Ling Kong v Gulf International Bank (UK) Limited

The Court of Appeal dismissed the employee's appeal against the Employment Tribunal's finding that her dismissal was for conduct rather than for making protected disclosures. The tribunal had found that the Head of Legal subjected the claimant to a detriment that was materially influenced by her protected disclosures (section 47B ERA), but that the principal reason for dismissal was the claimant's conduct in questioning the Head of Legal's professional awareness/integrity, a matter found to be separable from the protected disclosures for the purposes of section 103A ERA. The court held that the separability enquiry is a factual one to be carried out in relation to each relevant decision-maker and that the tribunal had properly applied the authorities (including Martin, Fecitt, Lyon and Bass Taverns) and the principles in Jhuti where relevant.

Background and procedural history:

• The claimant, employed as Head of Financial Audit, raised a number of concerns about a standard Master Risk Participation Agreement being used for non-bank counterparties (the MRPA). She made verbal and written protected disclosures in October 2018. The Head of Legal reacted strongly; subsequently the claimant was summarily dismissed on 3 December 2018.
• The claimant brought claims in the employment tribunal for ordinary unfair dismissal (section 98 ERA), automatic unfair dismissal for protected disclosure (section 103A ERA), detriment for having made protected disclosures (section 47B ERA), and wrongful dismissal. The tribunal (London Central, reserved judgment 2 March 2020) found ordinary unfair dismissal but rejected the protected-disclosure detriment and automatic unfair dismissal claims (the detriment complaint against the Head of Legal was found to be materially influenced by the protected disclosures but time-barred). The Employment Appeal Tribunal (HHJ Auerbach) dismissed the claimant's appeal (reserved judgment 10 September 2021).
• The claimant appealed to the Court of Appeal, which heard argument (including intervention by Protect) and handed down judgment on 8 July 2022.

(i) Nature of the claim/application:

• The appeal focused on whether the tribunal was wrong to treat the claimant's conduct in impugning the Head of Legal's competence/awareness as separable from her protected disclosures when deciding the principal reason for dismissal under section 103A ERA.

(ii) Issues framed by the court:

• Whether the tribunal applied inconsistent or erroneous tests of separability between the detriment and dismissal claims, such that a finding of inseparability for the detriment claim should have required that the protected disclosures be treated as the principal reason for dismissal.
• Whether, on the facts found, it was open to the tribunal to conclude that the conduct relied upon by the employer was genuinely separable from the protected disclosures.

(iii) Court's reasoning and conclusions:

• The Court of Appeal reviewed authority across related fields (trade union activities, victimisation and whistleblowing) and confirmed that the separability enquiry is a factual exercise directed to the reason in the mind of the relevant decision-maker. The separability label is not a freestanding legal rule that automatically deems reasons to be the same or different.
• The court held that tribunals must consider, in relation to each impugned act/decision, what motivated the specific decision-maker(s). Different decision-makers may have different reasons; consequently, findings of separability in relation to one decision (detriment by the Head of Legal) do not automatically determine separability in relation to another decision (dismissal by senior management).
• Although the tribunal found that the Head of Legal's conduct was materially influenced by the protected disclosures (detriment), it also carefully examined the minds of the dismissal decision-makers (Mr Mohammed, Ms Garrett-Cox and Ms Yates) and concluded that they were motivated by the claimant's perceived inappropriate conduct in questioning the Head of Legal's competence/awareness. That factual conclusion was open to the tribunal and not perverse.
• The court therefore dismissed the appeal, emphasising that employers cannot rely generally on upset or inherent criticism caused by a disclosure as a separate justification for detriment, but that each case must be decided on its facts.

Appeal dismissed. The Court of Appeal held that the tribunal had correctly carried out the factual separability enquiries in respect of the detriment and dismissal decisions, applying relevant authorities. Different decision-makers had different reasons and the tribunal was entitled to find that the principal reason for dismissal was the claimant’s conduct in impugning a senior colleague’s competence/awareness rather than the making of the protected disclosures.

Employment Tribunal (London Central) reserved judgment 2 March 2020; Employment Appeal Tribunal (HHJ Auerbach) dismissed claimant's appeal (reserved judgment 10 September 2021); Appeal to Court of Appeal (this judgment) [2022] EWCA Civ 941, judgment handed down 8 July 2022.