Cavendish v Greater Manchester (South) Ltd (t/a Stagecoach Manchester)

The Employment Tribunal found that the claimant had made qualifying disclosures within the meaning of the Employment Rights Act 1996 (section 43B(1)(d)) but that his dismissal was not because of those disclosures and so was not automatically unfair under section 103A. The Tribunal found the dismissal unfair under section 98 because the employer did not undertake a reasonable enquiry into alleged misconduct or address the medical/capacity issues before dismissing the claimant. The Tribunal applied the Polkey principle and concluded that, although dismissal was unfair, the claimant would in any event, on the facts, have been dismissed after a period of about four months; accordingly compensatory losses were limited to four months. The EAT dismissed the claimant’s appeal and the Court of Appeal (Wall LJ) refused permission to appeal on the ground that no error of law was shown and the crucial issues were questions of fact for the Tribunal.

Background and parties: The appellant, a bus driver employed by the respondent from 1998 to 2001, claimed he had been unfairly dismissed and that the dismissal was automatically unfair as a result of protected disclosures about vehicle roadworthiness and safety.

Procedural history: The Employment Tribunal (Manchester) heard the claim, found qualifying disclosures had been made but rejected automatic unfair dismissal; it held dismissal was unfair under section 98 and assessed remedy applying the Polkey principle. The claimant appealed to the Employment Appeal Tribunal (HH Judge McMullen QC), which dismissed his appeal on 29 June 2005. The claimant then sought permission to appeal to the Court of Appeal; that application was refused by Wall LJ on 19 December 2005.

Nature of the claim / relief sought: The claimant sought a finding of automatic unfair dismissal for making protected disclosures and ordinary unfair dismissal relief (remedy/compensation) under the Employment Rights Act 1996.

Issues framed: (i) whether qualifying disclosures had been made and, if so, whether they were the reason or principal reason for dismissal (automatic unfair dismissal under section 103A); (ii) if not, whether the dismissal was potentially fair as a conduct dismissal and, if not, whether the employer acted within the band of reasonable responses (section 98); (iii) whether remedy should be reduced under Polkey because the claimant would, in any event, have been dismissed later; (iv) procedural fairness and alleged bias and case management complaints.

Court’s reasoning: The Tribunal heard extensive evidence and made detailed findings of fact: it accepted that qualifying disclosures were made but concluded the principal reason for dismissal was the employer’s belief the claimant would not comply with instructions to return to work. The Tribunal held that belief was honestly held but unreasonable because the employer failed to obtain up-to-date medical advice and to separate medical/capacity issues from conduct before dismissing. The Tribunal therefore found unfair dismissal under section 98. Applying Polkey, it concluded that on the evidence a reasonable employer would, after medical enquiry and attempts to manage the relationship, have reached an impasse and dismissed the claimant within four months; accordingly compensatory loss was limited to that period. The EAT rejected challenges to case management, bias and causation, treating the contested matters as factual findings. Wall LJ refused permission to appeal because no error of law was established and the core issues were factual assessments within the Tribunal’s remit.

Permission to appeal to the Court of Appeal was refused. Wall LJ held that the Employment Tribunal’s findings were factual and open to it, that the Tribunal had correctly applied the law (including the tests in section 98 and the Polkey principle), and that the EAT had correctly dismissed the claimant’s appeal. No error of law was shown that would justify further appellate review.

The claim was heard by the Employment Tribunal (Manchester), which issued a reserved judgment on 1 March 2005 finding unfair dismissal (not automatic whistle-blowing dismissal) and directing a limited compensatory award under Polkey. The appellant appealed to the Employment Appeal Tribunal; HH Judge McMullen QC dismissed the appeal on 29 June 2005 and refused permission to appeal. The appellant’s application for permission to appeal to the Court of Appeal was heard by Wall LJ on 14 October 2005 and permission was refused on 19 December 2005 ([2005] EWCA Civ 1555).