Read on for our monthly digest for employers on upcoming employment law changes and key employment cases that have recently been decided.
Kong v Gulf International Bank (UK) Ltd
The claimant, Ms Kong, was the Head of Financial Audit at Gulf International Bank (UK) Ltd.
As part of a draft audit report, Ms Kong raised certain concerns to the Bank’s Head of Legal (Ms Harding, among others at the organisation. These concerns were accepted to amount to protected disclosures.
The Head of Legal confronted Ms Kong in person about the issues she had raised. A heated discussion ensued, with Ms Kong questioning the Head of Legal’s legal knowledge.
Following the verbal exchange, Ms Kong emailed her manager restating her concerns and advising that Ms Harding had failed to address the concerns and instead, had become agitated towards her. Meanwhile, Ms Harding complained to the Head of HR and the CEO, alleging that Ms Kong had impugned her professional integrity, suggesting she could no longer work with Ms Kong.
The CEO and Head of HR took the decision to summarily dismiss Ms Kong because of her behaviour, manner and approach. They outlined their reasons in a written document, citing the incident with Ms Harding as well as nine other incidents, which they contended showed Ms Kong “had little emotional intelligence when dealing with colleagues”, was “dogmatic in her approach” and that her “ability to listen and build relationships with colleagues is limited”. The letter also stated specifically that the dismissal was not connected to the protected disclosures she had made.
Ms Kong brought claims for unfair dismissal, automatic unfair dismissal for making protected disclosures, whistleblowing detriment, and wrongful dismissal.
At first instance, the tribunal found that the claimant was unfairly dismissed, but found against her in relation to the protected disclosure automatic dismissal and wrongful dismissal claims. The tribunal drew the distinction that the principal reason for the dismissal was her conduct and questioning the competence of Ms Harding, and not the fact that she had made protected disclosures.
The claimant appealed against this distinction.
The EAT and the Court of Appeal both upheld the tribunal’s decisions and rejected the appeals.
The Court of Appeal stated that it is allowable to distinguish between the act of making the protected disclosure and how the disclosure was in fact made – ie what Ms Kong did and how she did it were genuinely separable. The Tribunal was correct to determine the grounds considered by the decision makers at the time of deciding to dismiss which, on the facts, related to Ms Kong’s conduct as the reason for her dismissal.
The decision indicates the breadth of scope when considering the separability issue. In reality, whistleblowing can result in challenging, uncomfortable discussions, but employers should note that this decision does not pave the way to take disciplinary action simply because an employee has created tension or conflict due to making protected disclosures. In this case, there were prior conduct issues relied on as grounds for the dismissal. Employers should still proceed with caution to ensure they are acting lawfully in relation to whistleblowing.
Religion and belief discrimination
Bailey -v- Stonewall Equality Ltd and others
Workers are protected from discrimination in the workplace based on religious affiliation and philosophical beliefs. But are workers allowed to express gender critical beliefs on social media at work?
This latest decision comes after the June 2021 EAT ruling that holding gender-critical beliefs is a protected philosophical beliefs and earlier this year, in Forstater, the employment tribunal ruled that a worker’s expression of gender-critical beliefs on social media was protected and not easily dissociable from the belief itself.
In this latest case dealing with workers’ rights to hold and express gender critical beliefs, the tribunal considered whether the claimant was subjected to unlawful discrimination and victimisation due to her gender critical beliefs.
The claimant, Ms Bailey, was a barrister at Garden Court Chambers (GCC). In 2018, GCC signed up to Stonewall’s diversity champions’ scheme. In response, Ms Bailey emailed all members of GCC to object to the association, stating extensively her reasoning for her position. While some concerns were raised by a small number of GCC’s members, no formal action was taken against Ms Bailey.
Ms Bailey is an active Twitter user and in 2019 posted a number of tweets commenting on trans rights and ‘trans extremism’ issues. GCC then received comments on its website about Ms Bailey’s tweets and one member of GCC made a complaint about her social posts.
Following a tweet posted by Ms Bailey in October 2019, GCC publicly announced on Twitter an investigation was being launched into Ms Bailey’s tweets. Stonewall’s Head of Trans Inclusion also complained to GCC about a number of Ms Bailey’s tweets.
GCC’s investigation concluded that two of Ms Bailey’s tweets were likely to breach the Bar Standards Board Code.
Ms Bailey brought various claims of discrimination and harassment against GCC and Stonewall.
The employment tribunal held that Ms Bailey held various ‘protected’ beliefs in relation to her gender-critical beliefs as well as her views about Stonewall’s campaigning on gender theory and self-id reforms. It also held that GCC had subjected her to direct discrimination based upon her protected gender-critical philosophical beliefs when it publicly tweeted that it would launch an investigation and upheld the complaint by Stonewall about her tweets.
Further, GCC had victimised the claimant in relation to various tweets, because these amounted to the manifestation of her protected gender-critical beliefs.
However, the indirect discrimination claims, and her claim that Stonewall had instructed, caused or induced the discrimination by GCC, were rejected.
Ms Bailey was awarded £22,000 as damages for injury to feelings, including £2,000 aggravated damages.
This decision is notably broader than that in Forstater, since Ms Bailey’s protected philosophical beliefs were deemed to extend beyond gender-critical beliefs to also include her views about Stonewall’s campaigning on gender theory and self-id reforms. As this continues to be an emerging area and as agreement on trans and gender-critical matters may not always be forthcoming among your workforce, you must ensure that all workers are not unlawfully discriminated against on the grounds of their beliefs.
Confiscation order due to CV fraud
R v Andrewes
Lying on a cv or in job applications, where the misrepresentation results in the individual being appointed, can amount to a fraud offence.
Jon Andrewes was jailed for two years in 2017 after pleading guilty to fraud over his faked CV. He had forged qualifications, including PhDs, and lied about his professional experience; he was in fact an unqualified builder. On the basis of his misrepresentations, he had secured three different roles – as chairman of two NHS trusts and of St Margaret’s Hospice in Taunton, until his deception was uncovered.
Andrewes was investigated by the police and in 2017, he pleaded guilty to obtaining a pecuniary advantage by deception under section 16 of the Theft Act 1968 and fraud under section 1 of the Fraud Act 2006. He was sentenced to two years in prison.
The Crown sought a confiscation order against Andrewes. His net earnings during the relevant period were £643,602.91. The judge ordered confiscation of the available amount, which was agreed to be £96,737.24.
The Court of Appeal allowed Andrewes’ appeal and made no confiscation order, holding that to impose such a measure would be disproportionate. The Crown appealed.
The Supreme Court allowed the Crown’s appeal and, albeit for different reasons, it restored the confiscation order.
First, it held that it would be disproportionate to confiscate all of Andrewe’s full net earnings without making any deduction for the value of the services he had provided; this would in effect be a double confiscation. Since it is just that a confiscation order is made, on the basis of proportionality, the court should confiscate the ‘difference’ between the higher earnings obtained through fraud and the lower earnings that would have been obtained if there had been no fraud. Any profit made through this deception should be paid back.
Based on the facts, a confiscation order of £244,568 was deemed proportionate. However, given the recoverable amount was only £96,737.24, the Supreme Court held that a confiscation order to this amount was proportionate.
Under the ruling, anyone convicted of fraud for lying on their CV or in job applications about qualifications and experience could be subject to a confiscation order stripping them of their fraudulent earnings. The Supreme Court established a principled “middle way” in confiscation orders following conviction for CV fraud.
If you have a question about employment case law and the impact of tribunal and court decisions on your business, DavidsonMorris’ experienced employment lawyers can help. Working closely with our specialist human resource colleagues, we offer a holistic advisory and support service for employers encompassing both the legal and people risks of workforce management. Speak to our experts today for advice.
Last updated: 29 August 2022