Pinnington v City & County of Swansea & Anor

For a detriment claim under section 47B of the Employment Rights Act 1996, the act or deliberate failure to act said to cause the detriment must occur after the protected-disclosure provisions came into force. A pre-existing suspension cannot itself found a claim where it began before that date. The claimant must identify a post-commencement act or deliberate omission by the employer. Whether conduct is capable of constituting detriment is a question of law, while whether detriment was suffered is ordinarily a question of fact for the Employment Tribunal. Where no causative act or deliberate omission is established, there is no cause of action and it is unnecessary to decide whether the alleged detriment was de minimis or whether suspension may constitute detriment.

An employment tribunal dismissed claims for unfair dismissal and detriment for making protected disclosures. The Employment Appeal Tribunal dismissed the unfair-dismissal appeal but allowed the protected-disclosure appeal and remitted that claim for rehearing.

The employer appealed to the Court of Appeal. The claimant sought permission to appeal on unfair dismissal, but permission was refused. The issue before the court was whether the tribunal had erred in rejecting the protected-disclosure claim, particularly where the alleged detriment was the continuation of a suspension imposed before Part IVA of the Employment Rights Act 1996 came into force.

1. Appeal allowed. The Employment Tribunal was right to reject the protected-disclosure claim, although the Court of Appeal reached that conclusion on a different basis from the tribunal.
2. Section 47B required the claimant to establish detriment caused by an act or deliberate failure to act by the employer, on the ground that she had made a protected disclosure. The disclosure could have been made before the statutory provisions came into force, but the causative act or deliberate omission had to occur afterwards. Applying the general presumption against retrospectivity, conduct lawful when undertaken could not become unlawful merely because of later legislation.
3. The claimant could not rely on the suspension imposed on 2 July 1998. The alleged post-commencement omission was the employer’s failure to terminate it on 2 July 1999. The evidence disclosed no such deliberate failure. In context, the employer had already decided to dismiss the claimant for capability related to ill-health, and the suspension would expire automatically on dismissal. There was no realistic basis for inferring a deliberate omission capable of causing detriment.
4. It was unnecessary to determine whether a two-day suspension could constitute detriment. The tribunal’s alternative conclusions that there was no detriment, or that any detriment was de minimis, therefore did not require decision.
5. The Employment Appeal Tribunal had identified no question of law justifying the remission of the claim. The appeal was allowed, with the normal order for costs; the respondent was ordered to pay the appellants’ costs, excluding costs incurred at the earlier permission hearing.

• Employment Tribunal: dismissed the claims for unfair dismissal and protected-disclosure detriment.
• Employment Appeal Tribunal: on 28 May 2004, dismissed the unfair-dismissal appeal but allowed the appeal on protected disclosure and remitted that claim for rehearing.
• Court of Appeal (Civil Division): refused permission to appeal on unfair dismissal and allowed the employer’s appeal on protected disclosure. The tribunal’s rejection of that claim was restored.