The claimant was employed by the respondent bank as the Head of Financial Audit.  There were a number of protected disclosures made in this case largely relating to a new product being offered. She stated that the template documents used in these transactions would not be suitable. She sent this to the Head of Legal following which the Head of Legal confronted the claimant in her office. The claimant questioned the Head of Legal’s legal knowledge and awareness in the field.

The confrontation led to a complaint being made to the Head of Human Resources with the Head of Legal outlining that she felt undermined, and her professional integrity had been brought into question. The Head of Human Resources and the claimant’s line manager then decided that the claimant should be dismissed due to her behaviour and communication with colleagues.

The claimant brought a claim stating automatically unfair dismissal on the basis of protected disclosures. The EAT was mindful of the nature of the confrontation - that being that the Head of Legal (based upon the disclosures) had confronted the claimant and had walked out slamming the door.  It was also as a result of complaints from the Head of Legal that the claimant was subsequently dismissed.  The difficulty for the Tribunal was the position of the protected disclosures. There was reference to the recent judgment in Royal Mail Ltd v Jhuti where the Supreme Court outlined that if an invented reason is used for a dismissal but it was actually related to a protected disclosure then the court should be mindful of that.

At first instance, the Tribunal found that the real reason for the dismissal was the claimant’s conduct including questioning the Head of Legal’s professional awareness and skill. It may have been suggested that the Head of Legal followed it up more strongly due to the protected disclosures, but it would be wrong for motivation to be the motivation of the respondent generally. On appeal, the EAT stated that the Tribunal had come to the proper conclusion. The criticism of Head of Legal was taken into account and it was not the sort of manipulation of invention that was to be considered under Royal Mail v Jhuti. That line of thought was to apply to situations of line managerial responsibility and the Head of Legal was in a separate chain of command.  Accordingly, the case was dismissed.

Practical Lessons

This case provides a useful examination of the decision in Jhuti when it comes to protected disclosures.  This case does seem to limit the extent to which the intention of an individual should be examined vis-à-vis protected disclosures.  It seems to limit it to those in the line managerial command and this may not appreciate the cross-cutting nature of a protected disclosure in a large organisation. That being said, it does provide some protection for respondents when there is an accusation that action has only been taken against the employee because a protected disclosure has been made.
https://www.gov.uk/employment-appeal-tribunal-decisions/ms-l-kong-v-gulf-international-bank-uk-ltd-ea-2020-000357-joj-previously-ukeat-slash-0054-slash-21-slash-joj