Paterson v Council of the City of Newcastle upon Tyne

In an application for permission to appeal from an Employment Appeal Tribunal decision, the Court of Appeal will not reopen factual findings or procedural conclusions absent an arguable error of law. A dismissal on medical capability may constitute dismissal for a potentially fair reason under the Employment Rights Act 1996. Where the employment tribunal has fairly assessed the employee’s medical condition, the employer’s enquiries and the procedure adopted, the Court of Appeal will not substitute its own view. Allegations of bias require a substantive evidential basis; an adverse procedural ruling does not, without more, establish apparent bias.

The applicant had been employed by the respondent council until his medical retirement in May 1998. He brought proceedings alleging unfair dismissal and breach of contract. The Employment Tribunal found that capability was the reason for dismissal, that the dismissal was fair and that there had been no breach of contract. The Employment Appeal Tribunal dismissed his appeal, applying London Fire and Civil Defence Authority v Betty [1994] IRLR 384. The applicant sought permission to appeal, alleging misadministration of the grievance procedure, unresolved breach of contract, and bias. The central issue was whether any arguable error of law justified intervention.

1. Application dismissed. There was no realistic prospect of the proposed appeal succeeding.
2. The Employment Tribunal had been entitled to treat the applicant’s capability as the reason for dismissal. Capability was a potentially fair reason under section 98(2)(a) of the Employment Rights Act 1996.
3. The Tribunal correctly focused on the fairness of the dismissal, including the applicant’s medical condition, the medical enquiries made, and the procedures adopted by the council. It was not required to investigate whether the council’s alleged conduct had caused the applicant’s illness.
4. The Employment Appeal Tribunal had correctly directed itself by reference to London Fire and Civil Defence Authority v Betty [1994] IRLR 384. No separate error of law arose from that approach.
5. The allegation that the grievance procedure had been wilfully misadministered challenged a finding of fact and disclosed no issue engaging section 37(1) of the Employment Tribunals Act 1996.
6. The breach of contract complaint could not succeed because the Employment Tribunal had found against the applicant on that issue. The proceedings concerned the fairness of an established dismissal.
7. The Employment Tribunal’s decision to permit an amendment to the respondent’s notice of appearance was a procedural ruling. Whatever its merits, it did not provide a basis for inferring bias. The other allegations of bias against the Employment Tribunal and Employment Appeal Tribunal also lacked substantive evidential support.

• Court of Appeal (Civil Division): application for permission to appeal dismissed.
• Employment Appeal Tribunal: dismissed the applicant’s appeal from the Employment Tribunal.
• Employment Tribunal, Newcastle-upon-Tyne: found that the dismissal was fair and that there had been no breach of contract.