Whistleblowing cases are always complex. This particular case demonstrates how easily a dismissal can be linked to protected disclosures, even when performance concerns exist. For HR professionals, it highlights the fine line between managing employee conduct and inadvertently retaliating against whistleblowers.
Background
Ms Kong, Head of Audit at Gulf International Bank (UK) Ltd, raised serious concerns about a financial product’s legal compliance. Shortly after voicing these concerns, she was dismissed. The employer cited difficulties in her interpersonal relationships, but Ms Kong argued that she was dismissed for whistleblowing.
Allegations:
- Unfair dismissal linked to whistleblowing (under the Public Interest Disclosure Act 1998)
Tribunal Findings
The tribunal found that while her employer justified the dismissal based on interpersonal challenges, these difficulties arose after her disclosures. The Court of Appeal later confirmed that an employee’s manner when making a disclosure cannot be separated from the act of whistleblowing itself if it is used as a reason for dismissal.
HR Key Takeaways
For HR teams, whistleblowing cases demand meticulous handling. Even when there are valid concerns about an employee’s behaviour, any action taken after a disclosure will be placed under a microscope.
Employers must be absolutely certain that disciplinary measures are based on conduct, not a thinly veiled response to whistleblowing because tribunals are rarely fooled by convenient timing.
A key misstep in this case was the absence of prior documentation regarding Ms Kong’s interpersonal skills. If there were genuine concerns about her approach, these should have been raised long before her disclosures.
Consistent performance management is the bain of HR existence.
I always always emphasise to leadership and managers that if its not written and you cannot otherwise evidence it – it didn’t happen! Any behaviour or performance related concerns MUST be documented and addressed proactively, rather than being brought up as an afterthought when things get legally uncomfortable.
Employers also need strong whistleblowing policies that give employees the confidence to speak up without fearing backlash. A culture of transparency, backed by clear processes for handling disclosures, not only fosters trust but also shields businesses from costly legal disputes.
Employees must understand how to report wrongdoing safely and have trust that their concerns will be taken seriously and investigated properly. At the end fo the day, policy is only as good as the organisation’s willingness to uphold it.
As for me, this particular case is a good reminder that whistleblowing protections aren’t just legal box ticking exercises – they are essential safeguards.
If an employee is exited from the business shortly after raising concerns, the organisation better have a rock solid evidence that the two events are entirely unrelated. Otherwise, they are looking at an expensive tribunal and a reputational headache that no amount of PR spin will fix.
hr, like it's hard? 