Implications of the Court of Appeal's Judgment in Kong
Updated: Aug 11, 2022
A seemingly narrow distinction between the making of a whistleblowing disclosure and the manner in which it is made has been drawn by the Court of Appeal in its judgment in the case of Kong v Gulf International Bank (UK) Limited. Senior Auditor Ms Kong raised a number of qualifying protected disclosures about unsuitable legal documentation, including to the Head of Legal Ms Harding. This resulted in a disagreement between the two which was followed by Ms Kong's dismissal.
At first instance the Employment Tribunal found that the real reason for Ms Kong's dismissal was her conduct in questioning Ms Harding's professional awareness and competence rather than the protected disclosures themselves. This view was upheld at Employment Appeals Tribunal and the Court of Appeal dismissed the further appeal, agreeing that although Ms Kong had been a responsible whistleblower and the dismissal was unjustified, the disclosure had been made in an unreasonable manner and the employer was therefore reasonable in distinguishing this from the protected disclosures themselves.
In reality raising whistleblowing concerns is often a challenging and highly emotive thing, both for the whistleblower and for the employer receiving those concerns, and it frequently culminates in relationship breakdowns. An employer must of course be able to act on unacceptable behaviour, although critics of the judgment such as charity 'Protect' feel it causes uncertainty for whistleblowers and undermines the protections set out in the Public Interest Disclosure Act 1998 which aims to encourage responsible whisteblowing. The judgment made clear that in practice there may be few cases where employers can rely on these narrow distinctions.
If you need advice on how to raise concerns in a way that is legally safe or on how to receive and respond to concerns raised, please get in touch.