Colback v Ena Ferguson & Ors

An appellate court considering permission to appeal must assess whether there is a realistic prospect that the decision below cannot stand. Findings of fact are not ordinarily re-opened on such an application. A decision to close an organisation may be constitutionally defective without preventing the employment from ending where work and pay cease, particularly when the tribunal has found that financial circumstances made dismissal inevitable. Apparent bias is assessed objectively, by asking whether the circumstances create a real risk of bias. Sharing transport with a party may be unwise, but does not necessarily establish such a risk.

The appellant challenged an Employment Tribunal decision finding that her dismissal, following the closure of Newcastle MIND, was fair redundancy. The Employment Appeal Tribunal dismissed her appeal without notice as unarguable. She alleged that the closure decision was unauthorised, that there was no genuine redundancy, that consultation was inadequate, and that the tribunal was apparently biased after two lay members shared a taxi with a respondent.

The application for permission to appeal required consideration of whether any of those grounds had a realistic prospect of showing that the Employment Tribunal’s decision could not stand.

1. Permission to appeal refused. The appellant’s challenges to the tribunal’s factual findings were not properly arguable as appeals on questions of law. The Employment Appeal Tribunal had been entitled to conclude that consultation was adequate, and there was no perversity in that conclusion.
2. The constitutional validity of the decision to close the organisation might matter where an unauthorised decision was legally a nullity. However, the employment had ended in fact and in law when work and pay ceased. On the tribunal’s findings, the reason for dismissal was plain and inevitable: the organisation was heavily indebted and had no prospective means of payment. The possible constitutional defect therefore did not create a realistic prospect of establishing unfair dismissal.
3. The tribunal’s description of an overtime payment as money the applicant had “extracted” from the respondents was regrettable and understandably offensive. It did not, however, provide a ground of appeal, and the findings disclosed no basis for treating the payment as improper.
4. Apparent bias had to be assessed on the facts as they had subsequently emerged, applying the objective approach in In re Medicaments (No 2), Times, 2 February 2001. The lay members’ acceptance of a lift from a respondent was unwise, and the tribunal chairman had been wrong to dismiss the concern as fanciful and transitory. Nevertheless, an objective observer would not conclude that the circumstances created a real risk or danger that the members would favour the respondent. The possibility of sharing a lift or being in the same vicinity as a party was materially different from accepting the taxi journey in question, but the latter still fell short of the required threshold.

• Employment Tribunal: After a five-day hearing, the tribunal found that the closure decision was not unconstitutional, redundancy was inevitable, consultation was adequate, and the dismissal was fair.
• Employment Appeal Tribunal: The appellant’s appeal was dismissed under the without-notice procedure as unarguable.
• Court of Appeal (Civil Division): Permission to appeal was refused.