ALM (Medical Services) Limited v Bladon

Permission to appeal may be granted where proposed grounds raise an arguable question concerning the interpretation and application of comparatively new statutory provisions, without implying that the appeal is likely to succeed. Complaints about the conduct of a first-instance hearing require separate consideration and may lack a real prospect of success even where other legal grounds justify permission. Applicants should also be warned that an unsuccessful Court of Appeal appeal will ordinarily attract liability for the respondent’s costs.

An employment tribunal found that Bryan Bladon had suffered a detriment and had been unfairly dismissed after making a protected disclosure. It awarded compensation for the detriment and unfair dismissal. ALM (Medical Services) Limited appealed to the Employment Appeal Tribunal, which found no arguable point of law concerning those findings but allowed the challenge to the injured-feelings award to proceed to a full hearing.

After an unsuccessful application for review by the EAT, ALM sought permission to appeal to the Court of Appeal. The proposed grounds included procedural unfairness and alleged misdirection concerning the Employment Rights Act 1996 and the Public Interest Disclosure Act 1998. The central issue was whether the grounds justified permission to appeal.

1. Permission granted. Lord Justice Mummery granted permission on the grounds concerning the interpretation and application of the unfair-dismissal and protected-disclosure provisions. Those grounds raised a sufficiently arguable point of law.
2. The grant was appropriate because the jurisdiction was comparatively new and, so far as the court was aware, no case under the relevant provisions had yet reached the Court of Appeal. The appeal therefore provided an appropriate opportunity to consider how the provisions should be interpreted and applied. The court expressed no view on the merits or likely success of the appeal.
3. The complaints that the employment tribunal had conducted the hearing unfairly, refused crucial witnesses or questions, and acted rudely or aggressively were not considered to have a real prospect of success. Those grounds did not independently justify permission.
4. The court warned that permission was no guarantee of success. If the appeal failed, the usual costs order in the Court of Appeal would require the unsuccessful party to bear its own costs and pay the respondent’s costs, unlike the ordinary position in the Employment Appeal Tribunal.

• Court of Appeal (Civil Division): permission to appeal granted on the statutory interpretation and application grounds; the procedural-conduct grounds were not considered to have a real prospect of success.
• Employment Appeal Tribunal: the EAT found no arguable point of law in the detriment and unfair-dismissal findings, but directed that the challenge to the injured-feelings award proceed to a full hearing. An application for review was subsequently refused on 8 June 2001.
• Employment Tribunal: found detriment for making a protected disclosure and unfair dismissal, and adjourned for determination of the remedy.