PROTECTED DISCLOSURE

Pinnington v Swansea City Council and another: [2005] EWCA Civ 135

CA: Mummery, Clarke and Wall LJJ: 3 February 2005

The applicant, a nurse at a special needs school, made allegations in 1997 that a policy of non-resuscitation of terminally ill children existed at the school and that there was an inadequacy of medical facilities there. An inquiry by the local education authority found there was no basis for the allegations. The applicant was then away from work for a little over six months due to stress and anxiety, returned to work for a month and was then absent from the end of April 1998 onwards. In July 1998 the applicant was suspended for breach of confidence in respect of records relating to children at the school. The school governing body held a second inquiry, following complaints by the applicant similar to those she made previously, and again found no basis for her allegations. A capability hearing was held in June 1999 as a result of which the applicant was informed by letter that she would be dismissed. On 2 July 1999 the applicant replied that she wished to appeal against that decision, and on the same day the provisions of Part IVA of the Employment Rights Act 1996 came into effect. The following day the applicant received confirmation of her dismissal. She made complaints against the authority and the school's governing body of unfair dismissal and of detriment on the ground that she had made a protected disclosure within section 47B(1) of the 1996 Act.
The employment tribunal, dismissing the complaints, found that the reason for dismissal was the applicant's unfitness to work due to illness, not that she had made protected disclosures, that she had suffered no detriment for the purposes of section 47B, and that any detriment for the two days 2 and 3 July 1999 was, in any event, de minimis. The Employment Appeal Tribunal dismissed the applicant's appeal on her unfair dismissal claim but allowed her appeal in respect of the claim for protected disclosure detriment and remitted it for rehearing.

The local education authority and the school governing body appealed.

The Court of Appeal held:
The necessary ingredients of the cause of action under section 47B(1) of the Employment Rights Act 1996 were that the employee was subjected to "detriment by any act, or any deliberate failure to act," by the employer on the ground that the employee had made a protected disclosure. Although the protected disclosure might have been made before the section came into effect, the detriment and deliberate failure to act which inflicted the detriment had to have occurred after the section came into effect. Accordingly, the applicant could not simply rely on the fact of the suspension as itself constituting detriment by an act or deliberate failure to act because it took place a year before the protected disclosure provisions came into force, and there was no evidence that there was any subsequent deliberate failure to act in relation to terminating the suspension. Therefore, since there was no act, or deliberate failure to act, on the part of the employer after section 47B took effect which could have resulted in any detriment, the applicant had failed to establish a cause of action under the section.

The appeal was allowed.

Appearances: Philip Engelman and Jonathan Cohen (Solicitor, Swansea City Council) for the council and the school governing body; Patrick Green (Brian Barr, Manchester) for the applicant.