The claimant was employed as the Head of Financial Audit with the respondent bank. The claimant made a number of protected disclosures to the legal department which led to altercations between the claimant and the Head of Legal. This led to the claimant being dismissed upon which she brought a claim alleging automatic unfair dismissal based upon the protected disclosures that she had made. The EAT (as covered HERE in a previous case review) dismissed the claim and the claimant decided to appeal to the Court of Appeal. 

In terms of the main issue it related to the ‘separability principle’ between the protected disclosures made by the claimant and her conduct. The Court of Appeal outlined that where there was a protected disclosure and conduct after that disclosure then it fell to the Tribunal to be able to recognise a distinction between the two as to how a decision was made (in this case, the decision to dismiss). The Court of Appeal stated that the separability principle was not a rule of law but rather it was for the finder of fact (the Tribunal) to determine whether the reasons identified were separate from the protected disclosure itself. Indeed, it was held that without such a principle it would, in effect, give whistleblowers an element of immunity for bad behaviour which may arise following a protected disclosure.  

The claimant relied upon the decision of Martin v Devonshires Solicitors [2011] in which it was held that the Tribunal should be ‘slow’ to allow distinctions between protected disclosures and ordinary unreasonable behaviour. However, the Court of Appeal stated that it was not a rule of law and there was no precedent upon which there was a threshold set for making a distinction in that type of situation. As a result of this, the claimant’s appeal was refused. 

Practical Lessons

he Court of Appeal provides a useful examination of when the Tribunal should separate matters out between protected disclosures and other behaviour.  This is important to allow an employer some room in which they can take action against an employee for misconduct which is separate to a protected disclosure that they have given. The Court of Appeal did acknowledge that whistleblowers need to have proper protection stating that the legislation does provide that.  However, that protection cannot be absolute in situations where there is separate conduct and it has to be acted upon.  
https://littletonchambers.com/wp-content/uploads/2022/07/Kong-v-Gulf-International-Bank-UK-Limited-2022-EWCA-Civ-941.pdf 

The 2021 EAT decision can be found here: 
https://www.legal-island.com/articles/uk/case-law/2021/september/kong-v-gulf-international-bank-uk-ltd-2021/