. Here there was no suggestion that Ms Harding had engineered the claimant's dismissal (though her treatment of the claimant after their confrontation amounted to an unlawful detriment, a claim which would have succeeded had it not been out of time).

Take note: In Jhuti the Supreme Court found that if a person in the hierarchy of responsibility above an employee determines that the employee should be dismissed for a reason, but hides this behind an invented reason adopted by the decision-maker, the reason for the dismissal is the hidden reason rather than the invented reason. However, in Kong Ms Harding had no involvement in the actual dismissal process and had not attempted to engineer the claimant's dismissal. 
   

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