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Bank employee loses appeal over whether whistleblowing led to dismissal

Makbool Javaid, Partner - Simons Muirhead & Burton

In the case of Kong v Gulf International Bank (UK) Ltd, Ms L Kong was employed as Head of Financial Audit. A draft audit report prepared by her raised concerns that a legal agreement relating to a certain financial product did not provide sufficient protection against certain risks. It was accepted by her employer that her observations constituted whistleblowing disclosures.

Ms Kong’s observations upset her colleague Ms Harding who was the Bank’s Head of Legal and had approved the use of the offending documents. Ms Harding visited Ms Kong in her office to ‘have it out with her’. In the ensuing heated conversation, Ms Kong questioned Ms Harding’s competence. She repeated her concerns about Ms Harding’s competence in a discreet e-mail which she sent to the Bank’s Managing Director Mr Mohammed the following day.

Ms Kong was dismissed 6 weeks later by a panel which included Mr Mohammed. The stated reason for dismissal was not Ms Kong’s whistleblowing disclosures but rather her ‘behaviour, manner and approach’ which had resulted in people not wanting to work with her. Their conclusion was mainly based upon Ms Kong’s previous interaction with Ms Harding.

The tribunal upheld Ms Kong’s unfair dismissal claim but not on the automatically unfair grounds of whistleblowing. Ms Kong appealed on the basis that she had been unfairly dismissed for making protected disclosures.

The Employment Appeal Tribunal dismissed the appeal. It was held that the ET had properly considered the existing guidance and appropriately concluded that the managers who decided to dismiss Ms Kong had not been motivated by the protected disclosures but rather by her conduct towards the offended employee; which was considered as an “unacceptable personal attack” and a reflection of Ms Kong’s interpersonal skills.

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