Tegan Osborne-Brown
Posted on 21 Sep 2021

Whistleblowing: can the motivations of a manager be attributed to the employer?

Kong v Gulf International Bank (UK) Ltd [2021] 9 WLUK 125

Background

Ms Kong was employed at Gulf International Bank (UK) Limited (Gulf) and raised concerns to Ms Harding (Head of Legal) that a legal agreement was unsuitable. These concerns amounted to protected disclosures (visit "When is a whistleblowing disclosure made in the public interest?" for a discussion of qualifying disclosures).

Ms Harding complained to senior management. Gulf dismissed Ms Kong on the assertion that she questioned the professional integrity of Ms Harding.

Ms Kong brought claims of ordinary unfair dismissal, unlawful detriment and automatic unfair dismissal for having made protected disclosures under the general rule that a worker must not be subjected to detriment by their employer due to making a protected disclosure and that dismissal based on a protected disclosure is automatically unfair.

What did the Tribunal and Employment Appeal Tribunal (EAT) decide?

At Tribunal, the ordinary unfair dismissal claim succeeded whilst the claim for unlawful detriment would have succeeded if it had not been out of time. The claim for automatic unfair dismissal failed.

The Tribunal considered Orr v Milton Keynes Council [2011] EWCA Civ 62 and Royal Mail Group v Jhuti [2019] UKSC 55. Under Orr, an employer cannot be deemed to have knowledge of all facts known to its employees when deciding whether to dismiss another employee. Jhuti amended this precedent: if a person of a higher grade than the dismissed employee decides that the employee should be dismissed for a reason, but manipulates a different reason for dismissal to management, the initial reason is attributed to the dismissal. These cases extend the rule that the only motivations attributable to an employer are those of the decision-maker.

However, the exceptions in Jhuti and Orr did not apply because Ms Harding was not seeking Ms Kong's dismissal and her representation to management was not manipulation under Jhuti.

The EAT dismissed Ms Kong's appeal and refused to question the Tribunal's finding that Ms Kong's criticism of Ms Harding was an implicit, but not integral, part of the protected disclosure. The EAT agreed with the Tribunal that Ms Kong's conduct towards Ms Harding motivated the dismissal. 

What can be taken from this decision?

The key point highlighted in Kong is that the principles in Jhuti are extreme. There is a distinction between senior employees manipulating the reason for dismissal and the reason operating only in the mind of the decision-maker.

Employers can take solace in the judgment that only situations as unusual as Jhuti will disturb the general rule that an employer cannot be deemed to have knowledge of all facts known to its employees.

This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact Tegan Osborne-Brown or Rachael Lloyd to discuss any issues you are facing.