Kong v Gulf International Bank (UK) Ltd

Factual and Procedural Background

The Plaintiff was employed by the Defendant in February 2010, initially as a Senior Business Auditor and later as Head of Financial Audit from March 2016. The Plaintiff was responsible for risk-based audits of the Defendant's business activities. On 22 October 2018, the Plaintiff made a verbal protected disclosure to the Head of Legal regarding the unsuitability of a financial compliance template used by the Defendant. The next day, the Plaintiff repeated these concerns in an email. The Head of Legal reacted negatively, refusing mediation and indicating an inability to work with the Plaintiff. On 3 December 2018, the Plaintiff was summarily dismissed by senior management of the Defendant.

The Plaintiff brought claims before an employment tribunal for ordinary unfair dismissal, automatic unfair dismissal by reason of protected disclosures, detrimental treatment due to protected disclosures, and wrongful dismissal. The tribunal found the dismissal unfair but rejected claims related to protected disclosures and wrongful dismissal. It found that the Head of Legal's adverse treatment of the Plaintiff was materially influenced by the protected disclosures but was time-barred. The tribunal concluded that the principal reason for dismissal was the Plaintiff's conduct in questioning the Head of Legal's professional competence, distinct from the protected disclosures. This distinction was challenged on appeal.

The Plaintiff appealed to the Employment Appeal Tribunal (EAT), challenging the tribunal's rejection of the automatic unfair dismissal claim and the failure to impute the Head of Legal's motivation to the decision-makers, relying on the Royal Mail Group Limited v Jhuti principle. The EAT dismissed the appeal. The current appeal focuses on the separability issue raised by the Plaintiff.

The Plaintiff was represented pro bono, the Defendant by senior counsel, and a whistle-blowing charity intervened with permission, providing submissions supporting the Plaintiff's position.

Legal Issues Presented

1. Whether the tribunal erred in law by applying different legal tests for separability of conduct and protected disclosures in the claims for detrimental treatment and automatic unfair dismissal.
2. Whether the tribunal was correct to distinguish between the Plaintiff's conduct in making protected disclosures and the disclosures themselves when determining the principal reason for dismissal.
3. Whether the conduct relied upon was properly separable from the protected disclosures or whether it was inseparable and thus dismissal was automatically unfair.

Arguments of the Parties

Appellant's Arguments

• The tribunal inconsistently applied the separability test between the detriment and dismissal claims, using a different legal standard improperly.
• The conduct relied upon for dismissal was inseparable from the protected disclosures, as it was the same conduct objected to by the Head of Legal.
• The test for separability should be objective and consistent across claims involving protected disclosures.
• The Plaintiff's conduct was reasonable or only ordinarily unreasonable and thus should be protected; upset caused to the Head of Legal cannot justify separation.
• The tribunal's failure to apply a structured approach to separability led to an erroneous outcome denying protection for the Plaintiff's whistleblowing.
• The findings were perverse and should be overturned.

Respondent's Arguments (Supported by Intervener)

• The separability principle is well-established and applied consistently across related contexts (trade union activities, victimisation, whistleblowing).
• The tribunal correctly distinguished between the protected disclosures and the Plaintiff's conduct, which was considered unacceptable by the decision-makers.
• Conduct that is genuinely separable and distinct from protected disclosures can justify dismissal without rendering it automatically unfair.
• The tribunal's factual findings were well-supported and not perverse, and it applied the correct legal principles.
• Upset caused by protected disclosures is generally part of whistleblowing and not a separate reason for dismissal, but the tribunal focused on conduct, not upset alone.
• The structured approach proposed by the Plaintiff and intervener was unnecessary and would not have altered the outcome.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by affirming the established legal framework protecting whistle-blowers under the Public Interest Disclosure Act 1998 and the Employment Rights Act 1996. It noted the distinction between detrimental treatment (section 47B ERA) and dismissal (section 103A ERA), each requiring different causation tests: material influence and principal reason, respectively.

The tribunal’s factual findings showed that the Head of Legal's treatment of the Plaintiff was materially influenced by the protected disclosures, but the principal reason for dismissal was the Plaintiff's conduct in questioning the Head of Legal's professional competence or awareness. The court accepted that the tribunal correctly applied the separability principle, distinguishing conduct from protected disclosures as separate reasons for dismissal and detriment claims.

The court rejected the Plaintiff’s argument that the tribunal applied inconsistent legal tests by emphasizing that different decision-makers were involved in the detriment and dismissal claims, requiring separate factual inquiries. The court further rejected the contention that the conduct was inseparable from the disclosures, noting that conduct can be legitimately distinguished if it amounts to unacceptable behavior or serious misconduct.

The court examined authorities from related contexts (trade union activities and victimisation) and found a consistent approach to separability, which requires close factual analysis rather than fixed thresholds or rigid tests. It held that the separability principle is not a rule of law but a factual inquiry into the real reason for the employer’s action.

While recognizing that whistle-blowing often causes upset or criticism, the court held that such upset is generally part of the disclosure itself and not a separate reason for dismissal. However, in this case, the tribunal found the dismissal was due to the Plaintiff’s conduct, not the protected disclosures per se. The court found no error in this reasoning.

The court also found no perversity in the tribunal’s findings, given the evidence and genuine beliefs of the decision-makers. The proposed structured approach to separability by the Plaintiff and the intervener was deemed unnecessary and not required to resolve the case.

In conclusion, the court affirmed that the tribunal correctly directed itself legally, carefully scrutinized evidence, and reached a consistent and reasonable conclusion on the separability issue.

Holding and Implications

The court DISMISSED THE APPEAL.

The direct consequence is that the tribunal’s decision stands: the dismissal was unfair but not automatically unfair due to protected disclosures, as the principal reason was the Plaintiff’s conduct rather than the disclosures themselves. The decision confirms the application of the separability principle in whistle-blowing cases, emphasizing that conduct genuinely separable from protected disclosures can justify dismissal without attracting automatic unfair dismissal protection.

No new precedent was established; the ruling reinforces existing legal principles and evidentiary standards regarding whistle-blower protections and the separability of conduct from protected disclosures in dismissal cases.