Pinnington v Swansea City & County & Anor

In an ill-health dismissal case, the reason for dismissal is the set of facts known to the employer, or beliefs held by it, which caused the dismissal. Identifying that reason is a question of fact. The tribunal need not investigate the underlying cause of the employee’s illness as a separate issue. Employer conduct may nevertheless affect fairness, particularly where it caused or contributed to the incapacity, or where malice or wilful harm is alleged. The central question remains whether dismissal was fair in all the circumstances. In assessing fairness, the tribunal asks whether the employer acted within the band of reasonable responses. Where allegations have been investigated, the issue is whether the investigation was reasonable, not whether it reached the correct conclusion.

The applicant, a school nurse, was suspended and later dismissed after prolonged sickness absence caused by anxiety and stress. She brought claims for unfair dismissal, wrongful dismissal and detriment for making protected disclosures concerning alleged non-resuscitation practices at the school.

The Employment Tribunal dismissed her claims. The Employment Appeal Tribunal upheld the dismissal finding but directed reconsideration of the non-dismissal detriment issue. Both sides sought permission to appeal aspects of the EAT’s decision. The Court of Appeal considered the correct approach to identifying the reason for an ill-health dismissal, the relevance of the underlying cause of illness, the adequacy of the tribunal’s findings and investigations, and whether the detriment issue should be remitted.

1. Applicant’s application. The application for permission to appeal was refused. The Employment Tribunal correctly treated the reason for dismissal as the applicant’s persistent ill health and consequent incapability. Under Employment Rights Act 1996, the relevant inquiry is the reason or principal reason which caused the employer to dismiss. That is a question of fact. The proper approach is that stated in Abernethy v Mott, Hay and Anderson [1974] ICR 323 and approved by the House of Lords in Devis & Sons v Atkins [1977] AC 931: the reason consists of facts known to the employer or beliefs held by it which caused the dismissal.
2. Discrimination authorities concerning conscious or subconscious motivation did not require an inquiry into unconscious motivation in an unfair-dismissal case. Once a potentially fair reason is established, the issue is whether the dismissal was fair in all the circumstances. Even where the employer caused or contributed to the illness, its conduct is relevant to the fairness assessment rather than ordinarily requiring a separate investigation into the illness’s underlying cause. Cases in which past employer treatment makes dismissal unfair are exceptional, including cases involving malice or wilful harm.
3. The band of reasonable responses applies to ill-health dismissals. A tribunal need determine only facts necessary to its decision. Where allegations are made, it must assess whether the employer conducted a reasonable investigation, not whether the allegations were true or whether the investigation reached the correct conclusion. The investigations here were lengthy, detailed and within the range reasonably open to the employer. The Tribunal gave adequate reasons, and its findings were neither erroneous in law nor perverse.
4. Respondents’ application. Permission to appeal was granted on the non-dismissal detriment issue. The EAT had arguably erred by remitting the case to determine whether the disclosures were protected when the Employment Tribunal had found no detriment during the relevant two days. The point was properly arguable, although the court strongly encouraged settlement because the likely costs of further litigation would greatly exceed anything at stake.

• Court of Appeal (Civil Division): Permission to appeal the EAT’s decision was refused on the applicant’s challenges to the ill-health dismissal findings and granted to the respondents on the non-dismissal detriment issue: [2004] EWCA Civ 1180.
• Employment Appeal Tribunal: By decision dated 28 May 2004, sealed 8 June 2004, the EAT allowed part of the applicant’s appeal against the Employment Tribunal and dismissed the remainder.
• Employment Tribunal: The applicant’s claims for unfair dismissal, wrongful dismissal and detriment for protected disclosures were dismissed.