The Court of Appeal has recently found that an employee dismissed for the way in which they made a protected disclosure, was only entitled to unfair dismissal.
Just because she had made a protected disclosure, and the dismissal was unfair, this does not mean the dismissal was because of a protected disclosure, therefore limiting her compensation.
In the case of Kong v Gulf International Bank (UK) Ltd, the claimant was Head of Audit and made protected disclosures to the Head of Legal. The way the claimant made the disclosures, amounted to an accusation that the Head of Legal was incompetent at her job. The claimant was then dismissed as she had upset the Head of Legal by questioning her competence. The claimant then brought claims of unlawful detriment and automatic unfair dismissal for making protected disclosures.
The tribunal found that the claimant was dismissed due to her conduct, not the protected disclosures. While the dismissal was unfair, it did not follow that the dismissal was because of the protected disclosure. This meant that the claimant could not claim injury to feelings and her compensation was subject to the cap. The claimant appealed. In her view, if the dismissal was unfair, it had to be because of the protected disclosure. The EAT upheld the tribunal’s decision and she appealed to the Court of Appeal. The Court of Appeal agreed. She had been dismissed because of the manner in which she had raised the issues, i.e. conduct, not because of the protected disclosures.
This case is helpful for employers dealing with employees who have raised serious complaints in an aggressive or unreasonable manner. However, we recommend that any employer proceeds with care when disciplining an employee for the way in which they have raised a complaint, and seeks legal advice first.
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