Melia v Magna Kansei Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CHADWICK,LADY JUSTICE SMITH,LORD JUSTICE WILSON |
| Judgment Date | 04 November 2005 |
| Neutral Citation | [2005] EWCA Civ 1547 |
| Docket Number | A2/2005/0404 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 November 2005 |
[2005] EWCA Civ 1547
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(MR JUSTICE BURTON)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Chadwick
Lady Justice Smith
Lord Justice Wilson
A2/2005/0404
THE APPELLANT APPEARED IN PERSON
MS ALISON RUSSELL AND MR RICHARD TUTT (JUDGMENT ONLY) (instructed by Messrs Vizards Wyeth) appeared on behalf of the Respondent
This is an appeal from an order made on 26 November 2004 in the Employment Appeal Tribunal (Burton J, President, Mr Gammon MBE and Mr Singh) on the hearing of an appeal from a decision of the Employment Tribunal, sitting at Newcastle-upon-Tyne, entered on 2 February 2004.
The proceedings before the Employment Tribunal arose out of the circumstances in which the appellant in the Appeal Tribunal and before us, Mr Adrian Melia, terminated his employment without notice on 9 November 2001. Mr Melia was formerly employed by the respondent to these proceedings, Magna Kansei Limited, a manufacturer and supplier of components to the automotive industry carrying on business in this country at Pennywell Industrial Estate, Sunderland, Tyne and Wear. The employer is a member of an international group of companies controlled from Canada and Japan.
Mr Melia was recruited as senior design engineer. From 1 January 1999 he was employed as manager of the design department. He has conducted his appeal in person, as he did before the Employment Appeal Tribunal. It is right to recognise, as I do, the skill with which he has done so. His written submissions demonstrate a well-researched appreciation of the relevant principles in this area of the law; and his oral submissions—in a matter in which he is personally involved and in relation to which he is entitled to feel aggrieved—have been moderate, sharply focused and concise.
In his application to the Employment Tribunal, presented on 9 November 2001, Mr Melia complained of "unfair constructive dismissal for making a protected disclosure". The thrust of that complaint appears from the following paragraphs in section 11 of his application form IT1:
"11.1. I was unfairly constructively dismissed on 9 November 2001 as a consequence of making a Protected Disclosure as defined in the Public Interest Disclosure Act 1998. Subsequent to making the Disclosure, my employer variously acted and failed to act, with the consequent effect that I suffered varying degrees of detriment short of dismissal. Ultimately, after my employer asked me to elaborate on the details of the Disclosure, my employer told me that because of my opinion of the character of the employee primarily implicated in the Disclosure, my continued employment would be intolerable, with the implication that termination of my employment was inevitable. Shortly afterwards, I was suspended pending an investigation of a spurious allegation of gross misconduct.
11.2. The Protected Disclosure primarily alleged that Mr Leslie Graham, the General Manager of Magna Kansei Limited, had caused me bodily harm, and that my employer had not adequately performed its duty of care under the Health and Safety at Work Act 1974.
11.3. One aspect and consequence of my employer's activity subsequent to my making the disclosure was a breakdown of the trust that underpinned the contract of employment. While the severity of some individual incidents was relatively low, the overall pattern of incidents demonstrated a consistent, deliberate and effective endeavour by my employer to deny me various rights, and an apparent disregard for Health and Safety responsibilities."
There is then set out, under section 11, a brief history of the events said to amount to what was described as "bullying" on behalf of the employer. Those events led to a meeting at the end of October 2001; following which Mr Melia proposed terms for the termination of his employment. Those terms were rejected by the employer, who made a counter-offer which it subsequently withdrew. The counter-offer was withdrawn on the evening of 8 November 2001, and Mr Melia was then informed that he was suspended pending an investigation into an allegation of gross misconduct. His reaction to that is described at paragraphs 11.13 and 11.14 of his complaint:
"11.13 … It confirmed that my employer is not capable of, nor willing to perform my contract of employment, nor its legal duties under various statutory instruments including the Health and Safety at Work Act and Public Interest Disclosure Act.
11.14. On the morning of 9 November 2001, I accepted all of my employer's repudiatory breaches of my employment contract, and terminated the contract with immediate effect."
As I have said, Mr Melia's complaint was that he terminated his employment without notice in circumstances which amounted to constructive dismissal. That followed—and, as he alleged, was consequent upon—complaints which he had made about working practices at his place of work. In short, he alleged that he was forced to resign because he was a "whistleblower".
In 1998, Parliament enacted legislation for the protection of whistleblowers. That legislation is contained in the Public Interest Disclosure Act 1998. The long title to the Act sets out the statutory object. The Act is an Act "to protect individuals who make certain disclosures of information in the public interest, to allow such individuals to bring action in respect of victimisation, and for connected purposes".
The 1998 Act has the effect of introducing new provisions into the existing employment legislation contained in the Employment Rights Act 1996. Part IVA of the 1996 Act (Protected Disclosures) is introduced by section 1 of the 1998 Act. It contains provisions, at sections 43A to 43L, which explain and define what is meant by "Protected Disclosure". Section 2 of the 1998 Act introduces a new provision, section 47B, into Part V of the 1996 Act. Section 47B confers on workers a right not to suffer detriment as a consequence of making a protected disclosure. The section as enacted in 1998 was in these terms:
"47B (1) 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.
(2) Except where the worker is an employee who is dismissed in circumstances in which, by virtue of section 197, Part X does not apply to the dismissal, this section does not apply where—
(a) the worker is an employee, and
(b) the detriment in question amounts to dismissal (within the meaning of that Part).
(3) For the purposes of this section, and of sections 48 and 49 so far as relating to this section, 'worker', 'worker's contract', 'employment' and 'employer' have the extended meaning given by section 43K."
Section 47B, as enacted, was amended in minor respects by the Employment Relations Act 1999 (as from 25 October 1999), so that in its present form the introductory words in sub-section (2) no longer appear; but nothing turns on that.
It will be apparent from section 47B(3), read with section 43K, that "worker" has a more extensive meaning than "employee" in the employment rights legislation. It will also be apparent that the right conferred by section 47B(1) is limited by section 47(B)(2): the section does not apply where the worker is an employee and the detriment of which he complains "amounts to dismissal" within the meaning of Part X of the 1996 Act.
Part X of the 1996 Act makes provision for unfair dismissal. Section 94 confers on an employee the right not to be unfairly dismissed by his employer. Section 95 sets out the circumstances in which, for the purposes of Part X, an employee is unfairly dismissed by his employer. In the present context, section 95(1)(c) is in point:
"(1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2) and section 96, only if) …
(c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct."
It is that provision which brings within the scope of Part X termination of employment in circumstances amounting to constructive dismissal.
Section 95(1)(c) must be read with section 97(1) of the Act, which defines the effective date of termination. In a case falling within section 95(1)(c), the relevant provision is that in section 97(1)(b):
"(1) Subject to the following provisions of this section, in this Part "the effective date of termination"—
(b) in relation to an employee whose contract of employment is terminated without notice, means the date on which the termination takes effect."
Section 97 of the Act is followed by a group of sections—sections 98 to 107—under the generic cross-heading, "Fairness". Those sections prescribe circumstances in which an employee who is dismissed is to be regarded for the purposes of Part X as unfairly dismissed.
A further element of the protection afforded to whistleblowers by the 1998 Act was the addition of a new category to the categories in which an employee was to be regarded as unfairly dismissed. This addition was enacted by section 5 of the 1998 Act, which introduced a new section—section 103A—into the group of sections in the 1996 Act to which have I have just referred. Section 103A of the 1996 Act is in these terms:
"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...
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