UK: dismissal for questioning a colleague's competence in connection with a protected disclosure was not automatically unfair

Update: the Court of Appeal dismissed the appeal in this case on 8 July 2022 - see our post here.  

Dismissal is automatically unfair where the principal reason for the dismissal is a protected disclosure.  Where employers take exception to the way in which a claimant makes their disclosure, or the surrounding conversations or conduct, the key issue becomes whether this can properly be separated, as the reason for dismissal, from the disclosure itself.  If it can, the dismissal will at most be ordinarily unfair and claims subject to a cap on compensation and the two year service requirement;  if not, uncapped compensation for automatically unfair dismissal can be awarded to claimants from day one of their employment.

The recent EAT decision in Kong v Gulf International Bank is helpful to employers on this issue (although note that permission to appeal has been sought).  The EAT upheld a tribunal decision that the inappropriate manner in which an employee criticised a colleague, in relation to the subject matter of a protected disclosure, could properly be separated from the protected disclosure itself as the reason for dismissal.

The claimant, who was employed as Head of Financial Audit, disclosed concerns about the drafting of a legal template, which amounted to protected disclosures.  The Head of Legal had been responsible for the template and disagreed with those concerns; discussions between her and the claimant resulted in her forming the view that the claimant was impugning her professional integrity.  She complained to the Head of HR and CEO, indicating that she was very upset and suggesting she could not continue working with the claimant.  They dismissed the claimant because of what they considered to be an unacceptable personal attack on the Head of Legal's abilities, reflective of a wider problem with interpersonal skills. This conduct reason for dismissal was connected but properly distinguishable from the protected disclosure. The claimant's concerns about the legal template were separable from the question of how that state of affairs had come about, who was responsible for it, and whether they were deserving of any form of criticism in that regard.  The criticism of the Head of Legal was not a necessary part of the disclosure and taking issue with those critical comments was not the same as taking issue with the protected disclosure.

The case also touched on the issue of whether the reason for dismissal can be a protected disclosure if the decision-makers themselves are not motivated by the disclosure but have been manipulated by someone else who is.  Previous case law (Royal Mail Group Ltd v Jhuti) has established that it may be possible to attribute to the employer the motivation of another person but, as stressed in Kong, this will be rare and only apply where:

1. that person tried to procure the employee's dismissal because of the protected disclosure;
2. the decision-maker was "peculiarly dependent" on that person as the source of the underlying facts on which the decision is based; and
3. the role or position of that person meant that it would be appropriate to attribute their motivation to the employer.

On the first point, the tribunal had concluded that the Head of Legal was wrong to perceive the claimant's comments as a criticism of her integrity, rather than just of her knowledge or competence, but this over-reaction was not the sort of manipulation or invention needed to satisfy the first requirement (and was contrasted with the facts in Jhuti where the manager entirely invented performance concerns which were adopted by the decision-maker, unaware of the invention).  Further, the Head of Legal had turned to HR for support or advice rather than actively seeking the claimant's dismissal.

In relation to the third point, the EAT in Kong made clear that this means the person must be "in the hierarchy of responsibility" above the claimant.  Being part of the senior management team generally will not be enough - the person will need to be responsible for or directly manage the claimant.  The Head of Legal did not satisfy this test.