Clarke v Zurich UK General Services Ltd

Permission to appeal from the Employment Appeal Tribunal should be granted only where the proposed ground identifies a specific, properly arguable error of law with a real prospect of success. It is not a route to re-argue factual findings. Findings supported by evidence, including findings challenged as perverse, cannot ordinarily be revisited on an appeal confined to questions of law. Allegations of bias, evidential error or procedural unfairness must identify the underlying facts, the legal error and, where relevant, the material effect on the outcome. Undeveloped criticism and newly produced material will not establish an arguable appeal without a demonstrated procedural or legal consequence.

Mrs Cherry Clarke brought claims against her former employer for race discrimination, disability discrimination, unfair dismissal and breach of contract. The Employment Tribunal dismissed the claims and ordered her to pay Zurich’s costs. The Employment Appeal Tribunal rejected the proposed appeals on the merits, but allowed one costs ground to proceed to a full hearing; that appeal was later dismissed.

Mrs Clarke applied to the Court of Appeal for permission to appeal the Employment Appeal Tribunal’s order. The central issue was whether her grounds disclosed any properly arguable error of law with a real prospect of success, rather than an attempt to challenge factual findings.

1. Application refused. Rimer LJ refused permission to appeal on every ground. The only decision formally under challenge was the Employment Appeal Tribunal’s order, although the proposed grounds were directed principally to alleged errors by the Employment Tribunal.
2. An appeal from the Employment Appeal Tribunal is confined to questions of law. The appellate court cannot retry facts where the Employment Tribunal had evidence on which it could base its findings. Perversity is an exceptional ground and requires more than disagreement with the tribunal’s assessment.
3. Allegations of bias, procedural irregularity or wrongful admission of evidence require a properly explained factual and legal foundation. It is insufficient simply to assert bias or identify evidence without showing why its admission was erroneous and what effect it had on the decision. The applicant was given a substantial oral opportunity to explain her grounds, but did not identify an arguable error with a real prospect of success.
4. The challenges to the findings on disability, co-operation, dismissal, breach of contract, missing evidence, race discrimination and victimisation all sought to re-argue the facts or relied on material that did not demonstrate procedural unfairness or legal error. The tribunal’s findings were supported by evidence and were conclusions it was entitled to reach.
5. The Employment Appeal Tribunal had permitted a challenge to the primary basis of the costs order. That challenge was heard and dismissed. The remaining criticisms of the costs order were not sufficiently identified or arguable. The decision in Lodwick v London Borough of Southwark, dated 18 March 2004, did not assist and did not establish any error in the tribunal’s approach to costs.

• Court of Appeal (Civil Division): Permission to appeal refused on all grounds.
• Employment Appeal Tribunal: On 23 March 2010, HHJ Serota QC dismissed the proposed appeals on the substance of the claims, but allowed one costs ground to proceed. The subsequent costs appeal was dismissed on 10 August 2010.
• Employment Tribunal: The claims were dismissed, and Zurich was awarded its costs.