England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(HHJ McMULLEN QC)

		Royal Courts of Justice Strand London, WC2
		3rd February 2005

Thursday, 3rd February 2004

1. LORD JUSTICE MUMMERY: Ysgol Crug Glas school, which I shall refer to as "the school", caters for pupils with severe and complex learning difficulties. The headteacher from January 1996 was Mrs Elizabeth Jones. The Local Education Authority was the City and County of Swansea, which I shall refer to as "the council".
2. Mrs Bernice Pinnington was employed at the school as a school nurse from 20th February 1989 until she was dismissed on 3rd July 1999. Relations between Mrs Pinnington and Mrs Jones were not good from about mid-1996 onwards. The circumstances in which Mrs Pinnington was dismissed led her to present an application to the Employment Tribunal in August 1999 claiming unfair dismissal and wrongful dismissal. The council and the governors of the school were respondents to her application.
3. Mrs Pinnington has also claimed that she was subjected to detriment on the ground that she had made a protected disclosure. As the provisions relating to protected disclosures are not as familiar as those relating to unfair dismissal, I should, at this stage, simply quote the section which confers the right invoked by Mrs Pinnington.
4. The relevant section of the Employment Rights Act 1996, as amended by the Public Interest Disclosure Act 1998, is section 47B, which provides in subsection (1) as follows:

"A worker has the right not to be subjected to any detriment by any act or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure."

I shall return later to other provisions in the part of the 1996 Act introduced by amendment, namely Part IVA. It is important to note at this stage that those provisions only came into effect on 2nd July 1999. That was the day before Mrs Pinnington was dismissed.

5. In this court the parties have been represented by Mr Engelman and Mr Cohen for the council and the governors and by Mr Patrick Green for Mrs Pinnington.
6. The procedural position needs to be explained before I turn to the relevant factual background and law. The Employment Tribunal dismissed Mrs Pinnington's claims for unfair dismissal and for protected disclosure detriment, if I may call it that, after a nine day hearing. The extended reasons for the decision were sent to the parties on 23rd April 2003.
7. Mrs Pinnington appealed to the Employment Appeal Tribunal. The appeal tribunal gave judgment on 28th May 2004. HHJ McMullen QC presided at that hearing. The appeal tribunal dismissed Mrs Pinnington's appeal against the rejection of her claim for unfair dismissal. It allowed her appeal against the rejection of her claim for protected disclosure detriment and directed that, if practicable, the matter should be remitted to the same Employment Tribunal for rehearing. If that was not practicable, the fresh hearing would take place before a differently constituted employment tribunal.
8. Both parties sought permission to appeal to the Court of Appeal. Mrs Pinnington sought permission to appeal in respect of the dismissal of her appeal on the unfair dismissal claim. The council and governors of the school sought permission to appeal against the order of the appeal tribunal remitting the protected disclosure claim for rehearing in the Employment Tribunal.
9. The applications for permission to appeal were first considered by me on the papers on 7th July 2004, when I took the rather unusual course of adjourning the application to an ex parte oral hearing giving the following reasons for taking that course. I said:

"I doubt whether the proposed appeal has a real prospect of success but it is an unusual case and there should be an oral hearing at which the applicant's representatives will have an opportunity to argue the main points that they wish to make."

10. The adjourned hearing took place on 19th August 2004 before Keene LJ and Neuberger LJ. They decided that the application by Mrs Pinnington for permission to appeal on the unfair dismissal point should be refused. They agreed with the Employment Appeal Tribunal. No question of law arose from the decision of the Employment Tribunal on that point.
11. They did, however, grant permission to appeal to the council and the governors on the protected disclosure point, which had been dismissed by the Employment Tribunal, but the appeal had been allowed by the Employment Appeal Tribunal. Both Keene LJ and Neuberger LJ referred to the good sense of a settlement between the parties as preferable to spending further and disproportionate costs on the appeal for which permission had been given. I should quote from Keene LJ's judgment, at paragraph 40, when, having granted permission to the council and the governors, he said:

"... 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 pause to mention the two days in question are 2nd and 3rd July 1999]. 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."

Neuberger LJ expressed similar views in paragraph 42 of the judgment.

12. It is indeed a pity that no settlement has been reached. There was an attempt to bring the proceedings to an end. We have been shown an open letter dated 25th October 2004 written by the head of Legal and Democratic Services for the Council to the solicitors then acting for Mrs Pinnington, suggesting that Mrs Pinnington accept the findings of the Employment Tribunal that no "detriment" was suffered by her during the relevant period, thereby avoiding the necessity of a further court hearing. They said, "It is not our wish to take this matter back to the Court of Appeal and we would therefore urge your client to agree to settle." I understand there were further "without prejudice" negotiations. All we know is that no settlement was reached.
13. I turn to the employment history. It can be summarised quite briefly in view of the narrow point raised by this appeal. In 1997 Mrs Pinnington began to make allegations about the resuscitation of terminally ill children at the school and about the adequacy of the medical room there. She alleged that there was a policy of non-resuscitation. An enquiry was ordered by the council, which reported on 15th September 1997. It found no basis for the allegations made by Mrs Pinnington.
14. Mrs Pinnington was certified sick. She was away from work from 17th September 1997 to 31st March 1998 suffering from stress and anxiety. She returned to work for a short period between 31st March and 29th April 1998. She was then away sick. She never returned to work at the school before her dismissal with effect from 3rd July 1999. On 2nd July 1998, that is after she had begun the second period away sick, she was suspended by the employer. This was for breach of confidence in relation to records relating to children at the school. There was a second enquiry. It was carried out by the governors following further complaints of the same kind that Mrs Pinnington had made earlier. There was a report following that enquiry in September 1998. Again it was found that there was no evidence of the policy of non-resuscitation of the kind alleged by Mrs Pinnington.
15. On 7th June 1999 a capability hearing was held. On 29th June a letter was sent to Mrs Pinnington informing her that it had been decided to dismiss her. She replied on 2nd July that she wished to appeal against that decision. On 3rd July 1999 she received a letter from the employer dated 1st July 1999 saying that she was dismissed.
16. The Employment Tribunal decision is long and detailed. It is not necessary, for the purposes of this appeal, to refer to the details, save as regards its conclusions on the protected disclosure point. As regards the claim for unfair dismissal, I only mention this by way of background. For the reasons already given, there is no argument before this court against the conclusion of the Employment Tribunal that Mrs Pinnington was fairly dismissed. Permission to appeal against that finding was refused by this court.
17. The tribunal found that the principal reason for the dismissal of Mrs Pinnington was capability due to illness. She was not fit to go back to work. It follows from this that the reason for her dismissal was not that she had made protected disclosures about the alleged policy of non-resuscitation of terminally ill children. The tribunal made it clear that they accepted the evidence from the council's witnesses, principally from Mrs Cartwright, who chaired the governor's sub-committee, and from Mrs Wood.
18. The tribunal went on to hold, and again this is by way of background only, that the actions of the council were not malicious or wilful, so as to cause the incapacitating ill-health resulting in Mrs Pinnington's dismissal.
19. Finally, they explained why they found, in all the circumstances, that Mrs Pinnington's dismissal was fair.
20. The relevant paragraphs deal with the conclusions of the tribunal on the question of "detriment" and protected disclosure. They are contained in paragraphs 186 and 187. They are brief and have been criticised for lack of reasoning. I shall read them in full:

"186. Turning now to the question of detriment for the purposes of the Public Interest Disclosure Act considerations. On the facts the Applicant was away from her employment on 2 and 3 July 1999 and can only be said to have suffered a detriment during this short period of time because of her ill-health/suspension. As to the suspension we find that the Respondents were entitled to suspend the Applicant because of disclosures made to parents by the Applicant in circumstances whereby questions of breach of confidence did arise. Further we have concluded that ill-health was not caused by any malicious or other inappropriate actions on the part of the Respondents. An unjustified sense of grievance causing ill-health cannot amount to a detriment for the purposes of the Act. We consider that that is what the Applicant had at this relevant time namely an unjustified sense of grievance. We do not find that the Applicant suffered detriment during this brief period.

"187. In any event we consider against the whole background of matters that that period from 2 and 3 July 1999 makes any question of detriment to be de minimis."

21. It is clear that they held, first, that the employer was entitled to suspend Mrs Pinnington in July 1998 because of disclosures she had made. The disclosures, in breach of confidence, are referred to in more detail in earlier paragraphs of the decision describing the circumstances in which Mrs Pinnington was suspended.
22. Secondly, the tribunal identified, as the only relevant period in which detriment could have been suffered, the two days, the 2nd and 3rd July. No period earlier than that was relevant because, as mentioned earlier, the protected disclosure provisions did not come into effect until 2nd July. The provisions are not retrospective.
23. Thirdly, the tribunal made it clear that they regarded it as relevant that, even in that short period, Mrs Pinnington was prevented by ill-health from going to work. It was not simply a question of her having been suspended and that suspension still being in force. She was unable to go to work because of her ill-health.
24. Fourthly, that ill-health had not been caused by the culpable acts of the employer, that is by any malicious or inappropriate action. The ill-health was the result, the tribunal found, of an "unjustified sense of grievance" entertained by Mrs Pinnington.
25. Fifthly, the tribunal held that Mrs Pinnington suffered no detriment on those two days. Sixthly, and finally, they found that any detriment that was suffered was "de minimis".
26. Those reasons must be examined to see if any question of law arises from them. There is no appellate jurisdiction to overturn questions of fact. At this point I look at the further relevant provisions of the Employment Rights Act, Part IVA, which only came into effect on 2nd July 1999.
27. It is common ground that the relevant provisions apply in respect of a "protected disclosure" that was made before the amendments came into effect, but I should make it clear that does not mean that the operative provisions of the Act are retrospective in their effect. This is particularly important in relation to the provisions which confer the relevant right on Mrs Pinnington (section 47B). It is a necessary ingredient of her cause of action under section 47B(1), first, that she was subjected to "detriment", secondly, she was subjected to detriment "by any act, or deliberate failure to act", and, thirdly, that it was by the employer, and, fourthly, that it was on the ground that "the worker has made a protected disclosure".
28. In my judgment, although the protected disclosure may have been made before the provision came into effect, the detriment and the deliberate failure to act which inflicted the detriment suffered by the employee, must have occurred after the Act came into effect. That is in accordance with the general presumption that legislation does not have retrospective effect, unless it is expressly so provided. It is contrary to general principle that something which is lawful when it is done should become unlawful retrospectively by reason of subsequent legislation.
29. I would also add, as a general proposition, that whether somebody has suffered detriment or not is a question of fact for the Employment Tribunal. But of course they must arrive at any conclusion of fact on that question by a proper self direction on the law. It is a matter of law as to what is capable of constituting detriment for the purposes of those provisions.
30. The central question on this appeal is, as indicated, whether any question of law arises from that decision in paragraphs 186 and 187 rejecting Mrs Pinnington's claim that she has been subjected to detriment by an act, or a deliberate failure to act, on the part of the employer.
31. The act, or deliberate failure to act, of which complaint is made by Mr Green on behalf of Mrs Pinnington, is not the fact that she was suspended on 2nd July 1998. No complaint can be made of that, since the protected disclosure provisions were not in force. What he says is that there was a "deliberate failure to act" by the employer after the provisions came into force, the deliberate failure being not terminating the suspension, which had been in force since 2nd July 1998.
32. In the course of his submissions Mr Green cited other provisions in Part IVA of the 1996 Act. In particular he went, in some detail, through the provisions of paragraph 43H, which deals with the disclosure of an exceptionally serious failure. He criticised the Employment Tribunal for not having conducted the exercise which he conducted in this court; namely, going through each of the provisions in section 43H and looking at the evidence, such as it was, about the circumstances relevant to whether or not a qualifying disclosure was made by Mrs Pinnington. He said that the Employment Tribunal decision was lacking in any attempt to analyse the relevant legal provisions of the protected disclosure regime. This in itself raised a question of law for this court to decide.
33. As to the question of "detriment" he said that the detriment that he was relying on was the stigma which his client suffered for those two days by continuing to be suspended for making what he contended was a protected disclosure.
34. I should also mention, before stating my conclusions on the appeal, that Mr Green made a number of other points which in my view are either irrelevant or not open to him. He said that the employer had acted "unlawfully". This involved a reference back to an even earlier excursion to the Employment Tribunal and the Employment Appeal Tribunal, after the Employment Tribunal had struck out the originating application of Mrs Pinnington on the ground that it was premature. The Employment Appeal Tribunal, presided over by HHJ Wilkie QC, reversed that decision. Mr Green sought to argue, on the basis of contentions advanced at that time, that the employer had acted unlawfully, as against Mrs Pinnington, by dismissing her with effect from 3rd July 1999 in breach of the statutory scheme. If the statutory scheme had been adhered to, she would have been in employment beyond 3rd July 1999. In fact, he submitted, there was a longer period of detriment than the two days identified in the Employment Tribunal decision.
35. In my judgment, that argument is not open to Mr Green because the Employment Tribunal decided, and he has no permission to challenge it in this court, that the dismissal took place on 3rd July 1999 and that it was a fair dismissal. It is implicit in that ruling that it was a lawful dismissal, because it is almost impossible to conceive of circumstances in which something that was held to be fair was "unlawful".
36. Secondly, Mr Green sought to argue that his case was in some way improved by the fact that the remedies provisions allow an employment tribunal to grant simply a declaration, as in the case of the Race and Sex Discrimination Acts.
37. I do not see how this helps him at all. A tribunal would only be able to grant a declaration as to the rights of Mrs Pinnington if in fact her rights were infringed. The rights are not infringed unless she establishes the requirements of her cause of action under section 47B. That involves establishing that she suffered detriment over the relevant period as a result of an act, or deliberate failure to act, on the part of the employer. The declaration point does not take the matter any further.
38. Thirdly, as I have already indicated, Mr Green criticised the tribunal for failing to analyse, in paragraphs 186 and 187 of their decision, the various provisions in Part IVA of the 1996 Act and said that, if they had gone through that exercise, as they should have done, then they might have come up with the right answer; that is a decision in favour of his client.
39. In my view, there is no error of law on the part of the tribunal in not going through other provisions in this Part of the 1996 Act if, as they held, there was no cause of action established by Mrs Pinnington because she was not able to identify any detriment suffered over the relevant period. She either had a cause of action or she did not. If, as the tribunal said, she has no cause of action, then there is no point in referring to the other provisions, such as section 43H. They simply would not apply, if she could not satisfy the ingredients of the course of action.
40. Having identified arguments which, in my view, are neither relevant nor open to Mr Green, I should now state my conclusions. They are as follows. First, it was an essential ingredient of the cause of action under section 47B that Mrs Pinnington was subjected to detriment by any act, or any deliberate failure to act, by the employer.
41. Secondly, it was accepted on behalf of Mrs Pinnington that she could not rely simply on the fact of suspension on 2nd July 1998 as itself constituting detriment by an act or deliberate failure to act. That was because the suspension took place a year before the protected disclosure provisions came into force on 2nd July 1999.
42. Thirdly, and I regard this as crucial, no act, or deliberate failure to act, on the part of the employer, has been identified as having occurred on 2nd or 3rd July 1999. Mr Green accepted that no act had been committed by the employer. He had to say there was a failure to act and that it was a deliberate one. He said that there was such a deliberate failure to act and that was a failure to terminate the suspension from the year before as soon as the Part IVA provisions came into effect on 2nd July 1999. The result of their failing to do that was, as I have already mentioned, to stigmatise Mrs Pinnington with a suspension and that, he said, was capable of being a detriment under section 47B.
43. In my view the difficulty with this submission is that there was no evidence before the Employment Tribunal that there was any deliberate failure to act in relation to terminating the suspension. I have looked at the originating application. It does not seem that one was even alleged. It is difficult to see how any such deliberate failure to act could possibly have been inferred in all the circumstances of the case.
44. The relevant circumstances were that Mrs Pinnington had been away from work sick since April 1998 and that there was no evidence of any immediate prospect of her returning to work. It was the absence of such a prospect that led the employer to set in motion, earlier in 1999, the process for terminating her employment on a capability ground related to her ill-health. As I have already mentioned in the chronology, there was a capability hearing on 7th June 1999 and it was decided, as she was notified on 29th June, that she would be dismissed. She received the letter informing her that she was going to be dismissed and she sought to appeal it. She received a further letter on 3rd July formally notifying her that she had been dismissed.
45. If she was to remain in employment, then I can see the argument that there might have been, I say no more than that, some duty on the part of the council to revisit the question of continuing her original suspension in the light of the provisions relating to protected disclosure which had come into force on 2nd July 1999. But that is not this case. The employers had decided that they were not going to continue to employ her. They were going to dismiss her. There was, in my view, no realism in the suggestion that, having decided to dismiss her by the end of June, they should have considered, on 2nd July, terminating the suspension. The suspension would expire automatically on her dismissal. There is no question of suspending someone that you no longer employ.
46. So, to sum up, I would allow this appeal on the ground that there was no claim by Mrs Pinnington under section 47B. The Employment Tribunal were right to reject it. They did so on the grounds that there was no detriment or, alternatively, that any detriment was de minimis. I would do so on the ground that it appears from all the facts found by the tribunal that there was no act, or deliberate failure to act, on the part of the employer, which could have resulted in any detriment. Such act, or deliberate failure to act, must have taken place, if it took place at all, after the coming into force of the Act. There was no evidence that there was any such deliberate failure to act and therefore there was no cause of action. Strictly speaking it was not necessary to consider whether or not there was any "detriment".
47. I do not find it necessary to express any opinion in this judgment on whether the contention that a two-day suspension constitutes detriment is correct. It is a matter which must be left over for a further case. On this appeal I would decide the case simply on the basis that there was no act or deliberate failure to act which could have caused any detriment in the relevant period.
48. The result is that I do not agree with the analysis, so far as I can understand it, in the judgment of the Employment Appeal Tribunal on this point. I have been unable to discover, on this part of the case, any question of law which entitled the appeal tribunal to make an order setting aside the decision of the Employment Tribunal rejecting this claim and ordering it to be reheard by the Employment Tribunal at a fresh hearing. For all those reasons I would allow this appeal.
49. LORD JUSTICE CLARKE: I agree.
50. LORD JUSTICE WALL: I also agree and have nothing to add.

ORDER: appeal allowed; normal order for costs; respondent to pay appellants' costs, not to include any costs which have been incurred by appellants at hearing before Keene LJ and Neuberger LJ.