Pinnington v Swansea City & County & Anor

The Court considered applications for permission to appeal from an Employment Appeal Tribunal decision which had allowed in part an appeal against an Employment Tribunal. The central legal questions were (1) whether the reason for dismissal was that the claimant had made a protected disclosure under the amendments to the Employment Rights Act 1996 effected by the Public Interest Disclosure Act 1998 (section 103A); and (2) whether the claimant suffered detriment for making a protected disclosure (section 47B).

The court endorsed the established approach to identifying the "reason for dismissal": it is a question of fact referring to the employer's beliefs or facts known to it (Abernethy; Devis & Sons), and not an inquiry into unconscious motives as in discrimination cases. Having found that the Employment Tribunal's factual finding that the principal reason for dismissal was incapacity through ill health was open to it, and that the employer's investigations and procedures lay within the band of reasonable responses, the applicant's permission to appeal was refused. The court granted the respondents permission to appeal the EAT's remittal on the limited detriment point arising from the short suspension (2–3 July 1999), finding that the remittal was arguable and that the Tribunal had concluded there was no detriment.

Background and parties. The appellant (the applicant below) was a school nurse at a special school. She raised concerns about alleged non-resuscitation practice and confidentiality, was suspended and thereafter dismissed after prolonged sickness and a capability procedure. She brought claims for unfair dismissal, wrongful dismissal and detriment arising from making protected disclosures. The Employment Tribunal dismissed her claims. The Employment Appeal Tribunal allowed part of her appeal but dismissed the remainder.

Nature of the claim / relief sought. The applicant sought to establish that her dismissal was automatically unfair because the reason or principal reason was that she had made a protected disclosure (new section 103A of the Employment Rights Act 1996) and that she had suffered detriment because she had made protected disclosures (section 47B).

Procedural posture. The Court of Appeal considered competing applications for permission to appeal from the EAT decision (EAT decision dated 28 May 2004, sealed 8 June 2004).

Issues framed by the court. (i) What is the correct approach to identifying the "reason" for dismissal under the Employment Rights Act 1996 and section 103A; (ii) whether the Employment Tribunal should look behind incapacity due to ill health to the employer's role in causing that ill health except in exceptional cases (for example malice or wilful harm); (iii) whether the Tribunal adequately examined the reasonableness of the employer's investigations and procedures; (iv) whether a short suspension (2–3 July 1999) could amount to detriment if done because of a protected disclosure and whether the EAT erred in remitting that question to the Tribunal.

Court's reasoning. The court accepted that the question of reason for dismissal is a question of fact about the employer's state of mind or facts known to them (citing Abernethy and Devis & Sons) and rejected the submission that the tribunal must probe subconscious motivation in the manner of discrimination jurisprudence. The Employment Tribunal's finding that the principal reason was capability due to ill health was a factual finding open to it and not susceptible to interference. Once a potentially fair reason (ill health) is identified, the statutory test is whether the dismissal was fair in all the circumstances; that inquiry normally proceeds by reference to the band of reasonable responses available to an employer. The court accepted that where an employer has caused ill health by malicious or wilful conduct there may be exceptional cases (Edwards), but such instances are rare. The court found the LEA's investigations to be detailed and within the range of reasonable inquiries and saw no arguable error in the Tribunal's conclusions, so the applicant's permission was refused. By contrast, the court considered arguable the respondents' complaint that the EAT should not have remitted the short-dated detriment issue to the Tribunal given the Tribunal's finding of no detriment and therefore granted the respondents permission to appeal that point.

Practical note. The court urged the parties to consider settlement given the likely disproportionate costs of further litigation on the narrow detriment point.

The Court refused the applicant's application for permission to appeal and allowed the respondents' application for permission to appeal. Rationale: the Employment Tribunal's factual finding that the principal reason for dismissal was incapacity through ill health was open to it; the tribunal had properly applied the band of reasonable responses test and reasonably reviewed the employer's investigations. However, the EAT's remittal on the short-period detriment issue was arguably erroneous, so respondents were granted permission to appeal that point.

Appeal from the Employment Appeal Tribunal decision dated 28 May 2004 (sealed 8 June 2004) which itself followed an Employment Tribunal hearing that dismissed the claimant's unfair dismissal, wrongful dismissal and detriment claims. Permission applications heard by the Court of Appeal resulted in refusal of the applicant's permission and grant of permission to the respondents.