Bascetta & Anor v Abbey National Plc [2009] EWCA Civ 840

Case No A2/2008/1064 & 2372[2009] EWCA Civ 840
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Monday, 6 th July 2009
Before
LORD JUSTICE RIMER
Between
MISS ANGELA BASCETTAAppellantsMR ANTHONY SEVERNAppellantABBEY NATIONAL PLCRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
THE APPELLANTS APPEARED IN PERSON for in person for THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED
Judgment
[1]These are renewed applications for permission to appeal by the claimants in two separate Employment Tribunal claims, Miss Angelina Bascetta and Mr Anthony Severn. The respondent to their claims and proposed appeals is Abbey National Plc. Miss Bascetta was employed by Abbey from November 1978 until 16 March 2006, latterly as manager of its Remote Access Services team. Mr Severn was employed in the same team as a technical consultant. Following Banco Santander’s takeover of Abbey in November 2004, the claimants were dismissed. They claim they were never given written reasons for their dismissals that accurately reflected the true reasons and their claims to the tribunal were for compensation for unfair dismissal. Abbey claimed that the reasons for the dismissal were redundancy; Miss Bascetta also claimed to have been harassed and victimised because of what she said was an element of whistle-blowing by her.[2]The claims of both claimants were heard together over either six or seven days by the Employment Tribunal (Miss H A McWatt being the chairman) and were dismissed by a decision promulgated with reasons on 2 November 2006. The claimants were represented by Mr Quinn of counsel and Abbey by Miss Norman, its solicitor. An application for a review based on new evidence was dismissed by the Employment Tribunal on 2 May 2007. The applicants’ appeal to the Employment Appeal Tribunal was dealt with on the paper sift by Elias J (as he then was), the President, who concluded that the appeal had no prospect of success and directed under Rule 3(7) of the Appeal Tribunal’s Rules that no further action be taken on it.[3]Fresh grounds of appeal were then lodged under Rule 3(8). They were considered by His Honour Judge Ansell, who also rejected them as having no real prospect of success. The appellants then exercised their right to an oral hearing under Rule 3(10), which came before His Honour Judge Birtles on 13 December 2007, who permitted the grounds of appeal in the reformulated notice of appeal to proceed to a preliminary hearing to be attended by both parties. The purpose of that exercise was for the Appeal Tribunal to decide whether any of the grounds raised any arguable point of law that merited a hearing at a full appeal. That hearing took place before His Honour Judge Clark and members on 20 February 2008. By then Miss Bascetta was in person -- indeed I think she was also before Judge Birtles -- and Mr Beard of counsel represented Abbey.[4]The Appeal Tribunal dismissed the appeal for reasons to be given later, as they were on 29 April 2008, and they also refused permission to appeal to the Court of Appeal. The applicants sought a review of that decision which was refused on 23 May 2008 by Judge Clark and members. The appellant then issued appellants’ notices seeking permission to appeal to the Court of Appeal against both the dismissal of the appeal at the preliminary hearing and the refusal to review that decision. Hooper LJ refused the application on the papers on 9 September 2008 on the ground that “For the reasons given by the EAT these appeals have no real prospect of success”[5]The applicants now submit before me that all the adverse decisions that they have so far suffered were wrong and that they do have proper grounds for challenging the Employment Tribunal’s decision. The grounds of appeal cover ten paragraphs. Paragraphs 1-5 assert that the Chairman’s conduct of the claims at the Employment Tribunal displayed manifest bias against the claimants. Paragraph 6 is not entirely easy to follow but appears to be an assertion that the Chairman wrongly excluded the evidence of three witnesses and so prejudiced the claimants. Paragraph 7 is a generalised attack on the tribunal’s finding of fact, the assertion being that the reasons given were inexplicable and the findings made were substantially untrue and unsupported by evidence. Paragraph 8 makes the point that Judge Birtles is alleged to have said that the only reason why he did not allow the matter to proceed direct to a full hearing was because the grounds of appeal included an allegation of bias that was unsupported by affidavit evidence, and so he instead simply directed the matter to proceed to a contested preliminary hearing. Paragraph 9 asserts that the Appeal Tribunal’s ruling on the preliminary hearing was inconsistent with Judge Birtles’ view that there were grounds that should proceed to a full hearing, even though he was not prepared so to order. I should perhaps say that I suspect there is nothing in that particular point. I do not at the moment understand how anything that Judge Birtles said could have bound the Appeal Tribunal when they were considering the matters afresh at the preliminary hearing. Paragraph 9 lists 13 points directed at an attack on the soundness of the Employment Tribunal’s findings, which appear to be in the nature of a particularisation of the generalised complaints in paragraph 7. Paragraph 10 is advanced as a summary of why the Employment Tribunal’s decision was wrong. Paragraph 11 complains that the Appeal Tribunal refused to review its decision.[6]The complaints I have summarised have been explained in a full and carefully constructed skeleton argument prepared by Miss Bascetta, who has also been the spokesman before me on behalf of herself and Mr Severn. The first set of complaints about the Employment Tribunal’s decision is that it is said that the Chairman displayed manifest bias against both claimants. These allegations are supported by a witness statement made by Miss Bascetta on 27 December 2007 for the purposes of the appeal to the Appeal Tribunal, one made following the hearing before Judge Birtles. That statement, by reference to a further document that Miss Bascetta has prepared, outlines the basis on which it is said that the Chairman displayed obvious bias.[7]The lay members, or at least one of them, responded to these allegations and I think that their responses were before the Appeal Tribunal, but the Chairman’s response was not before the Appeal Tribunal, it having only, as Miss Bascetta has explained to me, been produced later. Miss Bascetta asserts that at least Mr Preston, one of the lay members, said enough in his response to indicate that he recognised that in certain respects the Chairman lent assistance to Abbey by putting forward “impossiblescenarios to explain the contradictions” in its evidence, yet he declined to express a view on whether her conduct was appropriate. I do not propose to list the various matters complained of -- there are several -- but it is said by the applicants that the Chairman’s conduct would have led any reasonably informed bystander to consider that the Chairman was showing favour to one side unfairly against the other; and Miss Bascetta said in her skeleton argument that the conduct did not just display the possibility of bias, it showed real bias.[8]Next it is said in the skeleton argument that the tribunal wrongly excluded the evidence of Mr Radakovits, who apparently had a similar tribunal claim pending at Bedford; and it is said that Judge Birtles himself could see no reason for such exclusion. This evidence was said to be relevant to the protected disclosure issue, and the omission to admit it is said to have made the tribunal’s reasons for their adverse conclusion lack so-called Meek compliance (Meek v City of Birmingham District Council [1987] IRLR 2050). I confess I do not fully understand this argument, since paragraph 6 of the tribunal’s reasons appears to show that they did hear evidence from Mr Radakovits.[9]Next it is said that the tribunal’s reasons were, in short, a mass of factual omission and inaccuracy, including multiple factual findings unsupported by evidence. Miss Bascetta lists some sixteen matters that, it is said, the tribunal did not deal with which went to the heart of whether the dismissals were fair. One is the alleged omission to give either applicant a reason for their dismissal other than an explanation on 4 May 2005 that it was for redundancy, one which is said to have lost validity by 29 June 2005. Paragraph 25 of the skeleton argument identifies four particular findings for which, it is said, there was no evidence. Paragraphs 27 and 28 level serious accusations at the Chairman with regard to the manner in which he dealt with Abbey’s witness, Ms Garner. The assertion is that the Chairman tried to “cover up the fact that the witness had clearly perjured herself in her witness statement by inventing an imaginary role” for her. Paragraphs 29 and 30 level accusations of impropriety against the Chairman as to the manner in which she conducted the application for a review of the tribunal decision, one point being that she deliberately delayed it until after the outcome of the Radakovits case was known. Miss Bascetta says that apparently his case was disposed of on what she described as a “jurisdictional basis” without being heard on its merits.[10]The appellants complain also that Judge Clark, in giving his reasons for dismissing their appeal in the Appeal Tribunal, refused to address any suggestion of wrongdoing by the Chairman, not even referring to the evidence of alleged bias that Miss Bascetta had produced. Miss Bascetta makes what I would regard as a well-judged observation in her skeleton argument in saying:
“Whilst vexatious claims of bias will arise, there must be a balance to guard against the real danger of pre-judgment that anyone raising a claim of bias, especially an unrepresented litigant, is not to be believed and is nothing more than a sore loser and should be automatically dismissed.”
[11]Miss Bascetta is, in my own experience of appeals to the Appeal Tribunal, undoubtedly right that vexatious allegations of bias are frequently raised by losing litigants before employment tribunals. She is also right that there should be no knee-jerk reaction that all such allegations are of a like nature.[12]I have come to the conclusion that the applications before me cannot be summarily refused on the basis that the proposed appeals have no prospect of success. I have been provided with a vast mass of material, most of which I have had no opportunity to absorb; but, from what I have read, I consider that at least the allegations of bias may raise an argument that merits proper consideration, and, on the face of it, it is fair comment that those allegations do not appear to have received fully reasoned consideration in the somewhat generalised dismissal of the appellant’s appeals by the Appeal Tribunal. I would summarise my own response to the applicants’ wide-ranging heads of complaint as being that I suspect they are attempting to scale a mountain which may, on a close analysis of the matters in dispute, prove to be too high for them; but I am not prepared to conclude and decide here and now that they have no properly arguable grounds of appeal, although I suspect that the bias allegation may turn out to be their best point.[13]In the circumstances, as I have already explained to Miss Bascetta, what I propose to do is to adjourn the present applications for permission to the full court with the appeals to follow immediately afterwards if permission is then given. My estimate of the time required for the hearings of the application and of any appeal is one day. The court will of course have pre-read the essential material. The constitution of the court can include a High Court judge and should include a Lord Justice of Appeal with employment law experience.

Order

Application adjourned

Cited in 8 later judgments