Employment Law Coffee Break: Protected disclosures, philosophical beliefs and exclusivity clauses

Court of Appeal ruling on whether a dismissal was for a protected disclosure or the manner in which it was made

The Court of Appeal (CA) has handed down its decision in Kong v Gulf International Bank that considered whether the principal reason for a dismissal was a protected disclosure or the conduct of the employee that accompanied it – or were the two inseparable?

We looked at the background in our earlier Coffee Break and the Employment Appeal Tribunal finding that the principal reason for the employee's dismissal by the senior management team was not the making of a protected disclosure but the way in which she had conveyed those concerns to the head of legal; the employee's alleged unacceptable style of interaction had manifested itself in an incident that was found to be serious in its impact on a senior colleague and there appeared to be no prospect that the employee would change her ways.

This case is one that has understandably attracted attention given that, as noted by the CA, whistleblowing by its nature "frequently involves an individual raising concerns about wrongdoing committed by individuals, frequently colleagues, commonly working in the same workplace. It is a natural human response to be defensive and resist criticism. Not only is it likely that the subject or content of a protected disclosure will be unwelcome, the manner in which it is made, repeated or explained, may also be unwelcome, leaving individuals feeling it necessary to restate their concerns, and increasing the prospect of being perceived as an irritant or thorn in the employer's side". However, the CA went on to state that "some things are necessarily inherent in the making of a protected disclosure and are unlikely to properly be viewed as distinct from it. The upset that a protected disclosure causes is one example because for all practical purposes it is a necessary part of blowing the whistle; inherent criticism is another".

Despite the CA's seeking to draw a distinction between an individual's inherent and distinct conduct when making a protected disclosure, inevitably concerns have been raised by the claimant's representatives and Protect (intervening) that the CA's finding on the facts may deter individuals from blowing the whistle. This may occur if they are concerned that the potential reaction to their disclosure may leave them open to the argument that they do not benefit from special statutory protection (unlike under normal unfair dismissal rules, there is no qualifying service requirement to bring an unfair dismissal claim and compensation is not capped).

Whether or not whistleblowing protection applies will depend on the tribunal's evaluation of whether the reasons identified for the particular treatment "are separate from the protected disclosure, or whether they are so closely connected with it that a distinction cannot be fairly and sensibly be drawn"; "there is no objective standard against which behaviour must be assessed to determine whether the separability principle applies in a particular case, nor any question of requiring behaviour to reach a particular threshold of seriousness before that behaviour or conduct can be distinguished as separable from the making of the protected disclosure itself".

Likewise, while the decision may be welcome for employers, it can leave them in the invidious position of having to determine if poor conduct, which has arisen in the course of a protected disclosure being made, is sufficiently serious and distinct to warrant action. The CA considered that "there are likely to be few cases where employers will be able to rely on upset or inherent criticism caused by whistleblowing as a separate and distinct reason for treatment from the protected disclosure itself", but was "reluctant to say that it could never occur". It noted that "the way in which the protected disclosure is made is also, in general, part of the disclosure itself, unless there is a particular feature of the way it is made (for example, accompanying racist abuse) that makes it genuinely separable". A degree of tension or conflict seems inevitable in these situations and, therefore, great care will be needed to assess the situation on its specific facts before any action, including ultimately the dismissal of the employee, is considered.

The claimant is considering an appeal to the Supreme Court so this may not be the end of the story here.

Philosophical beliefs: what should employers be doing now?

Over the last couple of weeks, we have focused on two recent decisions dealing with philosophical beliefs and the workplace. Against the backdrop of Covid-19, political turmoil, climate change, war and a cost-of-living crisis, this is an area with which employers are going to need increasingly to grapple. For example, could a belief in catastrophic climate change manifest in an employee refusing international business travel? Could an employee's belief in ethical veganism mean they won't work with certain clients or wear a specific uniform or use a kitchen with those not sharing their beliefs?

The Equality Act 2010 sets out nine characteristics that are protected from unlawful discrimination, one of which is a philosophical belief. Employers are increasingly needing to identify, understand, manage and balance philosophical beliefs with their business interests and, in some cases, the competing protective characteristics of other employees (where it is important not to allow specific protected characteristics to 'trump' others). It is not always easy to determine whether an employee holds a protected philosophical belief.

We discussed last week that an Employment Tribunal found a claimant who held a "gender-critical" belief that "biological sex is real, important, immutable and not to be conflated with gender identity" had suffered unlawful direct discrimination (in the respondent failing to offer her an employment contract and renew her visiting lectureship) and victimisation (in the removal of her profile from a website) due to that belief.

The week before we reported on the Employment Appeal Tribunal ruling that an individual's "belief in the truth of the Bible, and in particular, the truth of Genesis 1:27, such that 'it follows that every person is created by God as either male or female. A person cannot change their sex/gender at will. Any attempt at, or pretence of, doing so is, pointless, self-destructive and sinful'"; and a lack of belief in "transgenderism" and "gender fluidity" such that he did not believe that a person could change sex/gender, was protected.

How does an employer determine whether an employee has a protected philosophical belief?

• The belief must be genuinely held – a tribunal does not need to assess the "validity" of a belief by some objective standard, but there will need to be evidence that the belief is genuine.
• It must be a belief, not an opinion or viewpoint based on the present state of information available.
• It must be a belief as to a weighty and substantial aspect of human life and behaviour.
• It must attain a certain level of cogency, seriousness, cohesion and importance.
• It must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.

Asking the questions above may help to determine whether an employee's beliefs might be protected and, therefore, need to be factored into the employer's response to a given situation. Using these criteria, humanism, ethical veganism, a belief in catastrophic climate change, a belief that lying is always wrong and a belief in the sanctity of life – extending to an anti-fox hunting and anti-hare coursing belief – have all been held to be protected philosophical beliefs, whereas vegetarianism and fear of catching Covid-19 were held not to be protected beliefs.

Given the complexities of determining whether an employee's beliefs may be protected, employers should look for practical solutions to employee's wishes wherever possible and particularly where this has no detrimental impact on other employees or their commercial operations.

Regularly reviewing policies and procedures to ensure that they do not disadvantage those with particular beliefs is good practice as well as raising awareness through training and campaigns among the wider workforce – with managers needing specific awareness of what issues may arise with their team members.

Policies relating to recruitment, promotion, dress codes, flexible working, holiday, discipline and grievance, diversity and inclusion, and any code of conduct will all be important to review. With disputes relating to philosophical beliefs often in the public arena and capturing the attention of wider audiences, it is important that all employers have an awareness of what a philosophical belief is and how to support employees manifesting them (reasonably) in the workplace.

Ban on exclusivity clauses in employment contracts

Following the government's previous announcement that it planned to widen the ban on exclusivity clauses to give the UK's lowest paid workers the opportunity to boost their income and choose to work multiple jobs, draft regulations have now been laid before parliament.

The regulations widen the ban on exclusivity clauses to contracts where the guaranteed weekly income is on or below the lower earnings limit of £123 a week, and will make unenforceable any contractual term that prohibits a worker from doing work or performing services under another contract or arrangement or which prohibits a worker from doing so without their employer's consent. Where an individual breaches an exclusivity clause in their contract, employees will be protected from unfair dismissal (no qualifying period of service will apply) and workers will be protected from detriment (with a tribunal able to award compensation it considers just and equitable up to an amount equal to the unfair dismissal basic and compensatory award).