Dismissal For Questioning A Colleague's Competence In Connection With A Protected Disclosure Was Not Automatically Unfair

• Published date: 23 March 2022
• Subject Matter: Employment and HR, Unfair/ Wrongful Dismissal, Employee Rights/ Labour Relations
• Law Firm: Herbert Smith Freehills
• Author: Ms Anna Henderson

Dismissal is automatically unfair where the principal reason for the dismissal is a protected disclosure. Where employers take exception to the way in which a claimant makes their disclosure, or the surrounding conversations or conduct, the key issue becomes whether this can properly be separated, as the reason for dismissal, from the disclosure itself. If it can, the dismissal will at most be ordinarily unfair and claims subject to a cap on compensation and the two year service requirement; if not, uncapped compensation for automatically unfair dismissal can be awarded to claimants from day one of their employment.

The recent EAT decision in Kong v Gulf International Bank is helpful to employers on this issue (although note that permission to appeal has been sought). The EAT upheld a tribunal decision that the inappropriate manner in which an employee criticised a colleague, in relation to the subject matter of a protected disclosure, could properly be separated from the protected disclosure itself as the reason for dismissal.

The claimant, who was employed as Head of Financial Audit, disclosed concerns about the drafting of a legal template, which amounted to protected disclosures. The Head of Legal had been responsible for the template and disagreed with those concerns; discussions between her and the claimant resulted in her forming the view that the claimant was impugning her professional integrity. She complained to the Head of HR and CEO, indicating that she was very upset and suggesting she could not continue working with the claimant. They dismissed the claimant because of what they considered to be an unacceptable personal attack on the Head of Legal's abilities, reflective of a wider problem with interpersonal skills. This conduct reason for dismissal was connected but properly distinguishable from the protected disclosure. The claimant's concerns about the legal template were separable from the question of how that state of affairs had come about, who was responsible for it, and whether they were deserving of any form of criticism in that regard. The criticism of the Head of Legal was not a necessary part of the disclosure and taking issue with those critical comments was not the same...