Internal auditors, compliance and quality assurance professionals are there to investigate, test systems and call out wrongdoing when they see it. Being a whistleblower is baked into their job descriptions.
However, what happens when concerns raised as part of the job fall on deaf ears or, worse still, upset the recipient? This was what happened to Ms Kong, an internal auditor at Gulf Bank International, who expressed concerns to the bank’s Head of Legal, Jenny Harding, that one of the bank’s documents – a risk participation agreement – contained insufficient safeguards for institutions who were not banks.
What happened to Ms Kong?
Ms Kong’s comments were not accepted by Ms Harding and a disagreement about what should be said in the audit report ultimately led to a heated conversation, in which an employment tribunal later found that Ms Kong had questioned Ms Harding’s ‘legal awareness’. Ms Harding interpreted the conversation as an attack on her integrity, but the tribunal found that Ms Kong had not, as a matter of fact, questioned Ms Harding’s professional integrity as she had not questioned her honesty or her principles.
Ms Kong followed up the conversation with an email to clarify matters stating she had no intention to hurt Ms Harding and had no concern about her professional integrity. However, Ms Kong insisted that if she had raised the matter in her final audit report the reader might raise a question about ‘professional awareness’.
Ms Kong's line manager decided that her email was unacceptable as she had questioned Ms Harding's 'legal awareness'. This sealed Ms Kong's fate as despite a history of good appraisal ratings, management decided that Ms Kong lacked 'emotional intelligence' when dealing with colleagues (which had been raised with her previously). Whilst her contribution to the audit function was perceived to be of high quality, her 'ability to listen and build relationships with colleagues was limited.' Ms Kong's employment was terminated as her behaviours, manner and approach had resulted in 'people not wanting to work with her.'
Ms Kong brought proceedings in respect of whistleblowing detriment and dismissal. The detriment claim succeeded but was out of time. Ms Kong failed however to convince the tribunal that she had been dismissed because of the disclosures she had made. It found that it was her conduct that led to her dismissal and the serious impact it had had on Ms Harding. She appealed unsuccessfully to the Employment Appeal Tribunal and then, to the Court of Appeal, with the support of the whistleblowers’ charity, Protect.
The Court of Appeal was tasked with examining what has been called the ‘separability principle’: whether it is possible to separate out the making of a protected disclosure itself from other features or the manner or context in which it is made. Clearly whistleblowers cannot be immune from the consequences if they engage in abusive, offensive, malicious or irresponsible behaviour. A whistleblower who hacks their employer’s computer systems to demonstrate their vulnerability to attack, for example, will not have statutory protection. But how is this line to be drawn, particularly in the case of individuals whose job it is to call an organisation to account, quite possibly upsetting people in the process?
It is the tribunal's job to discern what motivated the decision maker to dismiss the employee in question – disclosure or conduct. The Court of Appeal recognised that 'this factual question is easy to state; but it can be and frequently is difficult to decide because human motivation can be complex, difficult to discern, and subtle distinctions might have to be considered'. In this case, the tribunal decided it was Ms Kong's 'lack of emotional intelligence' and 'the insensitivity in the way she communicated her criticisms to the head of legal' that were the reason for dismissal. The Court of Appeal stated that raising issues about the risk participation agreement was one thing but 'it was not necessary' for the criticism of the in-house lawyer's legal awareness 'to be spelt out'. It was found however, that "the Claimant's dismissal was wholly unfair substantively as well as procedurally".
What does this mean for individuals whose job it is to call out wrongdoing?
This leaves whistleblowers in a difficult position. They may be vulnerable to the recipients of unwelcome messages exaggerating the degree of upset they cause in the hope that this will deflect attention onto the whistleblower’s conduct rather than the unwelcome message. Protect is of the view that this judgment ‘will create uncertainty for whistleblowers and make it easier to victimise and dismiss whistleblowers’. Employers on the other hand will welcome the decision as making it easier to manage individuals who overstep the mark when raising their allegations.
The well-mannered whistleblower who blows the whistle gently and without impugning anyone's competence or integrity, focusing instead on systemic failings, may be more likely to succeed than the whistleblower who makes widespread allegations that impugn the conduct of their colleagues. On the other hand, whistleblowers who are too well-mannered may not be heeded at all. The decision suggests that even for those whose job it is to call colleagues and organisations to account may find their path to protection is as challenging to navigate as anyone else.
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