Dismissal was unfair but decision-maker was not motivated by protected disclosures.

If an employee is dismissed because they have made a protected disclosure (or "blown the whistle"), this will be automatically unfair. There is no financial cap on compensation where a dismissal is found to be because of a protected disclosure, and there is no requirement for the employee to have two years' service. Where financial losses are likely to be above the current cap of £89,493 or one year's gross pay, a finding of automatic unfair dismissal for whistleblowing can therefore be particularly costly for employers.

For further information on when a disclosure will be protected, see the following article from 2019, which is available from our website: Was disclosure in the public interest when made in defence of concerns about poor performance?.

In addition, both employees and workers are protected from suffering detriment because they have blown the whistle. In our 2018 article, Can an individual be personally liable for dismissing someone because of whistleblowing? we covered the risk of personal liability for individual managers where they subject a member of staff to detriment or dismiss them because of a protected disclosure.

Can someone be fairly dismissed because of the way they raise their whistleblowing concerns?

In tribunal, the first step is for the claimant to show evidence to suggest, in the absence of another explanation, that they have been dismissed for the sole or principal reason that they blew the whistle. This is called having a "prima facie" case. The burden then shifts to the employer to show that the sole or principal reason for dismissal was a potentially fair reason and not the protected disclosure.

Tribunals have often considered cases where an employee has raised their concerns in an unacceptable way. The question in these cases is whether the employee has been dismissed because of the protected disclosure (which would be automatically unfair) or whether they have been dismissed for misconduct (which would be potentially fair).

Case law in this area is very fact sensitive because the tribunal has to consider what is in the mind of the person making the decision to dismiss and whether they were motivated by the protected disclosures, or by other factors, such as the claimant's unacceptable mode of communication, breakdown in working relationships, or breach of workplace rules.

Can the motivation of another person be attributed to the dismissal decision-maker?

In the case of Royal Mail Group Ltd v Jhuti, the Supreme Court made clear that there could be some limited circumstances where the motives of another person in the employer organisation can be attributed to the person making the decision to dismiss. This will happen: "if a person in the hierarchy of responsibility above the employee determines that she (or he) should be dismissed for a reason but hides it behind an invented reason which the decision-maker adopts, the reason for the dismissal is the hidden reason rather than the invented reason".

We consider this case further in our 2020 article: Unfair dismissal: whose reason is it anyway? (available from our website).

A recent case in the EAT has explored further when the motivations of another person influenced by claimant's protected disclosures will be attributed to the employer. It also sheds more light on when the manner of raising concerns rather than the concerns themselves will be found to be the principal reason for dismissal.

Case details: Kong v Gulf International Bank (UK) Ltd

Ms Kong was employed by GIB as Head of Financial Audit. In a draft audit report, Ms Kong raised concerns that a legal agreement GIB was proposing to use in relation to a particular financial product was not suitable for use with non-bank investors. It was not disputed that the claimant had raised protected disclosures when expressing her concerns about this agreement.

The Head of Legal, who was responsible for the legal agreement, disagreed with the claimant's concerns. She entered the claimant's office without knocking and a heated discussion took place. She later gave her version of events to the Head of HR and others, saying she had been upset by the way in which the claimant had questioned her professional integrity and legal awareness, and could not see how she could continue working with the claimant. The Head of HR and CEO considered that the claimant should be dismissed. The Group Chief Auditor (who line managed the claimant) agreed and the claimant was then summarily dismissed.

The claimant brought claims to an employment tribunal for unfair dismissal and for detrimental treatment and automatic unfair dismissal for having made protected disclosures.

The tribunal decided that the conduct of the Head of Legal was detrimental treatment because of the claimant's protected disclosures. However, that claim was brought out of time and so did not succeed.

The tribunal found that those actually making the dismissal decision were not motivated by the claimant's protected disclosures, but by their view of her conduct, in particular her poor interpersonal skills and communication with colleagues. The complaint of automatic unfair dismissal for having made protected disclosures was therefore unsuccessful. However, the claimant was found to have been ordinarily unfairly dismissed because the dismissal by reason of conduct was not fair in all the circumstances.

The claimant appealed against the failure of the automatic unfair dismissal claim.

The EAT agreed with the tribunal that the claimant had not been dismissed because of her protected disclosures. It agreed that the decision-makers had been motivated principally by the way the claimant raised her concerns. That is, the decision-makers considered that the mannerof the claimant's questioning of the Head of Legal's legal awareness and professional integrity was unacceptable conduct and warranted summary dismissal.

The EAT was clear that this was not a case, such as Jhuti, where someone in the hierarchy above the claimant had invented a reason for dismissal as a response to their protected disclosures, and this invented reason had been taken up unwittingly by the dismissing officer. Here, the Head of Legal was not in fact in the hierarchy above the claimant (she was more senior but was not in the claimant's reporting line). Also, the Head of Legal could not be said to have invented a reason for dismissal and misled the decision-makers. She was found to have over-exaggerated the extent to which the claimant had questioned her professional integrity, but this was not in the same order as the invention envisaged by the Supreme Court in Jhuti.

Comment

Employers should be aware of the additional risks associated with whistleblowing claims. These include additional financial risks where a dismissal is found to be by reason of protected disclosures, particularly where an employee might claim significant losses relating to pensions, bonuses, or career-loss earnings.

It is important to ensure that the reason or reasons for dismissal are well evidenced and documented, including any issues which have arisen previously, as this will assist an employer in showing that the reason for dismissal was not an unlawful reason.

Cases where an employee has breached workplace rules in the way they raise protected disclosures will need very careful handling to minimise the risks to the employer. It is important to note that a tribunal may decide that the real reason for dismissal was the disclosures themselves, no matter how inappropriate the claimant's conduct.

As occurred in this case, even though an employer may be able to defend an automatic unfair dismissal claim, a claimant may still be found to be ordinarily unfairly dismissed if the potentially fair reason for dismissal is not sufficient to justify dismissing in all the circumstances of the case. Following a fair process which complies with the employer's own policies and (for conduct dismissals) with the Acas Code of Practice on Disciplinary and Grievance Procedures is vital to lower the risk of successful claims.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.