Pinnington v City & County of Swansea & Anor

The Court of Appeal considered whether the claimant had a cause of action under section 47B of the Employment Rights Act 1996 (as inserted by the Public Interest Disclosure Act 1998) for suffering "detriment" on the ground that she had made a protected disclosure. The court held that an essential ingredient of that cause of action is that the act, or deliberate failure to act, which caused the detriment must have occurred after the statutory provisions came into force (2 July 1999). The Employment Tribunal had found the claimant's suspension dated from 2 July 1998, that any relevant period of detriment was limited to 2 and 3 July 1999, that the claimant was absent because of ill health during those two days, and that there was no employer conduct that was malicious or inappropriate and any detriment was de minimis. The Court of Appeal allowed the employer's appeal on the ground that there was no evidence of any act or deliberate failure to act by the employer after 2 July 1999 capable of constituting detriment under section 47B.

Background and parties:

• The claimant, Mrs Bernice Pinnington, was employed as a school nurse at Ysgol Crug Glas from 20 February 1989 until dismissal effective 3 July 1999.
• Relations with the headteacher deteriorated from 1996; the claimant made allegations about resuscitation practices and the medical room, leading to internal enquiries (1997 and 1998) which found no basis for her allegations. She was suspended on 2 July 1998 for alleged breaches of confidence and was absent from work on long-term sick leave thereafter.

Nature of the claim and relief sought:

• The claimant brought proceedings in the Employment Tribunal for unfair dismissal and for protection from detriment for making a protected disclosure under the Employment Rights Act 1996 as amended by the Public Interest Disclosure Act 1998 (Part IVA and section 47B).

Procedural posture:

• The Employment Tribunal dismissed both the unfair dismissal and protected-disclosure/detriment claims (extended reasons 23 April 2003).
• The claimant appealed to the Employment Appeal Tribunal; HHJ McMullen QC (28 May 2004) dismissed the unfair dismissal appeal but allowed the appeal on the protected-disclosure point and remitted that aspect for rehearing.
• The employer obtained permission to appeal to the Court of Appeal; the Court of Appeal heard the employer's appeal and allowed it ([2005] EWCA Civ 135).

Issues framed by the Court:

• Whether the Employment Tribunal erred in law in its handling of the protected-disclosure claim, particularly in failing to analyse Part IVA provisions such as section 43H.
• Whether the claimant had established a "detriment" under section 47B caused by an act or a deliberate failure to act by the employer occurring after 2 July 1999.
• Whether continuing or un-terminated suspension which pre-dated the effective date of Part IVA could give rise to liability by virtue of a deliberate failure to terminate it after 2 July 1999.

Court's reasoning and conclusion:

• The court emphasised the presumption against retrospective effect: the act or deliberate failure to act causing detriment must have occurred after the statutory provisions came into force on 2 July 1999.
• The Employment Tribunal had confined any possible detriment to 2 and 3 July 1999, during which the claimant was prevented by ill health from attending work; the tribunal also found no employer malice and treated any detriment as de minimis.
• The claimant did not identify any act by the employer on those dates; her case rested on an alleged deliberate failure to terminate a suspension imposed on 2 July 1998. There was no evidence before the tribunal of any deliberate failure to act in terminating the suspension once Part IVA came into force, and the employer had by then decided to dismiss the claimant; suspension would in any event have ended on dismissal.
• The court concluded there was no cause of action under section 47B because there was no act or deliberate failure to act after the provisions took effect capable of causing detriment, so the Employment Tribunal was right to reject the claim.

Appeal allowed. The Court of Appeal held that the claimant had no cause of action under section 47B because the act or deliberate failure to act alleged to have caused detriment must have occurred after the Public Interest Disclosure Act amendments took effect on 2 July 1999; there was no evidence of any such act or deliberate failure by the employer on 2 or 3 July 1999 and the Employment Tribunal was entitled to reject the protected-disclosure claim.

Employment Tribunal dismissed unfair dismissal and protected-disclosure/detriment claims (extended reasons dated 23 April 2003). Employment Appeal Tribunal (HHJ McMullen QC) dismissed the unfair dismissal appeal but allowed the appeal on the protected-disclosure point and remitted that claim for rehearing (28 May 2004). Court of Appeal allowed the employer's appeal ([2005] EWCA Civ 135, judgment 3 February 2005).