Will Young and Courtney Step-Marsden instructed in “Whistleblowing” case to appear in the Court of Appeal re: Kong v Gulf International Bank (UK) Ltd

Will Young and Courtney Step-Marsden are instructed (by Didlaw) on behalf of the Appellant (the Claimant) in an appeal concerning automatic unfair dismissal for “whistleblowing”. This will be held on Thursday 26th May in the Court of Appeal.

Will Young and Courtney Step-Marsden are instructed on behalf of the Appellant (the Claimant) in an appeal concerning automatic unfair dismissal for “whistleblowing”. More specifically, the case concerns the extent to which an employer can legitimately dismiss a whistleblowing employee for conduct associated with her protected disclosures without it being found that the disclosures are the reason for dismissal.

Ms Kong, Head of Financial Audit for the Respondent international bank, made protected disclosures in the course of her employment. She was subsequently dismissed by reason of her conduct in making the disclosures, specifically because she had called into question the professional awareness of a colleague, the Head of Legal, in doing so.

She won her claim of “ordinary” unfair dismissal in the Employment Tribunal, but her claim for automatic unfair dismissal pursuant to section 103A of the Employment Rights Act 1996 was dismissed on the grounds that she was dismissed not because of her protected disclosures, but because of her conduct in questioning her colleague’s professional awareness. The Tribunal held that this conduct was properly separable from the disclosures themselves.

An appeal to the Employment Appeal Tribunal was unsuccessful, but the Appellant appeals again to the Court of Appeal, which will hear the appeal on Thursday 26^th May 2022. The case will be heard before Lord Justice Underhill, Lady Justice Simler, and Lady Justice Laing.

The Appellant argues that the Employment Tribunal made inconsistent findings of fact, having found that the Claimant’s conduct was not separable from her protected disclosures in the context of her detriment claim under section 47B ERA (which was dismissed on limitation grounds). Also, that the Tribunal came to a conclusion on “separability” that was not open to it on the facts it had found.

Protect, the whistleblowing charity, have been given permission to intervene in the appeal.

The case may provide further guidance on the important issue of the extent to which employers can legitimately separate out a whistleblowing employee’s conduct in making protected disclosures from the disclosures themselves.

To access the Court of Appeal’s Room 71 YouTube Channel, where a livestream will be available, click here.
The livestream of this hearing is available here:

Find out more:

Will Young‘s practice is divided primarily between personal injury, clinical negligence and employment.

His personal injury practice increasingly consists of catastrophic brain and spinal injury cases, in which he is a well-regarded junior, working with a number of silks in chambers, and with some of the leading national firms. His cases as sole counsel involve a wide range of multi-track personal injury actions in the County Court and High Court.  He also appears at inquests, and has a particular interest in personal injury claims with a cross-border aspect to them.

His clinical negligence practice encompasses a range of claims, from surgical negligence to delayed diagnosis, acting for Claimants and Defendants.

Will also appears in the Employment Tribunal on a regular basis, representing both Claimants and Respondents, as well as in the Employment Appeal Tribunal. He is regularly instructed in multi-day discrimination, whistleblowing and unfair dismissal cases, amongst others.

Within the employment sphere Will has a particular interest in claims involving psychiatric injury, in which his personal injury practice gives him particular expertise. He has acted in a number of recent cases involving claims of significant psychiatric injury caused by discrimination at work, and his personal injury experience assists him to bring to this work both particular expertise and sensitivity towards often very vulnerable Claimants.

To find out more, contact Paul Barton on +44 (0)20 7427 4907 or Ben Fitzgerald on +44 (0)203 758 4759 for a confidential discussion.

Courtney Step-Marsden accepts instructions across all of Chambers’ areas within the health and business departments.

Her core areas of practice include Employment Law, Pensions, Court of Protection, Education, Personal injury and industrial disease, Clinical Negligence, International and Commercial work.

As a barrister with disabilities herself, Courtney is particularly interested in matters relating to disabilities, including disability discrimination.

To find out more, contact Sam Carter on +44 (0)203 989 6669 or Colin Bunyan on +44 (0)20 7427 4886 for a confidential discussion.

News 24 May, 2022