Dismissal For Criticising Colleague In Relation To Protected Disclosure Was Not Automatically Unfair

• Published date: 04 October 2021
• Subject Matter: Employment and HR, Unfair/ Wrongful Dismissal, Employee Rights/ Labour Relations
• Law Firm: Trowers & Hamlins
• Author: Ms Emma Burrows and Nicola Ihnatowicz

The Employment Appeal Tribunal (EAT) has held in Kong v Gulf International Bank (UK) Ltd that an employment tribunal's decision that an employee who was dismissed for questioning a colleague's professional competence in relation to the subject matter of a protected disclosure was not automatically unfairly dismissed.

The claimant was employed as Head of Financial Audit. In September 2018 she drafted a report raising concerns that a legal agreement governing one of GIB's new financial products was unsuitable and did not contain sufficient safeguards (the protected disclosures). She emailed the report to GIB's Head of Legal, Ms Harding, who disagreed with the claimant's view and confronted her in person. The claimant questioned Ms Harding's legal awareness of the relevant issue and Ms Harding was upset and complained to GIB's Head of HR and CEO that the claimant had criticised her professional integrity.

The Head of HR and CEO discussed the incident and formed the view that the claimant should be dismissed. They prepared a document setting out various concerns about the claimant, including the incident with Ms Harding and met the claimant's line manager to persuade him that dismissal was the correct course of action. He agreed, and she was dismissed. The dismissal letter specifically referred to the claimant's having questioned Ms Harding's integrity which was described as falling "well short of the standard of professional behaviour" expected. The claimant brought claims which included a claim for unlawful detriment and automatic unfair dismissal for having made protected disclosures.

The claim for unlawful detriment was held to be out of time, and the claim for automatic unfair dismissal failed. The tribunal accepted that Ms Harding's complaint about the claimant's behaviour was motivated by the protected disclosures and that the complaint was a material part of the reason why the claimant was dismissed, but it found that the...