Article / 1 Oct 2021

Were employee’s complaints the reason for dismissal?

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Gateley Legal

 Ms L Kong v Gulf International Bank (UK) Ltd

If an employee raises an issue with their employer that discloses any legal wrongdoing this may amount to a protected public interest disclosure. The employee will gain protection as a whistle-blower which will mean that if they are dismissed as a consequence it will be regarded as automatically unfair. The case of Ms L Kong v Gulf International Bank (UK) Ltd highlights that the protection will only apply though where it is the disclosure that caused the dismissal and not where it is the manner of the disclosure. 

Facts

Ms Kong, Head of Financial Audit, had raised concerns that terms on which the bank was offering services to investors was unsuitable. In a subsequent meeting she also suggested that the Head of Legal should have already been aware of the problem. There had been a confrontation between the two and a complaint was made that Ms Kong was unfairly questioning the professional integrity of the Head of Legal. That complaint led to a decision to dismiss Ms Kong. 

Decision

Ms Kong’s claim that she had been automatically unfairly dismissed for making a protected disclosure failed. It was held that the decision to dismiss Ms Kong was because of her behaviour and manner towards colleagues in that she questioned a colleague’s professional competence in relation to the subject matter of a protected disclosure. That was separable from the act of making a protected disclosure.

Key takeaway point

The decision is an example of where the reason for dismissal is separate from the disclosure. Although the subject of the protected disclosure was connected to the criticism of the Head of Legal the two issues could be properly distinguished as the criticism was not a necessary part of the disclosure. The management decision to dismiss had been taken because they viewed the personal attack on a colleague as unacceptable, so they were not motivated by the disclosure.

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