Bascetta & Anor v Abbey National Plc

On a renewed application for permission to appeal, allegations of bias in an employment tribunal should not be rejected summarily merely because such allegations are frequently made by unsuccessful litigants. Where the allegations may raise an arguable point and appear not to have received fully reasoned consideration below, the application warrants fuller consideration. At the permission stage, the court need not decide whether the proposed grounds will succeed. If it cannot conclude that they have no properly arguable basis, the application may be adjourned to a full court.

Two former employees of Abbey National Plc brought claims for compensation for unfair dismissal. Miss Bascetta also alleged harassment and victimisation connected with asserted whistle-blowing. The Employment Tribunal dismissed both claims on 2 November 2006 and refused a review on 2 May 2007.

The Employment Appeal Tribunal rejected the appellants’ grounds at a preliminary hearing, dismissed the appeal on 29 April 2008, refused a review on 23 May 2008, and refused permission to appeal. Hooper LJ subsequently refused permission on paper. The appellants renewed their applications before Rimer LJ, alleging, among other matters, tribunal bias, improper exclusion of evidence, inadequate reasons and unsupported findings. The central issue was whether the proposed appeals raised properly arguable grounds requiring permission and a full hearing.

Disposition. The renewed applications for permission to appeal were adjourned to a full court, with any appeals to follow immediately if permission were granted. Rimer LJ did not determine the merits or grant permission at this stage.

1. The appellants’ complaints included allegations that the Employment Tribunal chairman displayed manifest bias, wrongly assisted Abbey’s case, excluded relevant evidence and made findings unsupported by the evidence. They also challenged the Employment Appeal Tribunal’s treatment of those complaints.
2. The fact that losing litigants frequently make allegations of bias does not justify a uniform or instinctive rejection of them. Each allegation must be considered on its substance. In this case, the bias allegations appeared not to have received fully reasoned consideration in the Employment Appeal Tribunal’s generalised dismissal of the appeal.
3. Rimer LJ was therefore not prepared to conclude summarily that the proposed appeals had no properly arguable grounds. He considered that the allegations of bias might merit proper consideration, although he indicated that the appellants might ultimately find the case too difficult to establish and that the bias point was probably their strongest ground.
4. The complaint concerning Meek compliance was not resolved. The judge found the argument difficult to understand because the Employment Tribunal’s reasons appeared to show that it had heard evidence from the relevant witness. The point that an earlier Employment Appeal Tribunal judge’s comments bound the later panel was also viewed provisionally as lacking force, since the panel considered the matters afresh.
5. The application was adjourned to a full court. The proposed hearing was estimated to require one day, with a constitution capable of including a High Court judge and preferably a Lord Justice with employment law experience.

1. Court of Appeal (Civil Division): Hooper LJ refused permission to appeal on paper on 9 September 2008. Rimer LJ adjourned the renewed applications to a full court, with any appeals to follow if permission were granted.
2. Employment Appeal Tribunal: After earlier paper-sift and oral stages, the appeal was dismissed at a preliminary hearing on 20 February 2008, with reasons given on 29 April 2008. A review was refused on 23 May 2008, and permission to appeal was refused.
3. Employment Tribunal: The claims were dismissed on 2 November 2006. An application for review based on new evidence was dismissed on 2 May 2007.