Holton v Bupa Care Homes (CFH Care) Ltd

On a second appeal from the Employment Appeal Tribunal, permission requires an identifiable error of law, not merely disagreement with adverse factual findings. A case-management refusal of an adjournment will not justify permission where it was based on sound material and adequately reasoned. Serious underlying allegations, public-interest concerns and personal circumstances do not remove the need to show legal error. Where the Employment Appeal Tribunal gave ample reasons and no error of law is identified, permission must be refused.

The applicant worked as a care assistant and raised alleged protected disclosures concerning care provided to vulnerable residents. After resigning, she brought claims in the Employment Tribunal for constructive unfair dismissal and detriments on the grounds of protected disclosures and whistleblowing.

Employment Judge McClaren dismissed the claims on 12 March 2014. Her Honour Judge Eady QC dismissed the applicant’s appeal in the Employment Appeal Tribunal by an order dated 14 May 2014. The applicant, appearing in person, sought permission for a second appeal to the Court of Appeal. She relied on alleged errors of law, factual findings, procedural irregularities, human-rights concerns and the refusal of an adjournment.

The central issue was whether she had identified an arguable error of law in the Employment Appeal Tribunal’s decision.

Lady Justice Hallett refused permission to appeal.

1. Second appeal threshold. Permission could be granted only if the applicant identified a respect in which the Employment Appeal Tribunal had gone wrong in law. A second appeal presented a high hurdle. The Court of Appeal could not grant permission merely because the applicant disagreed with findings or considered the result unfair.
2. Adjournment. The refusal of an adjournment was a case-management decision. It was based on sound material and supported by adequate reasons. The Employment Appeal Tribunal was accustomed to assisting litigants in person and to ensuring that complex legal matters were properly presented. The applicant’s decision to leave the hearing did not establish an error of law.
3. Substantive complaints. The Employment Appeal Tribunal gave ample and good reasons for its conclusions. The applicant’s complaints were, in substance, attempts to challenge findings made against her because they were adverse to her. They did not disclose errors of law.
4. Other matters. The public importance of the underlying disclosures, their relevance to vulnerable patients, the applicant’s mental-health difficulties and alleged administrative or data-protection problems could not substitute for an arguable legal error in the decision under challenge.

There was no basis for granting leave to appeal.

1. Court of Appeal (Civil Division): By [2015] EWCA Civ 825, Lady Justice Hallett refused permission for a second appeal.
2. Employment Appeal Tribunal: Her Honour Judge Eady QC dismissed the applicant’s appeal by order dated 14 May 2014.
3. Employment Tribunal: Employment Judge McClaren dismissed the claims for constructive unfair dismissal and detriments arising from protected disclosures and whistleblowing on 12 March 2014.