Bascetta & Anor v Abbey National Plc

Permission to appeal should be granted only where the proposed appeal has a real prospect of success and raises a question of law. An appellate court cannot revisit factual findings merely because different findings might have been made. An Employment Tribunal must give sufficient reasons to explain its decision, but need not address every item of evidence, document or submission. Firm case management, questioning and provisional views do not, without more, establish apparent bias. A perversity challenge requires an overwhelming case that the decision was irrational and wrong. Fresh evidence will not be admitted merely to reopen factual issues in an appeal confined to legal questions.

The appellants brought claims for ordinary and automatically unfair dismissal after redundancies at Abbey National. Miss Bascetta also alleged a protected disclosure and complaints concerning the Employment Tribunal hearing. The Leeds Employment Tribunal found that the dismissals were genuine redundancy dismissals and fair, and rejected the protected disclosure claim. The Employment Appeal Tribunal, in UKEAT/0603/07/LA, dismissed the appeals and refused a review.

The appellants sought permission to appeal against the EAT’s orders, alleging apparent bias, inadequate reasons and perversity. They also sought to rely on further evidence concerning the hearing and the factual findings. The central issues were whether there was an arguable error of law and whether permission should be granted.

1. Permission refused. The linked applications concerned permission to appeal from the EAT’s dismissal of the appellants’ challenges to the Leeds Employment Tribunal decision and its refusal to review that decision.
2. Question of law. Permission to appeal could be granted only if the proposed appeals had a real prospect of success. An appeal from an Employment Tribunal was confined to a question of law, and the Court of Appeal had no jurisdiction to revisit factual findings unless a legal error was identified.
3. Apparent bias. The test was whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased, applying Porter v Magill [2002] UKHL 67; [2002] 2 AC 357 at paragraph 103. A judge must not close, or appear to close, the mind before hearing the evidence and argument. But provisional views, questioning and firm management of the hearing did not by themselves show a closed mind or apparent bias. The allegations were subjective and lacked sufficient independent corroboration.
4. Adequacy of reasons. An Employment Tribunal must give reasons for its decision, but need not deal with every piece of evidence, document or point taken. The complaint that written reasons had not been provided under section 92 of the Employment Rights Act 1996 did not disclose an arguable error of law, since the Tribunal had found that reasons had been given, namely redundancy.
5. Perversity and fresh evidence. A perversity challenge required an overwhelming case that the Employment Tribunal’s decision was irrational and wrong. The proposed further evidence was directed to factual disputes and was irrelevant to an appeal confined to questions of law. The possibility that another tribunal or this court might have made different findings did not establish perversity.
6. Costs. The respondents’ costs were summarily assessed at £15,000, after a substantial reduction from the sum claimed, and were ordered to be paid by the appellants.

• Court of Appeal (Civil Division) — The linked applications for permission to appeal were refused. The court declined to reopen the Employment Tribunal’s factual findings and summarily assessed costs at £15,000.
• Employment Appeal Tribunal — Appeals from the Leeds Employment Tribunal were dismissed, and an application for review was refused. The proceedings were identified as UKEAT/0603/07/LA.
• Leeds Employment Tribunal — The Tribunal held that the redundancies were genuine and the dismissals fair, and dismissed Miss Bascetta’s protected disclosure claim.