Previous case law has held that if a manager is motivated by an unlawful reason to bring about an employee’s dismissal which the decision maker was not aware of, then that reason can be treated as the real reason for dismissal. In Kong v Gulf International Bank Ltd, the Employment Appeal Tribunal (EAT) held that the circumstances in which that scenario would apply are very limited.
Basic facts
Ms Kong, the head of financial audit, drafted a report raising concerns about a legal agreement in respect of one of the company’s financial products which, in her opinion, did not contain sufficient safeguards against certain risks to non-bank institutions. The head of legal, Ms Harding, who had drafted the agreement, disagreed with Ms Kong’s assessment. She went to Ms Kong’s office where a discussion took place following which there were a series of email exchanges.
Ms Harding subsequently complained to HR that Ms Kong had questioned her professional integrity to such an extent that she could not see how the two could continue working together. Ms Kong said that she had not been disputing Ms Harding’s professional ability but rather her legal awareness. It was accepted that, by raising her concerns about the agreement, Ms Kong had made protected disclosures.
After discussions with the head of HR and the CEO, Ms Kong was dismissed because “her behaviours, manner and approach had resulted in people not wanting to work with her”. The termination letter specifically referred to her conversation with Ms Harding and concluded that her approach had been “entirely unacceptable and fell well short of the standards of professional behaviour” expected. Ms Kong lodged complaints of detrimental treatment and unfair dismissal on the basis that she had made protected disclosures (blown the whistle).
Tribunal decision
Rejecting Ms Harding’s version of events, the tribunal accepted that she had gone to see Ms Kong without an appointment “in an agitated state” because of the whistleblowing concerns that Ms Kong had raised. It concluded that although this incident constituted an unlawful detriment, it was out of time.
It upheld her claim for ordinary unfair dismissal, but dismissed her claim for automatic unfair dismissal for having made a protected disclosure. In reaching its decision, and in light of its finding that the incident with Ms Harding was an unlawful detriment, the tribunal considered the principles in Royal Mail Group v Jhuti (weekly LELR 656). This states that “if a person in the hierarchy of responsibility above the employee” decides that the employee should be dismissed but that the real reason for her dismissal should be concealed, then the courts can attribute that reason (in other words, the invented reason) to the decision maker.
However, the tribunal did not consider that Ms Harding’s degree of upset or the raising of her concerns with the senior management team amounted to an invention in the same way as Jhuti. As such, it held that it could not attribute Ms Harding’s motivation to the managers who took the decision to dismiss her.
It concluded that the principal reason for dismissal was Ms Kong’s conduct in questioning Ms Harding’s professional integrity, a potentially fair reason under the law. Ms Kong appealed against the decision in relation to her claim for automatic unfair dismissal.
EAT decision
The EAT dismissed Ms Kong’s appeal distinguishing the case from Jhuti, which reflected an unusual set of circumstances. First, it could not be said that the fact Ms Harding was upset by the way Ms Kong had questioned her professional integrity, as opposed to the disclosure itself, amounted to an invented reason for her dismissal. Second, while Ms Harding was part of the senior management team, Ms Kong did not report to her nor did Ms Harding have responsibility for her. Third, the tribunal had not made any finding that Ms Harding was trying to engineer Ms Kong’s dismissal.
As for Ms Kong’s argument that it was not possible to distinguish between raising questions about Ms Harding’s abilities from the protected disclosures themselves, the EAT held that the tribunal had addressed this issue. While they were connected, it was clear that the way in which Ms Kong had communicated her criticisms of Ms Harding was distinct from her protected disclosures.
The EAT agreed with the tribunal that the reason for Ms Kong’s dismissal was her unacceptable personal attack on Ms Harding’s abilities, an attack which was reflective of a wider problem with Ms Kong’s general interpersonal skills and conduct.
Comment
Although Ms Kong lost her claim for automatic unfair dismissal because the tribunal did not find that another manager had invented another reason for her dismissal, it did find that the way Ms Kong was treated by the Head of Legal after their discussion amounted to an unlawful detriment because she made a protected disclosure. However, that claim was out of time. It will therefore be important to consider, when representing members, if they have been subject to a detriment for making a protected disclosure prior to any dismissal as the time limit to lodge a claim will run from the date of the act or failure to act which led to the detriment.