What happens when concerns raised as part of the job fall on deaf ears or, worse still, upset the recipient?
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.’
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’.
[Whistleblowers] 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 their 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.
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.