Kong V Gulf International Bank Ltd

Protect Statement on the Court of Appeal judgment on Kong vs Gulf International Bank out on 8 July 2022: 

A worrying decision by the courts means an employer can dismiss a whistleblower for the manner in which they raised concerns, rather than the whistleblowing, even if those concerns were raised in a reasonable way. 

The Court of Appeal released its judgment on the case of Kong vs Gulf International Bank, ruling against Ms Kong, in which Protect had intervened on public policy grounds. 

The Court ruled that a whistleblower raising concerns about serious wrongdoing in a reasonable way, can still be dismissed if the employer subjectively finds her behaviour objectionable and therefore separate from the protected disclosure. An employer may be able to dismiss a whistleblower for the behaviour and breakdown in relationship that follows whistleblowing, rather than the whistleblowing itself.  

The Court said there are likely to be few cases where employers will be able to rely on upset or inherent criticism caused by whistleblowing as a separate and distinct reason. But Protect’s view is that this judgment will create uncertainty for whistleblowers, and make it easier to  victimise and dismiss whistleblowers.  The law needs to change to strengthen whistleblower protection.
 

Lord Borrie, supporting the passing  of the Public Interest Disclosure Act , explained that “the law will stand by [whistleblowers] provided they raise the matter in a responsible and reasonable way”; this judgment means that this is not the case. 

Protect CEO, Liz Gardiner said: 

“This judgment is very disappointing. We fear this undermines protections for whistleblowers. Whistleblowing law (the Public Interest Disclosure Act 1998) was established to encourage responsible raising of concerns about risk and wrongdoing in the public interest and to protect those who speak up from retaliation. Here the Tribunal  agreed that Ms Kong had been a responsible whistleblower, and agreed her dismissal was not justified, but still, she was denied whistleblowing protection and lost her automatic unfair dismissal case.  

“It is often the case that whistleblowing will cause upset, and very frequently leads to a breakdown in relationships.  But to allow an employer to dismiss because the relationship broke down and to say this can be entirely separated from the act of whistleblowing could send the wrong signal to unscrupulous employers.

“Employers should heed the Court’s ruling that there will be few cases where employers can rely on these distinctions”.  Nevertheless, we need greater clarity in the law. The current  test for whistleblower dismissal is too high a hurdle for whistleblowers to jump.  

 Ms Kong says If an exemplary, blameless whistleblower cannot win a whistleblowing case like this, then who can? “ 

Background  

Ms Kong, who was Head of Internal Audit, blew the whistle on the illegality of a new investment product that her employer Gulf International Bank was offering to investors.  In doing so, she questioned the legal awareness of the Bank’s Head of Legal.  This criticism led to a complaint, and ultimately her dismissal.  Both the Employment Tribunal (ET) and the Employment Appeal Tribunal (EAT) agreed that she had been unfairly dismissed but found that the principal reason for the Ms Kong’s dismissal was not the fact that she blew the whistle, rather her behaviour and the consequent breakdown of the relationship between her and the Head of Legal was the main reason.