Bascetta & Anor v Abbey National Plc

The Court of Appeal refused permission to appeal against Employment Tribunal findings that the dismissals of long-serving employees were fair redundancy dismissals. The court applied established standards for reviewing tribunal decisions: challenges to findings of fact and to the weight given to evidence cannot be re-litigated on appeal unless a legal error is shown; a perversity challenge must show that the tribunal's decision was irrational; and allegations of apparent bias must satisfy the Porter v. Magill test that a fair-minded and informed observer would conclude there was a real possibility of bias. The court rejected grounds based on alleged bias, inadequate reasons and perversity as having no real prospect of success, and declined to admit most proposed fresh evidence as it was either late or irrelevant to questions of law. The court also made a summary costs order against the appellants in a reduced amount.

Background and parties: Miss A Bascetta and Mr A Severn were long-serving employees of Abbey National who were made redundant as part of a restructuring following acquisition by Banco Santander. They brought Employment Tribunal claims for ordinary and automatically unfair dismissal, and Miss Bascetta brought a protected disclosure complaint. The Leeds Employment Tribunal heard the cases over six days and dismissed the claims on 2 November 2006, finding the dismissals to be genuine redundancies.

Procedural history: The appellants appealed to the Employment Appeal Tribunal, where various applications under rule 3(7) were dismissed. Preliminary hearings and applications for review were refused. The appellants applied for permission to appeal to the Court of Appeal against the EAT orders of 20 February 2008 and 22 May 2008; earlier refusals of permission were made by Hooper LJ and others, and the applications were renewed to the full court.

Nature of the application and relief sought: The applications sought permission to appeal the EAT decisions, and sought to admit fresh evidence and to re-open findings of fact. Central complaints were that the Employment Judge was biased, that the ET’s reasons were inadequate or fabricated, and that the ET’s decision was perverse. Miss Bascetta also complained about the absence of written reasons for dismissal under section 92 of the Employment Rights Act 1996 and about alleged breaches of the Dispute Resolution Regulations 2004.

Issues framed by the court:

• Whether there was a real prospect of showing apparent bias by the Employment Judge under the Porter v. Magill test;
• Whether the ET’s reasons were legally inadequate so as to give rise to an arguable error of law;
• Whether the ET’s findings were so perverse as to be irrational and therefore reviewable as a question of law;
• Whether proposed fresh evidence should be admitted at appellate stage.

Court’s reasoning and conclusions: The court observed that expressions of provisional views or robust case management by a judge are not of themselves evidence of bias. The appellants’ allegations were unsupported by independent corroboration (notably absent were supporting statements from the appellants’ own counsel or solicitor) and therefore did not satisfy the Porter v. Magill test. On reasons, the court held that a tribunal need not deal with every item of evidence or every document and that the applicants’ general criticisms amounted to an attempt to re-open findings of fact rather than to identify an error of law. On perversity, the court reiterated the high threshold required and concluded the appellants had not shown an overwhelming irrationality; their case was an attempt to re-litigate findings of fact. Proposed fresh affidavits were either late, irrelevant to questions of law, or both, and were not admitted except in part. Finally, the court made a summary assessment of Abbey National’s appellate costs at £15,000 to be paid by the appellants.

Procedural note: The court emphasised that permission to appeal requires a real prospect of success and that this court cannot re-hear factual disputes decided by a tribunal unless a legal error is shown.

Applications for permission to appeal were refused. The court held that the appellants had no real prospect of success on the grounds of apparent bias, inadequacy of reasons or perversity, that most proposed fresh evidence was either late or irrelevant to questions of law, and that the court should not re-open findings of fact reached by the Employment Tribunal. A summary costs order of £15,000 was made against the appellants.

The Employment Tribunal (Leeds) heard the claims over six days and dismissed them on 2 November 2006. The Employment Appeal Tribunal dismissed initial appeals and applications under rule 3(7) (Elias P 27 June 2007 and HHJ Ansell on fresh grounds). HHJ Birtles permitted an inter partes preliminary hearing (13 December 2007). HHJ Peter Clark dealt with a preliminary hearing and dismissed the appeal (20 February 2008) and later refused review. Permission to appeal to the Court of Appeal was previously refused by Hooper LJ (27 April 2009); the applications were adjourned to the full court and heard on 9 December 2009, which refused permission and made a costs order.