A draft audit report prepared by Ms Kong, Head of Financial Audit at the bank, raised concerns that a legal agreement relating to a financial product did not provide sufficient protection against risk, which amounted to protected disclosures under the whistleblowing legislation. Their Head of Legal, Ms Harding, disagreed with these views and a discussion followed in which Ms Kong questioned Ms Harding’s legal awareness about the relevant issue. Ms Harding later complained to the Head of HR (Ms Yates) and CEO that Ms Kong had criticised her professional integrity and gave Ms Yates the impression that she could no longer work with Ms Kong. A collective decision was then taken, by Ms Yates, the CEO and Ms Kong’s line manager, that she should be dismissed. The termination letter referred to Ms Harding’s view that Ms Kong had questioned her integrity and said that her approach was entirely unacceptable as it fell short of the professional behaviour expected and was contrary to the principles of treating colleagues with dignity and respect. A wider review had identified other incidents, and concluded that Ms Kong’s behaviour, manner and approach with colleagues resulted in them not wanting to work with her.
The employment tribunal rejected Ms Kong’s automatic unfair dismissal claim, finding that the decision makers had decided to dismiss on the basis of her conduct in questioning Ms Harding’s legal awareness, not the protected disclosures.
The EAT dismissed her appeal. It found that the tribunal was right not to attribute Ms Harding’s motivation to the bank and that Ms Kong’s protected disclosure was properly separable from her expression of concern about Ms Harding’s legal awareness.
Key Action Points for Human Resources and In-house Counsel
The tribunal found that Ms Harding’s treatment of Ms Kong after their confrontation (which included limiting their subsequent interaction) amounted to an unlawful detriment because of Ms Kong’s protected disclosure. This claim only failed because it was out of time.
This decision is a reminder for employers both of the need for caution when dismissing an employee following a whistleblowing incident, and the importance of separating the reasons for dismissal from the subject matter of the protected disclosure.