MRS B PINNINGTON v (1) THE CITY & COUNTY OF SWANSEA (2) THE GOVERNING BODY OF YSGOL CRUG GLAS SCHOOL [2004] UKEAT 0561_03_2805

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0561_03_2805Case No Appeal No. UKEAT/0561/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS B PINNINGTONAPPELLANT(1) THE CITY & COUNTY OF SWANSEA (2) THE GOVERNING BODY OF YSGOL CRUG GLAS SCHOOLRESPONDENT
Before
His Honour Judge McMullenDate 28 May 2004
[1]APPEARANCES For the Appellant MR PATRICK GREEN (of Counsel) Instructed by: Ms Jenni Watson Bramble House Hook Nr. Goole East Riding of Yorkshire DN14 5NE For the Respondents MR PHILIP ENGELMAN and MR JONATHAN COHEN (of Counsel) Instructed by: Legal & Committee Services Council of the City and County of Swansea Oystermouth Road Swansea SA1 3SN SUMMARY Unfair Dismissal The Employment Tribunal correctly applied Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065 , 1072, para. 29 to the question of whether the applicant was dismissed for a reason related to her capability or to her having made a protected disclosure under s 103A and Part IVA Employment Rights Act 1996 . Its approach to detriment during 2 days' suspension was deficient and that part of the appeal succeeded and the question was remitted to the Tribunal. HIS HONOUR JUDGE McMULLEN QC The issue in this appeal is whether an Employment Tribunal was correct to hold that the suspension and subsequent dismissal of a School Nurse was on the grounds of capability and ill health, and (in the case of dismissal) was fair, as her employers contended, or was on the grounds that she blew the whistle in respect of policies relating to children in her care, as she contends. The judgment represents the views of all three members. We will refer to Mrs Pinnington as the Applicant, the City & County of Swansea as the Local Education Authority ("the LEA"), and the Governors of Ysgol Crug Glas School as the School.[2]The judgment of Sullivan J of 19 July 1999 was relied upon frequently by Mr Engelman for the Respondents and we were promised a copy which was not lodged until 16 April 2004. That prompted a further response on behalf of the Applicant from her representative Jenni Watson lodged on 19 April 2004 providing us with a further 57 pages of written submissions which had been put to the Employment Tribunal, and further comments of the Respondents lodged on 29 April 2004. The introduction of these materials has contributed to the delayed delivery of this judgment. Introduction[3]It is an appeal by the Applicant in those proceedings against the reserved decision of an Employment Tribunal sitting over 9 days at Cardiff in the summer of 2002 and February 2003, Chairman Mr Philip Davies, registered with Extended Reasons on 24 April 2003. The Applicant was represented by an experienced lay representative and here by Mr Patrick Green of Counsel, who gives his services under the aegis of the Bar Pro Bono Unit. The Respondents were represented there and here by Mr Philip Engelman and Mr Jonathan Cohen of Counsel.[4]The Applicant claimed unfair dismissal, wrongful dismissal and to have suffered a detriment on the grounds that she was a whistle-blower. The Respondents asserted she had been suspended, and dismissed fairly, for a permissible reason. The Issue[5]The Tribunal defined the issue as follows:
"7. The central issue in this case is what was the reason for the dismissal of the Applicant and subject to the answer to this question whether the dismissal was fair or unfair. The Applicant contends that the real reason for her dismissal was because she made a protected disclosure within the meaning of Section 103 (A) of the Employment Rights Act 1996 and that that is an automatically unfair reason. The Applicant alleges that there was a policy of non-resuscitation of terminally ill children operating at the school that she worked, Ysgol Crug Glas. Furthermore the Applicant contends that she has suffered a detriment within the meaning of the Public Interest Disclosure Act 1998. It is contended also that given that a dismissal occurred and was purportedly for the reason of sickness the Applicant asks the Tribunal to find that in the actual circumstances known to the employer at the time the dismissal was unreasonable. 8. The Respondents say that the issue in the case is solely that of whether the dismissal was fair or unfair in the context of incapability. They contend that given the commencement date of the Public Interest Disclosure Act namely 2 July 1999, that consideration of dismissal/detriment does not arise. It is only the question of dismissal1 that is the issue for the Tribunal."
[6]It upheld the Respondents' contention and dismissed the Originating Application. The Applicant appeals.[7]Directions sending this appeal to a preliminary hearing were given by His Honour Judge Prophet in chambers and, sending this to a full hearing, by His Honour Judge Reid QC and members at a preliminary hearing.[8]This is the second appearance of this case at the Appeal Tribunal, for the Applicant succeeded in overturning a decision of a Chairman sitting alone, affirmed on review by him, to strike out her claim for want of jurisdiction. She had presented an Originating Application in August 1999 which was found to be premature and therefore outside section 111 of the Employment Rights Act 1996 , for it preceded her dismissal on 19 October 1999.[9]The EAT, His Honour Judge Wilkie QC and members, decided that the Chairman had erred in construing a letter of 1 July 1999 and events surrounding it incorrectly and substituted a decision that the dismissal was on or a couple of days after 1 July 1999. The matter was thus remitted to the hearing from which our appeal emerges. The Tribunal at that hearing decided that the effective date of termination was 3 July 1999 when the Applicant received the above letter.[10]The precise relationship between the LEA and the School was summarised in the EAT judgment as follows:
"3 The reason for that difference stems from the statutory nature of the Appellant's employment. She was employed as a School Nurse at a school maintained by the Second Respondent, but governed, under delegated powers, by the governing body of the school. Accordingly, her contract of service necessarily incorporated the statutory framework imposed by the School Standards and Framework Act 1998, in particular, schedule 16 to that Act, makes comprehensive provision for the staffing of community voluntary controlled and community specialist schools. 4 Paragraph 29 of that schedule provides that the LEA shall not dismiss a person employed by them to work solely at the school, except as provided by paragraph 25. The Applicant in this case was employed by the LEA to work solely at the school in question. Paragraph 25 provides for a step by step process, which involves, respectively, the Governing Body making certain determinations and the LEA performing certain other roles. Put shortly, the scheme provides for the Governing Body to determine that a person employed to work at their school should cease to work there. It provides for any determination by them that the person should cease to work, to be notified to the authority in writing. If the authority is given formal notification of such a determination, then the authority is obliged to dismiss the person, either with due notice, or without notice. The authority's obligation is to act within a period of fourteen days, beginning with the date on which notification is given. 5 Paragraph 27(2) of the schedule imposes on the Governing Body the obligation to make arrangements for giving any person in respect of whom they have made a determination under paragraph 25(1) an opportunity of appealing against it before they notify the Local Education Authority of the determination. Thus, in essence, the Governing Body, having determined that the person shall cease to work at their school has first to give the opportunity for an appeal to be lodged, if no appeal is lodged, then they may notify the Local Education Authority, which is thereafter obliged to dismiss, but if an appeal is lodged then the Governing Body is obliged not to notify the LEA until the outcome of that appeal Thus where somebody does appeal against such a determination, the scheme necessarily involves that their employment with the LEA continues at least until the outcome of that appeal, and then only if the appeal is unsuccessful does their employment come to an end. 6 In the case of this Applicant, the Governing Body came to a decision at the end of June, beginning of July, that she should cease to work at the school. It communicated that decision to solicitors, apparently then acting for Mrs Pinnington, and to Mrs Pinnington herself. The letter to her solicitors was dated 29 June and was from the Employment and Community Services Manager of the Local Education Authority, but it seems implicit that in so acting, he was acting as an agent for the Governing Body. What he says is this: "
I write in respect of the hearing into the capability (ill health) of your client. I must inform you that the panel, after careful consideration of the facts pertaining to this matter, has decided to dismiss Mrs Pinnington. I enclose the decision of your Panel for your information. Your client has a right of appeal (within 7 days of receipt of the decision) against this decision to the Governing Body and I should therefore be grateful if you would inform me if your client should wish to appeal. It is for the Council of the City and County of Swansea to consider whether it is able to offer suitable employment. I shall therefore ask the Management Services Department to contact you in this respect." So far, one might say, so good. What is being recorded is a decision of the panel to dismiss, not an act of dismissal itself. It indicates that the Governing Body has made the requisite arrangements for an appeal. Insofar as it refers to suitable alternative employment, it seems that in that respect, it is either inconsistent with, or acting outside of, the statutory scheme, because it is plain that the statutory scheme does not give the LEA the power simply to redeploy somebody, but they must have their employment terminated. Whether, thereafter, alternative employment is offered under a new contract, would be a matter for the LEA." The Legislation[11]The relevant provisions of the legislation are found in the Employment Rights Act 1996 . By section 98 (1) and (2), capability is a potentially fair reason for dismissal, and this is defined by section 98 (3) as being "assessed by reference to … health or any other physical or mental quality."[12]Fairness in dismissal is defined by section 98 (4) which provides as follows:
"(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) - (a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case."
[13]Protection for "whistle blowers" is provided by section 103A:
"103A Protected disclosure An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure."
[14]The reference to protected disclosure is to Part IVA. This part of the statute protects workers against a detriment imposed upon them as a result of making to appropriate persons a disclosure in the public interest of wrongdoing by, for example, an employer or fellow employee. These provisions took effect on 2 July 1999, that is, the day before the Applicant's dismissal. It is not in dispute that if the Applicant was subjected to a detriment, or dismissed, in respect of disclosures she made prior to the Act coming into effect, she is nonetheless able to make a claim, provided the dismissal or detriment occurs after the Act came into effect: Miklaszewicz v Stolt Offshore Ltd [2001] IRLR 656.[15]The effect of these provisions is that a worker (defined more broadly than an employee) has the right not to be subjected to any detriment by his employer "on the ground that the worker has made a protected disclosure": section 47B. Where the worker is an employee, and a detriment consists of dismissal, section 103A applies. The Tribunal directed itself by reference to those provisions but did not turn its attention to the requirements under Part IVA for the making of a protected disclosure.[16]A qualifying disclosure is provided for by section 43B:
"43B (1) In this Part a "qualifying disclosure" means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following - (a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject."
[17]In the context of an employment relationship certain further requirements must be met, for section 43C (1) provides as follows:
"43C (1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure in good faith - (a) to his employer…"
[18]For other recipients of the disclosure, further requirements are imposed by section 43D, section 43E, section 43F, and section 43G " Disclosure in other cases ". In the last category is a condition that the worker "reasonably believes that the information disclosed, and any allegation contained in it, are substantially true." The Facts[19]The facts in what all Counsel describe as "this epic" are set out in pages 1 to 52 of the Tribunal's 58-page decision. Its conclusions are made in less than three pages, 55 to 58. There has been criticism by both sides of the approach to and the substance of the Tribunal's decision making. Both contend that the point in the case is a short one: for the Respondents it is a "crisp" point and for the Applicant, Mr Green in his Skeleton Argument describes "the short point", although it takes 8 pages to put it.[20]The relevant events in this case began in 1986 and ended on 8 January 2003, with the report of Dr Philippa Russell CBE to the National Assembly for Wales, commissioned at the instance of the Ministers for Education and Lifelong Learning and for Health and Social Services. This report is entitled " The Policies and Practice of Resuscitation: an in-depth study of lessons to be learned from events at Ysgol Crug Glas: Report to the National Assembly for Wales ." The report was published during the course of the Employment Tribunal proceedings.[21]The principal actors in this epic, apart from the Applicant, are Mr Richard Parry, Director of the LEA's Education Department, Mrs Elizabeth Jones, Head Teacher of the School from 1 January 1996, Councillor Phillips, Chairman of the Governors of the School, Mrs Cartwright, Chairman of the Personnel Sub-Committee and Councillor Mrs Wood, Chairman of the Governors' Appeals Committee, Mr Brian Davies, grandfather of a child at the School, and Ms Julie James, Head of Legal and Committee Services at the LEA.[22]The Applicant is a state-registered nurse and was employed on 20 February 1989 as a School Nurse at a school which amalgamated with the School on 1 September 1995. Following the appointment of Mrs Jones, with whom the Applicant initially got on well, a number of changes were set in place which the Tribunal described as follows:
"12. A new job description was prepared for the Applicant which is on page 136 of the Bundle. It begins "
Ysgol Crug Glas is an all age special school for pupils with severe and complex learning difficulties. Thirty-five pupils are taught by a team of 7 Teachers, including the Head Teacher, and in-class support is provided by a further 17 Support Staff'. The purpose of the role of School Nurse is said to provide emergency medical intervention for pupils and to administer medication. The job description is to be performed in accordance with the 1990 job description. The School Nurse was to be accountable to the Head Teacher for her daily duties and responsibilities and to the County Adviser for Health and Social Education in professional matters. Under 'Particular Responsibilities' it is said that the nurse is to be responsible for any medical intervention in school; in an emergency, and on a day-to-day basis. One of the key changes is to deal with any medical emergency which may arise during the school day and to monitor pupils who are taken ill during the school day or are recovering from a fit in the medical room and to arrange transportation home if necessary with the Head Teacher's approval. Also to give medication to pupils on a regular/emergency basis and to keep daily records..."[23]By the time of her dismissal on 3 July 1999 the Applicant had raised and frequently reiterated three complaints:(a) the School, or the Head Teacher, was implementing a policy of non-resuscitation in respect of a dying child; this is abbreviated by her Counsel as a "complaint of DNR (Do Not Resuscitate)".(b) the medical room in the School was inadequate;(c) untrained staff had access to medication for the children.[24]Concerns as to resuscitation were first raised in respect of a terminally-ill child "R" in June 1996. A care plan was adopted for him and the Applicant was advised by her representative, an officer of the RCN, that if the child suffered a cardiac arrest the Applicant would undertake cardio pulmonary resuscitation, unless specifically instructed not to (reasons para. 15). The Applicant felt she was duty-bound by her code of professional conduct to resuscitate when necessary. R died at home in November 1996 (para. 18). On 25 March 1997 the Applicant expressed general concern to Mrs Jones about the resuscitation of terminally-ill children (para. 21) and shortly thereafter raised concerns about the adequacy of the medical room (para. 23).[25]The primary source of the Applicant's concern about resuscitation is found in an exchange of correspondence which the Tribunal made findings about as follows:25. On the following day 13 May the Applicant wrote a letter to Mrs Jones regarding a child Anna Marie Davies and stated that she had been instructed that resuscitation was not to be done. The Applicant says that this was conveyed as an instruction from both Mrs Jones and Mrs Williamson the Class Teacher. The response by Mrs Jones is contained in a letter on pages 178 and 179 of the Bundle. Mrs Jones explained the change in function of the present medical room was necessitated by having to provide a room where staff can take their lunch breaks. In relation to the resuscitation Mrs Jones wrote "Having discussed resuscitation with your union representative, you were told that 'to resuscitate a dying child was immoral', and that a child should be allowed to die with dignity. Resuscitation is an emergency procedure which is intended to save life. The resuscitation of a dying child with enlarged internal organs could in fact kill that child. When you raised the possible repercussions on yourself if you did not resuscitate and suggested that a letter from a Consultant Paediatrician should confirm this, your union rep agreed that this would be useful. I then mentioned that we had a child in school who was dying, and if this was required to give you 'protection' asked you to contact the Consultant immediately for clarification as a situation could arise in the near future. Why have you not followed my instruction? This meeting took place on 25 March. On 12 May if became necessary for me to instruct you yet again to contact Dr White. I do not find this satisfactory as it has led to a difficult situation which would have been avoided if you had followed my instruction. In the midst of all this was a child! You seem to regard your professional code of conduct as being more important than the child. This is not acceptable. The child must obviously come first, as stated both by you, your union representative and myself. You are requested to attend a meeting at 2.00pm on Tuesday, 19 May with Sharon Davies the SEN Manager and myself in order that these issues are finally resolved."26. On 14 May 1997 the Applicant wrote to Dr White in which she said "I have made my position clear to Mrs Jones (Head Teacher). That is, until I get a written DO NOT RESUSCITATE order from the relevant medical authority then I will act appropriately." The Applicant did telephone Dr White about this time but received a message via Dr White's secretary that Dr White was unable to provide a letter or discuss the matter until it was clear who was responsible for the child.27. Mrs Jones then wrote to Mr Wallace regarding the issue of resuscitation not being clarified. That letter is on page 181 of the Bundle. It appears that neither Dr Carr-Hill (the Community Paediatrician attached to the school) or Dr Maddox (Paediatrician) recall ever having seen that letter (see page 585 of the Bundle).28. By letter dated 15 May 1997 Mr Wallace wrote to Mrs Jones the Head Teacher in which he says "With reference to the issue of resuscitation, I agree with the comments of immorality regarding the resuscitation of terminally ill children and the need to allow people in this condition to die with some dignity. I understand your sentiments and concerns but do not feel that moving Mrs Pinnington away from the immediate locus of the child will resolve the situation. The simplest solution is to ensure that there is a written instruction from the attending General Practitioner or Medical Consultant, indicating that there is a no resuscitation order. I fail to see why there is some difficulty in obtaining this instruction. I would have felt that there would be room to resolve this matter locally without having to involve me in any formal capacity in seeking a resolution here, although I am happy to do so if you require this but my stance at this stage would remain that Mrs Pinnington is correct in that she requires a medical instruction not to resuscitate. It is insufficient that the instruction be given to her by any other person"."[26]At a reconvened meeting on 23 May 1997 it was agreed that the Applicant would resuscitate any child whose medical condition required it. Dr White advised that the legal position was that resuscitation was required (para. 30).[27]This exchange triggered the Applicant's complaint made direct to the LEA on 3 June 1997 against Mrs Jones. The LEA recognised the gravity of the allegation and decided to undertake a full investigation (para. 33). This is known as "the first enquiry". The officers reported on 15 September 1997 as follows: "40 … "Whilst officers can understand how Mrs Pinnington has formed the opinion that the Head has operated a non resuscitation policy at the school, investigations found no supporting evidence to corroborate or substantiate this viewpoint. All of the staff at the school interviewed stated categorically that there is no such policy. Mrs Jones has obtained medical evidence (appendix 3 – letter Dr Sylvia Carrhill, Associate Specialist and Community Child Health – page 187) who dismisses the existence of a non resuscitation policy at the school." Further the panel of the Investigating Officers said "The panel may feel that the way in which the Head Teacher handled the whole situation with Mrs Pinnington raises some questions about her management style. Matters which perhaps could have been dealt with and resolved at an early stage were allowed to develop and when matters were finally brought to a conclusion, the responses were reactive and open to interpretation"."[28]As a result it was decided that there were no grounds to recommend formal proceedings, but that the Applicant might choose to do so. This was reiterated at an informal meeting on 16 September, and on 17 September 1997 the Applicant was certified sick with anxiety and stress. She remained so certified until 31 March 1998 when she returned to work. This lasted until 29 April 1998 when she went again on sick leave and never returned to work.[29]On her first day back at work the Applicant was handed the Care Plan in respect of the child Anna Marie Davies, whose case had been discussed in May 1997 (para. 58). The Applicant considered that this Care Plan was "non resuscitation in disguise" (para. 60). She made a formal complaint through her solicitors on 9 April 1998 alleging that; and that medically untrained staff had access to drugs; the medical room was inadequate and the LEA was engaged in a "whitewash". She called for an independent panel to investigate Mrs Jones and to suspend her in the meantime (para. 60). The LEA took the matter very seriously and said it would carry out an immediate investigation (para. 62). Instructions were given to all staff that if a child collapsed resuscitation should take place (para. 63).[30]On 23 April 1998 the LEA denied that it and the School had a DNR policy.[31]By the time the Applicant went sick again on 28 April 1998 she was a member of a whistle-blowers organisation and suffering ostracism by staff as a result of her concerns (para. 70). She was not prepared to engage in the second enquiry set up by the LEA (para. 73).[32]On 6 June 1998 the Applicant and her husband called to see Mr Brian Davies and his wife and explained her concern that there was a DNR policy at the School in respect of their granddaughter Anne-Marie (para. 80). On 1 July 1998 Mr Davies made a formal complaint to the Director of Education of the LEA (para. 88). He declined to be interviewed until Mrs Jones had been suspended but subsequently agreed (para. 89).[33]On 2 July 1998 Mr Parry suspended the Applicant "to allow investigations to be fully investigated and that this action was not disciplinary action". The Tribunal found as follows:
"91. The allegations were three fold. Firstly breach of confidentiality by discussing a confidential document on a particular child at Ysgol Crug Glas with another parent; After being advised by letter in September 1997 not to discuss the first investigation with anyone or this would be construed as gross misconduct and from the information received suggests that the Applicant had discussed the matter with the parent and that whilst on sick leave from the employment of the school she had visited a parent of the child at the school. The Applicant was told that neither herself nor her representatives should discuss any matters related to either investigation at the school with any parent, guardians or employees of the school. Neither should the Applicant nor the representative contact any outside agencies. If she did this would be considered repeated gross misconduct."
[34]The Governors of the School met that day and expressed their confidence in the Head Teacher (para. 93). The Applicant was meanwhile suspended on full pay. Further investigations were set en train on 4 and 10 April 1998 and there was an oral hearing chaired by Councillor David Phillips on 29 and 30 July 1998 (para. 112). The conclusion of this, the second enquiry, was as follows:
"113 …The overall conclusion is on page 442 in which it was said the following [needed] to be considered by the Governing Body. Firstly, there is no evidence that a "non resuscitation policy" was operated. The Head Teacher did not follow the resuscitation policy in drawing up care plans by not consulting either the grandparents of medics on Care Plan 2 (that is a care plan that has a 2½ minutes reference). Secondly, the school followed the guidelines on the administration of medicines. The Governing Body is advised to agree a written policy and procedure for the administration of medicines in consultation with the LEA and IMH. Thirdly, the Welsh Office guidelines on medical rooms are not being met and action needs to be taken to rectify this in consultation with the LEA. Fourthly, the Head Teacher spoke to the grandmother of the pupil concerned on 17 April. There is no evidence as to the construction that should be put on this. In respect of the allegation against the Applicant the conclusion is on page 446 which is that it appeared to the Investigating Team that the Applicant behaved professionally and the situation was handled correctly and that it may have been advisable for the nurse to have given positive advice on whether child 'X' should have had food or not. However there is no reason to take any action against the Applicant. The school needs to ensure there are written guidelines for advising the Head Teacher in such situations."
[35]The report was submitted to a sub-committee of the Governors which decided that the matters would be processed not as a grievance but as a complaint (para. 115). The complaints were heard over four days (para. 116). The Welsh Office became involved on 11 August 1998, being concerned that three relevant witnesses had not been interviewed.[36]On 15 September 1998 the report of the panel, concluding the second enquiry, was presented to the Governors of the School which resolved as follows:
"120. … (1) In respect of the first allegation there was no evidence of any such policy on non resuscitation. They considered the care plan in question was only on the notice board for a few days in which time the child in question was not in school. It also found the staff who were interviewed in the course of the investigation would not have interpreted the care plan in a way that would put a child in danger. Indeed the child in question had been resuscitated on a number of occasions.] (2) In respect of the second allegation the panel accepted the evidence of the Investigating Team that everyone interviewed either had not been administrating medicine or had been trained to do so. It was normal practice for the Applicant to administer drugs and only in her absence would someone else do so. That person would have been trained to do so. Nevertheless the Governing Body was advised to agree a written policy and procedure for the administration of medicines in consultation with the Local Education Authority and IMH. In was found that entries in the medical book record had two signatures most of the time which was the better than best practice. (3) In respect of the third allegation the medical room did not have running water although the panel accepted the Welsh Office guidelines on medical rooms were not being met and action needed to be taken in relation to this. It was considered this complaint was against the Local Education Authority rather than the Head Teacher Mrs Jones. (4) Finally the panel considered that in respect of the final allegation there was no evidence of a construction that could be [placed] upon the conversation. In respect of the allegation against the Applicant it was found that the Applicant's management was inadequate but the deficiencies were not significant and did not affect the outcome."
[37]On 25 September 1998 the chair of the Governors wrote giving the decision of the Governors: "124 …(1) "In respect of the four complaints by the School Nurse regarding the Head Teacher, the panel finds that none was substantiated, save in relation to the lack of running water in the medical room. This complaint in any event should have been directed to the Local Education Authority. This problem has now been remedied." In respect of the above it was concluded by the Investigating Panel that "There is no evidence of a non resuscitation policy operated at the school, whether overtly or covertly, in practice or by default."(2) "In respect of the complaint by the Head Teacher against the School Nurse the panel recommends no further action is necessary.(3) The panel does find that there are management and other issues arising from these complaints which need to be addressed, both by the Governing Body and the Local Education Authority which will be made in the near future"."[38]On 9 November 1998 the Welsh Office again became involved concerning the evidence of Dr Carr-Hill (para. 126).[39]On 14 November 1998 the Applicant made her first claim to the Employment Tribunal alleging she had been caused serious ill health by the way she had been treated by her employers (para. 130).[40]On 14 December 1998 the LEA responded to the Welsh Office's queries indicating that it supported Ms Jones' evidence. The Welsh Office apparently was not satisfied (para. 135) and on 10 February 1999 the Applicant asked the Welsh Office to set up a full independent enquiry.[41]On 8 and 10 March 1999, following a School inspection, the medical room was regarded as unsatisfactory (para. 140).[42]On 22 March 1999 the Governors met to discuss a staff capability procedure for the teaching staff and resolved that the sickness procedures policy should be followed in respect of the Applicant (para. 141). In accordance with those procedures the Applicant was asked to attend a meeting on 19 April 1999 (para. 142). Her case was:
"142. …She would not be ill if they had dealt properly with the complaints and they had left her in an impossible situation in relation to attending the school. It was confirmed that the Applicant was fit to return to another school. The Applicant's solicitors said they felt no further medical information was necessary."
[43]Meanwhile, the disciplinary matter in respect of which the Applicant had been suspended on 2 July 1998 was in abeyance pending consideration of the capability issue (para. 143).[44]On 14 April 1999 the Secretary of State expressed his concern about resuscitation procedures in respect of two children and individual care plans being drawn up without adequate consultation and medical advice (para. 144). The School should not have a different policy in relation to resuscitation from other schools. To that end the LEA was asked to review its policies (para. 144).[45]On 14 May 1999 a report was given to the Personnel Sub-Committee of the School by the LEA in accordance with the sickness policy (para. 149). The Applicant was held by medical opinion to be permanently unfit to return. A capability hearing was held on 7 June 1999. The medical evidence offered by the Applicant was all one way: the Applicant "was unable to return" to the School (para. 151). She was concerned that she would have to work with those with whom she disagreed and with those who had been the author of the Care Plan. In short, she could not work while Mrs Jones was there (para. 151).[46]The Personnel Sub-Committee concluded the Applicant was unable to return to the School and it was resolved that she should be dismissed with immediate effect.[47]The letter dated 29 June 1999, and another 1 July 1999 dismissing the Applicant was received on 3 July 1999 and this is accepted to be the date of dismissal. The Applicant appealed in accordance with the relevant regulations and the appeal was heard on 4 October 1999. On 19 October 1999 the Applicant was notified of the decision to uphold the dismissal.[48]On 1 July 1999 the responsibilities of the Welsh Office transferred to the National Assembly for Wales. The Applicant continued to press for an independent enquiry but the First Secretary responded on 16 August 1999 that there was no need for such and "there were no grounds to question the commitment of the Local Authority, Health Authority and the School in addressing his concerns with an appropriate seriousness and urgency" (para. 147).[49]On 19 July 1999 an application for permission to apply for judicial review on behalf of Anne-Marie's grandfather was heard before Sullivan J. The judge refused the application holding that the Head Teacher did have a "do not resuscitate" policy in 1998 but:
"It was introduced for a matter of a few days only. It was introduced by the headteacher who was then in post but who is at the moment off work on sickness leave. As soon as the matter was reported to the education authority they made it perfectly plain that there was not a non-resuscitation policy and set about having an investigation. Thus one is being invited to review a policy which existed for a very few days some considerable while ago and was then promptly corrected. I do not see any useful purpose that would be served in granting permission to apply for judicial review in respect of such a decision."
[50]An application was also made in respect of the decision not to hold an independent investigation into the happenings in 1998. Sullivan J refused permission on this point as well. The complaint that the investigation was flawed was put to the Secretary of State who declared as follows:
"I am not persuaded that an independent enquiry into the events at the School would cast further light on the matter."
[51]Thus, he held, the decision not to hold an independent investigation was not unreasonable, bearing further in mind the "practical consideration" that the Head Teacher was no longer in post and may not have given evidence if an enquiry were called. The judge found as a fact that the policy had been implemented, it was withdrawn and had not been enforced again after April 1998.[52]On 20 November 2000 the Minister for Education and Lifelong Learning confirmed that the Welsh Assembly did not believe a public enquiry would serve any practical purpose into the events taking place at the School in 1997 and 1998. In June 2001 the Welsh Administration Ombudsman dismissed a complaint against the Secretary of State relating to delay in his decision not to hold an independent enquiry into the School.[53]The report of the Council for Disabled Children, headed by Dr Phillipa Russell CBE, was published on 8 January 2003.[54]The Tribunal concluded that the principal reason for the dismissal was the Applicant's capability due to illness. This was the real reason for the dismissal. The relevant Governors, Mrs Cartwright and Mrs Wood acted independently in reaching the conclusions which they did. The Respondents did not act maliciously in causing the Applicant's ill health which incapacitated her and which resulted in her dismissal. The enquiries set en train following the Applicant's complaints were thorough and detailed with all the relevant questions being asked. These met the objective standards of a reasonable employer. The Applicant refused to go back to her place of work and she acted unreasonably in doing so. The decision to dismiss her met the test of reasonableness in section 98 (4).[55]As to the suspension, the Tribunal found that the Respondents were entitled to suspend her because of disclosures made to parents in circumstances where questions of breach of confidence arose. The Applicant had "an unjustified sense of grievance" and if that caused her ill health it could not amount to a detriment for the purposes of the Act. The Tribunal found she suffered no detriment during this brief period, 2-3 July 1999. In any event, that brief period was " de minimis ". The Applicant's Submissions[56]Mr Green's Skeleton Argument ran to 61 pages with an additional 20 pages of annexes. His supplemental note used for the full hearing ran to 19 pages. We have already referred to the written submissions which he presented at the Employment Tribunal and which were submitted to us on 19 April 2004 after our hearing, and these run to 55 pages.[57]We are quite certain that his client will feel we do not do justice to all his arguments, but on the other hand we have attempted to marshal the essential submissions relevant to the appeal. For this purpose we have concentrated on the supplemental note and looked briefly at the Skeleton Argument which, for reasons which we gave in an interim judgment, was not read in detail as it was made late.[58]Mr Green's submission is asserted to be a head-on challenge to the whole approach of the Tribunal from which he did not shrink, as he put it in his argument. Although at one stage he reduced his submissions to what he described as three pillars, his submissions went wider. The three pillars are that the Employment Tribunal wrongly found that: the Respondents had carried out a detailed investigation; the Applicant had an unjustified sense of grievance; and the reason the Applicant could not return to work was because the relationship between her and the School broke down following her allegations about the DNR policy. This caused her ill health. The Tribunal was wrong to apply the objective standard of a reasonable employer set out in Sainsbury's Supermarkets Ltd v Hitt [2003] IRLR 230.[59]In what Mr Green described as "the short point", his supplemental note contains two examples. The first is that the documentary material before the Tribunal established that there was a DNRR plan in respect of at least one child at the relevant time. The Tribunal failed to recognise that point. Secondly, the Tribunal failed to consider what were contended to be straightforward breaches of contract within the context of fairness under section 98 (4). The Respondents' Case[60]On behalf of the Respondents it is contended that no less than six enquiries have been conducted into the events of April 1998, none of which satisfied the Applicant yet all of which were the subject of findings essentially against the Applicant's case. The Tribunal heard evidence from the relevant actors whose genuine belief that the Applicant was incapable of ill health was upheld by the Tribunal, the relevant Governors acting on their own and not pursuant to any direction of the LEA.[61]The Applicant's case on "whistle-blowing" was essentially grounded upon her allegation that what she was saying was true. Yet this is not the requirement under the Employment Rights Act 1996 . It is contended that the Applicant's appeal is based upon the same misconception; truth rather than belief in truth.[62]The Tribunal over 10 days examined the relevant witnesses and the documentary material and came to a conclusion which was open to it, and which was not perverse. The Tribunal correctly considered the question of the cause of the Applicant's illness and held it was nothing to do with any malice on the part of the Respondents. See London Fire and Civil Defence Authority v Betty [1994] IRLR 384 and Edwards v Governors of Hanson School (unreported 10/01/2000, CA, per Sedley LJ)[63]The Tribunal gave sufficient reasons for understanding the decision which it made and could not be criticised for not being " Meek -compliant" ( Meek v City of Birmingham District Council [1987] IRLR 250 ). The Legal Principles[64]The relevant legal principles to be applied in this case appear to emerge from the following authorities.[65]A tribunal must give proper reasons for its decision: Meek (above).[66]Generally speaking 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 (above). But if an employer or someone acting for the employer acted maliciously or wilfully caused an employee to suffer incapacitating ill health resulting in dismissal there is no reason why that should not lead to a finding of unfair dismissal: Edwards v Governors of Hanson School [2001] IRLR 733, EAT Bell J, pursuant to the judgment of Sedley LJ following an agreed remission to the EAT on the question of whether it was arguable "that it is not necessarily just and equitable to deny an applicant a compensatory award if it be the case that the illness which made his dismissal inevitable was itself brought about by the way the applicant was treated by the employer." [cited in the headnote in the EAT report above].[67]In the case of misconduct and capability, the need to apply objective standards of the reasonable employer applies as much to the question of whether an investigation was reasonable in all the circumstances as it does to other procedural and substantive aspects of the decision to dismiss, in respect of a conduct reason: Sainsbury's Supermarkets (above).[68]Where the issue before a Tribunal is to decide the reason why a person dismissed an employee, that is a question of fact and not a legal conclusion which is a question of law: Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065 , 1072, para. 29, per Lord Nicholls. A search for the reason involves an examination of the mental processes of the relevant employer.[69]In conduct cases, objective standards of reasonableness apply to the investigation of the complaint: Sainsbury's Supermarkets (above). We see no reason why similar objective standards, falling within a band of reasonable responses, should not also apply to the way in which employers "inform themselves upon the true medical position" (per Phillips J in East Lindsey District Council v Daubney [1977] ICR 566 ) prior to dismissing on the grounds of ill health.[70]Particular care needs to be taken in respect of claims of dismissal or detriment suffered by whistle-blowers, for, as Mummery LJ said in Alm Medical Services Ltd v Bladon [2002] IRLR 807 :
"The self evident aim of the provisions is to protect employees from unfair treatment (that is victimisation and dismissal) for reasonably raising in a responsible way genuine concerns about wrongdoing in the workplace. Provisions strike an intricate balance between (a) promoting the public interest and the detection, exposure and elimination of misconduct, malpractice and potential dangers by those likely to have early knowledge of them, and (b) protecting the respective interests of employers and employees. There are obvious tensions, private and public, between the legitimate interests and the confidentiality of the employer's affairs and in the exposure of wrong."
Conclusions[71]Applying those principles to the circumstances of this appeal, we have decided that the Tribunal's decision as to unfair dismissal was correct. In Selkent Bus Co Ltd v Moore [1996] ICR 836 Mummery P drew a distinction between "ordinary" and "specific" unfair dismissal. A specific unfair dismissal does not require the Applicant to have 12 months' service and includes dismissal on the grounds of having made a protected disclosure, or being a trade union activist (as in Selkent ). The distinction is very useful. In the present case, the Tribunal approached its task as one of simple alternatives: dismissal for ill-health or dismissal for protected disclosure?[72]Since the relevant officers genuinely believed the Applicant was incapable by reason of ill-health of continuing her duties, the reason for dismissal was capability, and having considered alternatives, the dismissal was fair in procedure and substance. The first panel of the School, and on full rehearing the appeals panel, was each entitled to rely upon the investigation of the circumstances. It may well be that the Applicant can point to documents relating to what she contends is a DNR policy in 1998 by reference particularly to the material supporting Mr Gren's first example under his "short point", and to the judgment of Sullivan J, but those matters were before the investigators and before the relevant decision-makers.[73]The Tribunal found that the panels chaired respectively by Ms Cartwright and Ms Wood had considered the relevant investigations and were entitled to rely upon them. The Tribunal was not there to substitute its view of the quality of the material put before the investigators or the two panels.[74]We cannot see that the Employment Tribunal has committed an error of law when it upheld the School's decision on ordinary unfair dismissal.[75]We reject the contention that the Tribunal was bound to find the dismissal unfair since the first EAT under Judge Wilkie QC had decided that the dismissal was in breach of contract and of the procedures laid down in the 1998 Act. The Applicant's complaint of wrongful dismissal, being dismissed without a prior opportunity to appeal, was in fact and in law cured by the payment of the Applicant throughout the appeal process, as required by the procedures, which extended beyond three months. Even if this was technically a wrongful dismissal, as a matter of fact the Applicant was allowed to operate the statutory appeals process, and was paid throughout, pursuant to the statutory regulations. Those circumstances, in themselves, would not make unfair on procedural grounds what was otherwise a fair dismissal.[76]The Employment Tribunal was not unaware of the decision by the EAT and its failure to deal specifically with the point does not seem to us as a matter of substance to vitiate its decision.[77]The substantive merits of the case, for the purposes of section 98 (4), would include whether or not the Applicant was afforded a procedure set out in her contract or in statutory regulations, and corresponding rights to payment. Since both of those were in fact afforded to her, there is no substantive merit in this aspect of her appeal.[78]Turning to protected disclosures, having set itself the task of distinguishing between two possible reasons for dismissal, and having upheld the Respondent's contention, the Tribunal did not feel it necessary to answer the claim of specific unfair dismissal. An insight into what it would have done is given by its treatment of the claim that the Applicant suffered a detriment on 2 and 3 July 1999. It did not analyse the components of section 43C, or whichever other section in Part IVA it considered relevant. It held as a matter of law that "an unjustified sense of grievance causing ill health cannot amount to a detriment for the purposes of the Act" (para. 186). That is not the test. Section 43C requires a decision on whether there was a protected disclosure and whether it was in good faith.[79]The Tribunal did not decide whether this sense of grievance deprived the Applicant of a finding that she acted in good faith. Rather, since much of this case has, as the Respondents contend, been about the Applicant's search to vindicate the truth of her contention, the Tribunal's use of the word "unjustified" might be thought to refer to whether there was a reasonable belief that the allegation the Applicant made was substantially true. This is a requirement of section 43G and 43H, but does not apply in the instant case which is regulated by section 43C: disclosure to an employer.[80]The Tribunal ought to have made a decision on whether the continuation of the Applicant's suspension, on grounds of the disclosure by the Applicant to Mr Brian Davies, for the two days following the implementation of the Public Interest Disclosure Act 1998 provisions, was a breach of the Act.[81]Neither the Employment Tribunal nor the advocates referred to the definition of "detriment" in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 (HL), decided prior to the decision in this case, where it was held that it was not necessary for the purposes of sex discrimination for an Applicant to demonstrate some physical or economic consequence in order to demonstrate detriment. The matter was to be decided by considering whether a reasonable worker would or might take the view that the treatment accorded to her had in all the circumstances been to her detriment. On the rather artificial footing that the alleged detriment operated for only two days, the Tribunal was nevertheless bound to adjudicate upon it.[82]This ground of appeal succeeds, but may be overshadowed by what we say next.[83]As for dismissal, the case presented to the Tribunal was a choice between two alternatives in determining the reason for dismissal. Yet if the test of causation is relevant, a decision based upon such a choice may be elusive. Causation is relevant to finding the reason for dismissal. This is because in Edwards (above) the EAT held that in certain circumstances it was relevant to look beyond the immediate reason (ill health) and consider whether the ill health of the Applicant was caused by the malicious act of the employer. If it was, that might make the dismissal unfair, notwithstanding all proper procedures relating to dismissal on the grounds of ill health had been complied with.[84]In most cases where a specific unfair dismissal is alleged - trade union activity, health and safety grounds, pregnancy, asserting a statutory right - a potentially fair reason is asserted by the employer, e.g. capability, performance, misconduct. In such cases it is at least possible, although it may not be easy, to separate the two sets of circumstances and a decision based on either one or the other being the reason for dismissal is exigible. Where the two are interrelated, however, it is difficult to separate them. The tensions which Mummery LJ identified in Alm (above) may be fully ventilated, e.g. an employee who makes a disclosure is dismissed for breach of confidence.[85]But there is another category of case where a chain of causation requires closer analysis. The reasoning of Mummery P in O'Neill v Governors of St Thomas More School [1996] IRLR 372 was relied on by Mr Green. There, a teacher of religious education and personal relationships at a Roman Catholic school became pregnant as a result of a relationship with a priest and she was not allowed to return to the school after the birth of their child. She claimed unfair dismissal and unlawful discrimination on the ground of gender. The unfair dismissal claim was conceded (this was before section 99 gave a right of specific unfair dismissal on the grounds of pregnancy). Her claim of sex discrimination was dismissed. The decision was overturned by the EAT. The decision of the Governors was made in order to preserve the ethos of the school. But it was based upon the teacher's pregnancy and was therefore based upon her sex.[86]The EAT required a causation approach to be taken to the question of whether or not the dismissal was "on the ground of her sex". The EAT expressly adopted the "but for" test in James v Eastleigh Borough Council [1990] ICR 554 (HL). But later in Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065 , 1072 para. 29 Lord Nicholls said this:
"29 Contrary to views sometimes stated, the third ingredient ("by reason that") does not raise a question of causation as that expression is usually understood. Causation is a slippery word, but normally it is used to describe a legal exercise. From the many events leading up to the crucial happening, the court selects one or more of them which the law regards as causative of the happening. Sometimes the court may look for the "operative" cause, or the "effective" cause. Sometimes it may apply a "but for" approach. For the reasons I sought to explain in Nagarajan v London Regional Transport [1999] ICR 877 , 884-885, a causation exercise of this type is not required either by section l (l) (a) or section 2. The phrases "on racial grounds" and "by reason that" denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact."
[87]It must be said that this point was not argued before the Employment Tribunal and is not contained in the Applicant's Skeleton Argument. On behalf of the Respondents, it was contended that it did not apply to the instant case. We agree. Given Lord Nicholls' holding above, it must be doubted whether O'Neill , based as it was on section 1 (1) (a) of the Sex Discrimination Act 1975 and the application of causation tests, remains good law.[88]It is of course possible that the decision-makers, Ms Cartwright and Ms Wood and their panels, considered there might be a connection between the protected disclosure, the illness and the dismissal. But the Tribunal found as a fact that their reason was simply the lack of capability due to ill health of the Applicant. The Tribunal satisfied itself that malice played no part in the reason for dismissal. A judgment of fact by the Employment Tribunal as to what was the reason or principal reason for dismissal is not susceptible to appeal.[89]We are fortified in our view of the correctness of the decision on dismissal by consideration of the policy behind the Public Interest Disclosure Act 1998 , which will be of assistance to the Employment Tribunal when it considers the point we have remitted to it. A person who is dismissed for raising a proper allegation is unfairly dismissed. The proper response by an employer to such an allegation is to investigate the complaint. If the complaint is upheld, the complainant is vindicated. If on investigation the complaint is not upheld, the complainant may feel let down, but nevertheless her right to make protected disclosures will have been vindicated. Of course, an employer may conduct a full investigation and still take unlawful action against a complainant. But if the employer is genuinely seeking to get to the bottom of the complaint, and to take appropriate action if it is upheld, it becomes less likely that dismissal of the complainant, if it takes place, is unfair. Other reasons may intervene. A person who makes a protected disclosure is not forever protected against dismissal because the connection between the disclosure and the dismissal may be unsustainable.[90]In the present case, even assuming the Applicant made a protected disclosure meeting all of the criteria of the Act, she is protected from dismissal only if the reason for the dismissal is the protected disclosure. Where another reason emerges, which is upheld as a matter of fact by the Employment Tribunal, it is easy to see, but hard for the employee to accept no doubt, that although the dismissal came after the protected disclosure the disclosure was not the reason for the dismissal.[91]An employer who responds to a complaint with a detailed and thorough investigation is, in our judgment less likely unfairly to dismiss the complainant for that reason.[92]We would very much like to thank all advocates for their written and oral presentations. We sincerely hope that all those connected with the issues raised by the Applicant in the course of her career at the School from 1996 may be able to put these events behind them, once the outstanding issue we have identified has been determined.[93]The appeal against dismissal is dismissed; the appeal against unlawful detriment is allowed and remitted to the Employment Tribunal for a decision in accordance with the directions in this judgment if the parties cannot resolve it between themselves.