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

On an appeal from an Employment Appeal Tribunal, the Court of Appeal may intervene only for an error of law. Findings of fact, including the employer’s reason for dismissal and the assessment of a Polkey reduction, belong to the Employment Tribunal where supported by evidence. The appellate court must not substitute its own view for that of the tribunal. A tribunal may find that a dismissal was not automatically unfair because of protected disclosures, yet was procedurally unfair under the ordinary unfair-dismissal provisions. Where the tribunal’s findings were open to it and the statutory principles were correctly applied, no appeal lies merely because the claimant disputes the factual assessment or remedy.

The appellant, a bus driver, claimed that he had been automatically unfairly dismissed for making protected health and safety disclosures. The Employment Tribunal found that his disclosures were qualifying disclosures, but concluded that they were not the reason or principal reason for dismissal. It nevertheless found the dismissal unfair under Employment Rights Act 1996, section 98, because the employer had failed to investigate properly and to distinguish medical incapacity from alleged misconduct.

The Tribunal declined to reduce the basic or compensatory awards for the appellant’s conduct, but applied Polkey by limiting compensation to four months, finding that dismissal would then have occurred following a fair procedure. The Employment Appeal Tribunal dismissed the appellant’s appeal on 29 June 2005. The central issue before the Court of Appeal was whether either tribunal had made an error of law.

1. Permission refused. The Court of Appeal refused permission to appeal from the EAT’s order dismissing the appeal against the Employment Tribunal’s liability decision.
2. The critical issues were factual. Whether the dismissal was caused by protected whistle-blowing, rather than another reason, was for the Employment Tribunal to determine on the evidence. So too was the application of Polkey, including whether dismissal would have occurred in any event and when.
3. The Tribunal had abundant material for its findings. Its conclusion that the health and safety disclosures were qualifying disclosures did not require the conclusion that they caused the dismissal. Its finding that the dismissal was unfair under Employment Rights Act 1996, section 98, was supported by deficiencies in the disciplinary process, including the failure to separate the medical-capacity issue from the conduct issue and to obtain up-to-date medical advice.
4. The Tribunal correctly applied the ordinary conduct-dismissal principles: reasonable inquiry, an honestly held and reasonable belief, and a decision within the reasonable band of responses. It was entitled to find that the dismissal was not automatically unfair under section 103A, while remaining unfair under section 98.
5. The EAT correctly treated causation and the Polkey assessment as questions of fact and declined to interfere where the Tribunal’s conclusions were supported by substantial material. The Court of Appeal identified no issue of law and no proper basis for appellate intervention.

• Court of Appeal (Civil Division) — Permission to appeal refused on 19 December 2005.
• Employment Appeal Tribunal — Appeal dismissed on 29 June 2005; permission to appeal to the Court of Appeal refused.
• Manchester Employment Tribunal — The claim of automatic unfair dismissal for protected disclosure was rejected. The dismissal was nevertheless found unfair under Employment Rights Act 1996, section 98. Compensation was limited under Polkey to four months’ losses.