Pinnington v Swansea City & County & Anor

LORD JUSTICE KEENE: There are two applications before us for permission to appeal from a decision of the Employment Appeal Tribunal ("EAT") dated 28th May 2004, a decision which was sealed on 8th June 2004. In effect each side in this matter seeks permission to appeal some part of the EAT decision.

By its decision the EAT allowed in part an appeal by Mrs Pinnington against a decision of an Employment Tribunal, but dismissed the remainder of her appeal. For the sake of clarity, I shall during the rest of this judgment refer to Mrs Pinnington as "the applicant", as she was before the Employment Tribunal, and the other parties as "the respondents".

The applicant was a school nurse at a special school in the Swansea area. She was suspended by her employers and subsequently dismissed, and as a result she brought claims of unfair dismissal and wrongful dismissal and of detriment suffered because she was what is normally nowadays called a whistle-blower. The Tribunal hearing lasted some nine days. In due course the Tribunal dismissed her claims in a decision running to some 58 typed pages.

The facts are well summarised in the EAT decision and I merely set out the most essential ones, although even that occupies inevitably a certain amount of time.

The school in question was one for pupils with severe and complex learning difficulties. In 1996 a Mrs Elizabeth Jones became the head teacher, but she and the applicant came into conflict over a number of matters. In particular, the applicant complained that the school or the head teacher were operating some sort of policy of not resuscitating terminally ill children who collapsed at school. There was an exchange of correspondence on the subject in May 1997, with the applicant expressing concern about her professional position and the head teacher emphasising the need for the applicant to seek clarification from a consultant paediatrician. Subsequently, it was agreed that the applicant would resuscitate any child in the school whose medical condition required it, until such time as there was an order in place to the contrary.

The applicant complained to the local education authority ("the LEA") in June 1997 about Mrs Jones and the LEA conducted an investigation, generally known as "the first inquiry". The LEA officers reported that they found no evidence of a non-resuscitation policy in operation at the school, but they raised queries as to Mrs Jones' management style. This report was dated 15th September 1997.

Shortly thereafter, on 17th September 1997, the applicant was certified sick with anxiety and stress. She remained so certified until 31st March 1998 when she returned to work for a time. Her return to work lasted until 29th April that year, when she again went on sick leave and subsequently never returned to work. By now the applicant had been in touch with a local MP about her concerns, particularly in relation to non-resuscitation.

During the period in April 1998 when she was back at work, she again raised a number of concerns internally about what was happening at the school, one of which was that a care plan for a particular child, AM, was "non-resuscitation in disguise". She made a formal complaint to that effect along with other complaints, and she described the LEA investigation which had been carried out as a whitewash. By now both the Welsh Office and the local MP had become involved.

The EAT summarised the next events at paragraph 29 as follows:

The applicant indicated that she was not prepared to engage in the LEA's second inquiry and she contacted relatives of AM to tell them of her concerns. A formal complaint was then made by one of those relatives to the LEA.

On 2nd July 1998 the Director of Education of the LEA suspended the applicant on full pay "to allow [allegations] to be fully investigated" and it was said that this was not a disciplinary action. Nonetheless, it seems clear to me that the LEA was concerned that there had been a breach of confidentiality by the applicant.

This second investigation was instigated by the LEA. It arrived at a number of conclusions having, amongst other things, held an oral hearing chaired by a councillor. Among its conclusions was that there was no evidence that a non-resuscitation policy was operated at the school, but that the applicant had behaved professionally and no action should be taken against her. In broad terms these conclusions were endorsed, after further hearings, by the governors of the school.

There was then in March 1999 a meeting of the governors at which the Director of Education raised the fact that the applicant had, by then, effectively been on sick leave for about 18 months. The governors decided that the sickness procedures policy should be followed. In May of that year there was a report by the LEA on this, which was sent to the applicant's solicitors. She responded that her ill health was a result of the LEA's behaviour towards her, but she also said that the medical advice was that she was permanently unfit to return to work.

A capability hearing took place on 7th June 1999. As the EAT summarised it:

Consequently the Personnel Sub-Committee concluded that the applicant was unable to return to the school and it was resolved that she should be dismissed with immediate effect. She was in fact dismissed as from 3rd July 1999. She appealed internally, but unsuccessfully.

The date of her dismissal is of significance, because on 2nd July 1999 the amendments to various sections of the Employment Rights Act 1996 ("the 1996 Act") made by the Public Interest Disclosure Act 1998 came into effect. They gave rise to the first issue to be dealt with by the Employment Tribunal, namely was the dismissal of the applicant automatically unfair? The newly introduced section 103A of the 1996 Act provides as follows:

The meaning of a protected disclosure is dealt with by section 43A and following sections and it is unnecessary to set those out. The Tribunal therefore had to consider what was the reason, or the principal reason, for the applicant's dismissal. It identified this as an issue at paragraph 180 of its extended reasons and it then said this, at paragraph 181:

The Tribunal then went on, having found that the principal reason was a potentially fair one under section 98(2), to consider whether the employer had in fact acted fairly or not in all the circumstances under section 98(4). It found that the dismissal was fair. It noted the applicant's allegations that her ill health was the result of the employer's actions, but, referring to the EAT decision in Edwards v Governors of Hanson School [2001] IRLR 733, it found that the respondents had not acted maliciously, nor had they wilfully caused the applicant's ill health. It found also that both inquiries conducted by the LEA had been thorough and detailed and that the conclusions reached were ones open to a reasonable employer, even though the applicant disagreed with them. The Tribunal noted that the respondents had made efforts to find other employment for the applicant without success. It concluded that the dismissal was fair.

It also had to deal with whether the applicant had suffered detriment, apart from dismissal, by an act of the respondents done on the ground that she had made a protected disclosure (see section 47B). This, as the Tribunal pointed out, could in reality only relate to 2nd and 3rd July 1999 and could only arise in respect of that period because of her ill health or suspension. On this topic the Tribunal said this, at paragraph 186 of its extended reasons:

On appeal the EAT upheld the Tribunal's conclusion as to the dismissal. It said at paragraph 68:

As to the actual fairness of the dismissal, the EAT concluded that the band of reasonable responses approach applied in cases of ill health, as it did in misconduct cases. Moreover, normally an employer's duty to act fairly in dismissing an employee on grounds of ill health is unaffected by considerations as to who was responsible for the employee's unfitness to work (London Fire and Civil Defence Authority v Betty [1994] IRLR 384). The EAT recognised that that proposition was subject to a qualification spelt out in the case of Edwards v Governors of Hanson School, where there was malicious conduct by an employer or the wilful causing of the ill health by the employer. The EAT concluded that the Tribunal had not erred in law in its decision on the dismissal.

That part of the EAT decision is attacked by the applicant on several grounds. It is said, first, that the Tribunal applied the wrong test when asking what was the reason for dismissal. Mr Green, who appears on her behalf this morning as he did below, submits that conscious motivation on the part of the employer is not the right test. For that proposition he relies on Nagajaran v London Regional Transport [1999] IRLR 572 and a number of other discrimination cases. Those cases establish that phrases like "on racial grounds" in statutes dealing with discrimination, such as the Race Relations Act 1976, are not confined to conscious racial or other discrimination, but include subconscious motivation as well. Mr Green argues that the Employment Tribunal should therefore have looked behind the ostensible reason for dismissal to see what the real underlying reason was.

Put in terms that the Tribunal has to seek to identify the true reason for dismissal, I am prepared to accept that proposition. But I cannot accept that one is looking for unconscious motivation in the way that one does in discrimination cases. The Tribunal here was concerned with the reason or principal reason for the dismissal. The employment legislation in this country has long used such wording in respect of unfair dismissal and the Employment Rights Act 1996 still does, most notably in section 98(1) and 98(2). The new section 103A mirrors that language. In asking what was the reason for dismissal, the correct approach is that spelt out as long ago as 1974 by Cairns LJ in Abernethy v Mott, Hay and Anderson [1974] ICR 323 at page 330, and approved by the House of Lords in Devis & Sons v Atkins [1977] AC 931, namely that a reason for dismissal is a set of facts known to the employer or beliefs held by him which cause him to dismiss the employee.

It is in my judgment a straightforward question: why did the employer dismiss the employee? That was the approach adopted here by the Employment Tribunal. It concluded that the reason was the persistent ill health of the applicant. That is a finding of fact, as the Khan case indicates. The Tribunal heard the witnesses. I can see no prospect of the full Court of Appeal interfering with that finding as to what the reason was for the dismissal.

Next it is contended that the Tribunal was wrong to decline to look behind the applicant's illness to see whether the employer had been responsible for it, save in cases of malice or wilful harm. Mr Green again relies on the discrimination cases to support his approach. He argues that the Edwards case does not preclude looking behind such an illness to the underlying cause, and indeed he contends that the Betty decision was wrong in law and should not be followed. Again, in this context he argues that it is important to be prepared to consider if there is some underlying cause of the illness.

For my part, I would emphasise the obvious point that once it has been determined that the dismissal was for a potentially fair reason, one is then simply concerned with whether the dismissal was in fact fair in all the circumstances. That remains the test even where the illness and consequential lack of capability is caused by the employer, such as, for example, where the employee suffers a physical injury because of some breach of health and safety regulation by the employer (see the illustration given in Betty). Of course if there is some responsibility for the illness resting on the employer, he may be required to have taken some further steps in order for any eventual dismissal to be regarded as fair. That is why the EAT in Betty said that one should have regard, not only to the medical condition of the employee, but also to the enquiries made and procedures used by the employer before deciding to dismiss (see paragraph 10 of that decision). The conduct of the employer will therefore sometimes be relevant. That is why in Edwards the EAT referred to instances of malice or wilful harm on the part of the employer. But the judgment in that case, with which I agree, did indicate that cases where dismissal would be unfair because of past treatment by the employer leading to ill health were likely to be exceptional, and hence the illustration which required malice or wilful harm. It is not normally appropriate for an Employment Tribunal to seek to investigate the cause of the employee's ill health and consequent incapacity.

In the present case, the Tribunal expressly found that the actions of the employer were not done maliciously. It also considered the employer's conduct in investigating the applicant's allegations and in trying to find other employment for her. In those circumstances, I can see no error of law, nor even an arguable one, in the approach adopted by the Employment Tribunal. I will come in due course to the suggestion that the employer here did not conduct a reasonable investigation.

It is submitted by Mr Green that the Tribunal did not make adequate findings of fact. It is said that the Tribunal merely commented on the thoroughness of the investigation into the applicant's complaints and did not itself decide whether the complaints were justified. That too is said to be an error of law.

I cannot agree that there is any arguable error of law in that respect. First of all, a Tribunal need not decide every dispute of fact which arises in the case before it. It only needs to determine such facts as are necessary for its decision. Secondly, in unfair dismissal cases the Tribunal is concerned with the reasonableness of the employer's conduct. If an employer has behaved in a way open to a reasonable employer in the circumstances, the dismissal will be fair. Where allegations are made, the issue is not whether they are in fact true, but whether the employer carried out a reasonable investigation of them. I agree with the EAT that the approach well established in conduct cases, namely of asking whether the employer's actions fell within the band of reasonable responses which an employer could reasonably make in all the circumstances, applies in cases such as the present. The converse proposition in my view is not realistically arguable. That decision again is one of fact.

It is right that this Tribunal did not determine all the issues between the parties, but it did not need to do so. It determined the principal reason for the dismissal, it identified the allegations and it considered the investigations carried out by the employer. I see force in the point that has been made by Mr Cohen on behalf of the employer that the reasoning for the decision ultimately of the Tribunal seems perhaps limited, only because they set out at such length the correspondence and documentation and other factual information put before it. In my judgment, the Tribunal here made adequate findings and spelt out its reasoning for its decisions with sufficient clarity.

Mr Green, recognising that the Tribunal's findings on the reasonableness of the employer's actions is essentially one of fact, seeks to contend that the finding was not open to the Tribunal but was instead perverse. I have read, I hope, the relevant material. It does not seem to me properly arguable that the Tribunal's findings were perverse.

As I have indicated, it is said that the Tribunal failed to give adequate reasons for its decision. Again, I have to disagree. Its reasons may not be lengthy in comparison to the descriptive part of its decision, but they do in my view present the reader with an adequate and intelligible explanation for the conclusions at which they arrived.

I have already indicated that in a situation such as this it may at times be necessary for the employer to carry out an investigation. The issue then is not whether the investigation came to the right conclusion, but whether the investigation itself was a reasonable one. The applicant challenges the reasonableness of the investigations here. Mr Green seeks to establish that the two investigations were not ones open to a reasonable employer by looking at certain of the conclusions reached by the investigations, in particular in relation to as whether there was a policy of non-resuscitation at this school.

Having looked at the documents in question, it seems to me, first of all, that the conclusion of the inquiries that the school did not have a non-resuscitation policy was one which was properly open to it. Indeed, Mr Green now does not dispute that there was no such policy. He seeks to focus on the fact that a particular approach may have been adopted towards two particular cases and that there was evidence to show that a particular approach was adopted towards those two particular cases. To my mind that does not vitiate the conclusions actually reached by the investigations.

In any event, it seems to me that the processes of investigation carried out on behalf of the LEA were themselves clearly within the range of reasonable investigations which such an employer could properly have carried out. The inquiries were lengthy and detailed. They involved interviews with staff at the school. There were oral hearings conducted in the case of both investigations. As I have emphasised, it is important not to ask whether the inquiries came to the right conclusion, but whether the inquiries themselves sought to carry out a proper investigation. I cannot see in this case that it is properly arguable that they were not proper investigations.

For these somewhat lengthy reasons, I would dismiss the applicant's application for permission to appeal. It has in my judgment no real prospect of success.

I turn more briefly to the respondents' application. This concerns that part of the EAT's decision where it dealt with the issue of non-dismissal detriment during the two days of 2nd and 3rd July 1999. Section 47B(1) of the 1996 provides:

The EAT criticised the Employment Tribunal's decision (which I have set out earlier in this judgment) on the basis that the Tribunal had failed to determine whether the applicant had acted in good faith in making disclosure, that being said to be part of the test for a "protected disclosure" under section 43C. I have to say that the EAT's reasoning on this is not particularly easy to follow. But the point made by Mr Cohen on behalf of the respondents in his written skeleton argument is that it is not enough for the disclosure to be a protected one: there must also be detriment established, and the Tribunal found that there was no detriment suffered by the applicant. The Tribunal regarded any question of detriment during these two days to be de minimis. Of course the applicant, I recognise, was still suspended during those two days, which on the face of it could well be regarded as amounting to a detriment to her. If that were the result of her having made a protected disclosure, then of course she could have a claim. On the other hand, she was also away from work on long-term sickness absence. I note that according to paragraph 143 of the Tribunal's decision, the LEA in April 1999 had told the applicant's solicitors that the governing body was holding the disciplinary matter in abeyance whilst consideration was given to the capability issue.

In all those circumstances, it seems to me that there is some force in the respondents' argument that the EAT erred in deciding to remit the case to the Tribunal to determine whether the disclosures were protected, when there was a finding of no detriment during the two days. It is not entirely straightforward because the EAT does refer at paragraph 81 to the comments about "detriment" made in the Shamoon case. Nonetheless, the respondents' point is properly arguable and for my part I would grant permission to the respondents to appeal on this aspect of the case.

Having said that, I am bound to comment that it would be most regrettable if there were to be further litigation on a point which is likely to be of little practical value to either party. The costs of a full Court of Appeal hearing seem certain to exceed to a huge degree any amount which is likely to be at stake or to turn on the outcome of this argument about detriment during those two days. I would strongly urge the parties to try to reach agreement on this aspect of the case, rather than letting it go to a hearing before the full court. It simply is not worth the cost.

I summarise in conclusion my own formal position. For my part, I would dismiss the applicant's application for permission to appeal but allow the respondents' application.

LORD JUSTICE NEUBERGER: I agree. On the applicant's application I was initially attracted by some of the arguments raised by Mr Green. But on reflection it seems to me that the recital by the Employment Tribunal of the detailed facts, if it can be criticised at all, can be criticised more for the fact that they went into facts which were not actually necessary for them to go into, rather than for them not dealing with those issues in light of the findings they made in paragraph 181 of their decision, and in light of the fact that only in very rare circumstances would one go behind the reason for the ill health which leads to dismissal. I am accordingly of the view that her projected appeal would stand no chance of success.

In those circumstances, in agreement with the reasons so fully expressed by my Lord, I would dismiss her application. For the reasons he gives, I would allow the respondents' application, albeit that I associate myself fully with the remarks about the good sense of a settlement between the parties, rather than further costs being disproportionately spent on any such appeal.