Ling Kong v Gulf International Bank (UK) Limited

In determining whether adverse treatment was imposed because of a protected disclosure, a tribunal must identify the real reason operating in the relevant decision-maker’s mind. Conduct associated with a disclosure may be treated as a genuinely separate reason, but separability is a factual evaluation rather than a rule of law or a seriousness threshold.

Conduct which is blameless or merely ordinarily unreasonable calls for especially careful scrutiny of the employer’s explanation. Criticism and upset inherent in whistleblowing will rarely constitute separate reasons. Where different decision-makers take different actions, the reason for each action and the question of separability must be assessed independently.

The claimant, a senior bank auditor, made protected disclosures concerning the use of a financial compliance template. After she expressly questioned the Head of Legal’s professional awareness, the Bank dismissed her. The employment tribunal found that the Head of Legal’s earlier detrimental treatment was materially influenced by protected disclosures, although that claim was out of time. It nevertheless found that the principal reason for dismissal was the claimant’s conduct towards the Head of Legal, not the disclosures themselves.

The tribunal upheld an ordinary unfair dismissal claim but rejected the automatic unfair dismissal claim under section 103A of the Employment Rights Act 1996. The Employment Appeal Tribunal dismissed the claimant’s appeal. The claimant appealed on the grounds that the tribunal’s separability findings were inconsistent and that her conduct could not lawfully be separated from the disclosures.

1. Appeal dismissed. The tribunal was entitled to find that the principal reason for dismissal was the decision-makers’ perception of the seriously inappropriate way in which the claimant challenged a senior colleague’s competence or awareness, rather than the making of protected disclosures. Its finding that the dismissal was substantively and procedurally unfair did not require a finding that it was automatically unfair under section 103A of the Employment Rights Act 1996.

2. The statutory inquiry concerns the real reason operating in the relevant decision-maker’s mind. The separability principle is only a label for a possible step in that factual inquiry. It permits a tribunal to decide whether conduct associated with a protected disclosure was genuinely separate from the disclosure or so closely connected with it that no fair and sensible distinction can be drawn. It neither deems an employer to have a particular reason nor gives whistleblowers immunity for all disclosure-related conduct.

3. No objective standard or threshold of seriousness governs separability. Expressions such as wholly unreasonable, extraneous or malicious conduct illustrate the distinction but do not define its limits. Even conduct which is not unreasonable may contain a separate feature that was the true reason for the treatment.

4. Tribunals must nevertheless protect against the doctrine undermining whistleblower protection. Blameless or ordinarily unreasonable conduct makes a separate explanation less likely and requires especially close and sceptical scrutiny. Upset and criticism inherent in whistleblowing will rarely be genuinely separable. The manner of disclosure is generally part of the disclosure unless it has a particular distinct feature, such as accompanying racist abuse.

5. There was no inconsistency between the findings concerning detriment and dismissal. Different decision-makers took the respective decisions. The tribunal therefore had to identify their reasons separately and assess separability discretely. The Head of Legal reacted partly to the substance of the disclosures, whereas the dismissal decision-makers were found to have acted because of the claimant’s explicit personal criticism and perceived insensitivity.

6. The tribunal carefully scrutinised the Bank’s evidence and reached a conclusion open to it. The perversity challenge fell far short of the required standard. Elisabeth Laing and Underhill LJJ agreed with Simler LJ.

1. Court of Appeal (Civil Division): Dismissed the appeal and upheld the rejection of the automatic unfair dismissal claim: [2022] EWCA Civ 941 .
2. Employment Appeal Tribunal: HHJ Auerbach dismissed the appeal against the tribunal’s rejection of the automatic unfair dismissal claim. No neutral citation is stated.
3. Employment tribunal: Held that the claimant was ordinarily unfairly dismissed but rejected the automatic unfair dismissal, protected-disclosure detriment and wrongful-dismissal claims. The material detriment claim was time-barred.