Whistleblowing: Can you disentangle a protected disclosure from the manner in which it is made?
18 August 2022
This isn’t a new issue for employers, nor is it a straightforward one. On the one hand, the whole purpose of the UK’s whistleblowing regime is to enable malpractice to be identified, and employers should encourage staff with genuine concerns to come forward; discovering issues sooner rather than later, and having the chance to address them, is, after all, usually best for business in the long term. But sometimes a disclosure goes beyond an escalation of genuine concern; sometimes, a whistleblower can make their disclosure in a way that is unreasonable or unacceptable. Then what?
The Court of Appeal decision in Kong v Gulf International Bank
The Court of Appeal has confirmed that, though it will not always be easy (and may even, in some cases, be impossible), the two can be separated. In particular, on the facts in Kong, the claimant, Ms Kong, had been dismissed, not because she had blown the whistle, but because in doing so she had unnecessarily and expressly called into question the professional awareness of Ms Harding, the individual to whom she had raised her concerns. But trying to separate a protected disclosure from the manner in which that disclosure is made creates huge challenges for employers, not least because the delineation may sit in a different place for different cases.
Whistleblowing invariably points the finger at someone
In Kong, the conduct issue was effectively pointing the finger at Ms Harding. However, whistleblowing by its nature often involves implicit criticism of individuals, or of an employer’s practices and processes – some upset is often unavoidable. Indeed, it is possible in this case that Ms Harding would have been nearly as, if not as, upset about the concerns that Ms Kong was raising, even if Ms Kong had not expressly suggested her concerns arose from a lack of legal awareness on Ms Harding’s part. One could suppose that any dismissal of Ms Kong for a purely implied criticism may have led to a different outcome; though maybe it wouldn’t, because, as is so often the case, it depends on the facts and circumstances.
In a run through some of the key decisions on separability in whistleblowing cases, the Court of Appeal in Kong reiterated that any enquiry into whether conduct in making a protected disclosure is separable from the disclosure itself needs to go further than looking merely at whether the conduct is a feature or consequence of the disclosure. Stopping there, the Court reiterated, would mean anything an employer did about such conduct must be deemed to have been driven by the protected disclosure, even where a Tribunal is satisfied that – factually – it wasn’t.
Dismissing in a whistleblowing context: the difference between unfair and automatically unfair dismissal
Was Ms Kong’s dismissal unduly harsh? The Employment Tribunal certainly thought so, upholding her ordinary unfair dismissal claim on the basis that no reasonable employer would have dismissed Ms Kong for the reasonable way in which she criticised Ms Harding. But therein lies a key difference between an ordinary unfair dismissal claim and a whistleblowing dismissal claim: what matters, where a whistleblower is concerned, is not whether the reason for dismissal is a fair or reasonable one, but whether the reason for dismissal is genuinely something other than the protected disclosure. Further, Kong has confirmed that conduct in making a protected disclosure need not be wholly unreasonable in order to be separate from the disclosure itself.
Business as usual
Of course, this case doesn’t now give employers carte blanche to assert that upset caused by a reasonably made whistleblowing disclosure can be used as a reason to dismiss a whistleblower, or subject them to some other detriment. Indeed, the Court of Appeal made clear in this case, and in previous cases, that Employment Tribunals should more carefully scrutinise employer decisions that look unreasonable at first blush, in order to thoroughly test whether an innocent explanation given for a decision is genuine.
It is therefore arguably business as usual for employers when it comes to encouraging a healthy ‘speak-up’ culture and protecting those who do speak up from suffering any sort of retaliation as a result of having done so. But employers can take some comfort that, in those cases where there is a genuine conduct issue in the manner in which a disclosure is made, and decision-makers have only that genuine conduct issue in mind when making their decision, appropriate action can be taken. Employers taking such action would, however, be wise to consider how that genuine conduct issue is investigated, tested and documented to mitigate the risks inherent in doing so.