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Can Employment Tribunals look beyond the motivation of a dismissing manager and consider the ‘real’ reason for a dismissal? Only on rare occasions, said the Employment Appeal Tribunal, in a reassuring decision for employers.
Once an employee has established a right to bring a claim for unfair dismissal, employers must show:
- the reason for the dismissal; and
- why it was a potentially fair reason.
Dismissals because an employee has made a ‘protected disclosure’ – also known as ‘whistleblowing’ – will be automatically unfair. Workers who ‘blow the whistle’ are also protected from detrimental treatment, short of dismissal, for making a protected disclosure.
In general, the employer is considered the decision-maker on dismissal matters. However, the Supreme Court has previously said that, in some circumstances, an Employment Tribunal can make a decision based on other information.
The 2019 case of Royal Mail Limited v Jhuti said that the knowledge of someone other than the decision maker can be relevant. A manager may want an employee dismissed for blowing the whistle, but could use allegations of poor performance to hide their true motivations, which are taken in good faith by the dismissing manager. In cases like this, the ‘real’ reason for the dismissal will be the whistleblowing disclosures, meaning it is automatically unfair.
This month, in Kong v Gulf International Bank (UK) Limited, the Employment Appeal Tribunal has looked at the extent to which this rule applies.
The Claimant, Ms Kong, worked for Gulf International Bank. Her role required her to consider the bank’s compliance with legal and regulatory obligations.
Ms Kong produced a report and spoke to her colleagues, including Ms Harding, about her concerns around how suitable new financial products were. It was agreed that these concerns were ‘protected disclosures’ for the purpose of whistleblowing legislation.
However, Ms Harding and Ms Kong disagreed about the report, leading Ms Harding to question Ms Kong’s understanding of the relevant issue. The working relationship between the two soured, and Ms Harding complained to senior leadership about Ms Kong’s work, leading to Ms Kong’s dismissal.
The dismissal letter claimed that Ms Kong’s employment was terminated as she had failed to comply with “the standard of professional behaviour” expected by the bank. The bank explained that Ms Kong’s protected disclosures were not a factor in her dismissal and these would be included in an audit report. It was her behaviour, manner and approach with colleagues that had led to her dismissal.
Ms Kong brought several Employment Tribunal claims against the bank, including an allegation that her dismissal was automatically unfair for ‘blowing the whistle’.
An Employment Tribunal upheld Ms Kong’s claim for ordinary unfair dismissal but rejected Ms Kong’s claim that her dismissal was automatically unfair for making a protected disclosure.
The Employment Tribunal found that the dismissing managers had not dismissed Ms Kong because she had made protected disclosures to Ms Harding. Her dismissal was, in the eyes of the Employment Tribunal, due to her inappropriate conduct.
Ms Kong appealed.
The Employment Appeal Tribunal rejected Ms Kong’s appeal. It said there are limited circumstances in which an Employment Tribunal can look beyond a dismissing manager’s reason for dismissal.
This exception only applies if there are three features present.
1. The person whose motive for dismissal is attributed to the employer wanted the employee dismissed for a wrongful or prohibited reason e.g. for raising a protected disclosure / ‘blowing the whistle’.
2. The dismissing manager depends heavily on that individual for the facts and information on which the decision to dismiss was based.
3. The person who was manipulating the reason for dismissal was particularly involved in the investigation that led to dismissal, or was in the hierarchy of responsibility above the employee.
In Kong v Gulf International Bank (UK) Limited, none of these features applied. Although Ms Harding complained about Ms Kong’s actions to senior leadership, the decision makers were not misled. Ms Harding’s comments were just a factor in the decision to dismiss that was entirely separate from Ms Kong’s whistleblowing.
The Employment Appeal Tribunal noted that the dismissing managers were motivated by the way Ms Kong raised her concerns, and how she inappropriately shared her criticisms with Ms Harding. These aspects were clearly separate to the fact that she had actually made the protected disclosures.
This decision is reassuring for employers, as it shows that the principles in Jhuti are narrow and will rarely apply. This decision will make it more difficult for claimants to argue that an Employment Tribunal should look deeper into decision makers’ motives. If a manager happens to have complained about an employee’s behaviour, it will not automatically meet the test in Jhuti; this principle will only apply in extreme cases of manipulation. In most cases, the dismissing manager’s reason for dismissal – and by extension, the employer’s reason for dismissal – will be accepted at face value.
It’s also reassuring to see the Employment Appeal Tribunal clearly defining the distinction between a dismissal for raising a protected disclosure (automatically unfair) and a dismissal for inappropriate behaviour in the way the concern was raised or discussed (which may be fair). This subtle but important difference is fairly common in whistleblowing scenarios, so it’s helpful to see them being treated as severable.
Click here to read the full judgment.
Contributor: Sarah Maddock
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at September 2021. Specific advice should be sought for specific cases. For more information see our terms & conditions
28 September 2021