PAS LTD v MISS S BURROWS [2007] UKEAT 0489_06_0603

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2007] UKEAT 0489_06_0603Case No Appeal No. UKEAT/0489/06Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
PAS LTDAPPELLANTMISS S BURROWSRESPONDENT
Before
His Honour Judge Birtles Mr I Ezekiel Ms P TatlowDate 6 March 2007
[1]APPEARANCES For the Appellant MR PAUL CADNEY (Of Counsel) Instructed by: Messrs Lyons Davidson Solicitors Bridge House 48-52 Baldwin Street Bristol BS1 1QD For the Respondent MR PETER DOUGHTY (Of Counsel) Instructed by: Messrs Pengillys Post Office Chambers 67 St Thomas Street Weymouth Dorset DT4 8HB SUMMARY PUBLIC INTEREST DISCLOSURE Reason for dismissal including substantial other reasonable adjustments The ET misdirected itself as to the burden of proof for S100 ERA 1996 dismissals in the light of Kuzel v Roche Products Ltd UKEAT/0576/06/CEA. Appeal allowed on that basis only. Case Remitted to ET for further consideration. HIS HONOUR JUDGE BIRTLES This an Appeal from the reserved judgment of an Employment Tribunal sitting in Southampton. The reserved judgment was sent to the parties and entered into the Register on 11 July 2006. The Chairman was Mr C E H Twiss and the members were Mr W C Brina and Mr R M Eldridge. By a majority the Tribunal found the following:(1) The Claimant's complaint pursuant to Section 48 Employment Rights Act 1996 (complaining of a detriment relating to health and safety under Section 44) was found proved.(2) Her claim of unfair dismissal, pursuant to Section 100(1)(c) (dismissal for a health and safety reason) is proved.(3) Her Claim of unfair dismissal pursuant to Section 103A (Protected disclosure) is proved.(4) The complaint, pursuant to Section 48(IA), that the Claimant was subjected to a detriment on the ground that she had made a protected disclosure is found proved. Following that the Tribunal would set a date for a Remedy Hearing.[2]It is unnecessary to set out the reasons of the Tribunal which are full and we have found very helpful. The Chairman dissented from the majority decision of the two lay members. The matter has come before us this morning on an Appeal by PAS Ltd, the employer. Again, it is unnecessary to refer to the Grounds of Appeal. What has happened is this. In paragraph 11 of its judgment the Employment Tribunal considered the question of the burden of proof in cases involving a protected disclosure dismissal or a health and safety issue dismissal. It said this:
"11 Counsel were in agreement that the appropriate procedure for us to follow in considering our decision is first of all to determine whether or not the Claimant has proved primary facts from which we could conclude that any detriment (or dismissal) was on the ground that she had made a protected disclosure or was caused by a health and safety issue. If she proves such facts, on the balance of probabilities, then the burden of proof passes to the Respondents and if they cannot prove that the detriment or dismissal were not on the ground of the protected disclosure or health and safety, the Claimant succeeds. This is the procedure adopted in discrimination cases and particularised in Igen v Wong , [2005] IRLR 258 CA. We are aware of no authority which applies those principles to unfair constructive dismissal cases but the logic of doing so is compelling. We adopt counsel's joint submission. General considerations of fairness under Section 98(4) are irrelevant."
[3]Last Friday, 2 March 2007, another panel of the Employment Appeal Tribunal consisting of His Honour Judge Peter Clark, Mr K Edmondson and Mr J C Shrigley handed down a reserved judgment in the case of Dr R Kuzel v Roche Products Ltd UKEAT/0576/06. Although I was aware that a judgment was to be handed down on Friday I was not aware of its contents. Unfortunately I was abroad on Thursday and Friday of last week and have only seen the judgment this morning. Once I saw it I arranged for copies to be made for the lay members and for counsel. We have now had the opportunity of reading that judgment. In that judgment delivered by His Honour Judge Peter Clark that panel of the Employment Appeal Tribunal has unanimously disagreed with the approach taken by the Employment Tribunal in this case in paragraph 11 of its judgment. In particular it has stated in paragraph 47 of its judgment a different test for an Employment Tribunal to adopt in approaching a case of dismissal for a protected disclosure Section 103A dismissal. The case itself did not involve a dismissal for health and safety reasons but it would seem to us that the reasoning is the same.[4]I have invited counsel to address us as to the approach we should take in the light of the judgment of the Clark Tribunal on 2 March 2007. We are all agreed that the only appropriate course in fairness to both parties is to allow the Appeal in this case on the sole basis that the Employment Tribunal made an error of law in paragraph 11 of its judgment as to the correct way in applying the burden of proof in a Section 103 or health and health issue at dismissal.[5]The correct statement of the law is that contained in paragraph 47 of the Clark Decision in Dr R Kuzel v Roche Products Ltd . We therefore allow the Appeal on that sole basis without expressing any view on the grounds set out in the Notice of Appeal. We follow the reasoning of the Clark Tribunal in paragraphs 54 and 55 of its decision. We order remission to the same Tribunal. It is a matter for that Tribunal as to whether this issue can be dealt with by way of written submissions or by oral representation. It seems to us that no further evidence is required unless specifically directed by the Tribunal in advance of its consideration of the matter again.