Trying to re-argue the facts at appeal on the grounds of bias or perversity is no easy task

Clarke v Zurich UK General Services Ltd [2010] EWCA Civ 1333

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Mrs Clarke a typist became ill with chronic wrist pain relating to tenosynovitis and osteoarthritis in the wrist. She came under the protection of the 1995 Disability Discrimination Act (Now replaced by the Equality Act 2010) and received company benefits for 10 years until the company, believing that she was exaggerating her conditions and failing to cooperate with a medical investigation dismissed her summarily for gross misconduct.

Employment tribunal claims were brought against the former employer, Zurich UK General Services Ltd for race discrimination, disability discrimination, victimisation, unfair dismissal and breach of contract. The ET dismissed all her claims and ordered her to pay all Zurich's costs.

• An employment tribunal's loss of material (tapes and judge's notes) does not necessarily provide a ground of appeal against its decision.
• The levelling of undeveloped criticism of a decision is not enough to justify the giving of permission to appeal'
• Simply describing someone as 'black' does not necessarily amount to evidence of discrimination.
• The Court of Appeal stressed that no precedents were set by this judgement.
• Lodwick v. London Borough of Southwark considered

The EAT found that the dismissal for misconduct came within the range of reasonable responses and upheld the ET's decision.

Under rules 3(7) and 3(8) of the Employment Appeal Tribunal Rules 1993 the Claimant failed the sift before Judges Peter Clark and McMullen. She then had an oral hearing under rule 3(10) before Judge Serota who dismissed all grounds of appeal save that relating to the tribunal's costs order. This went to a full hearing but failed.

The claimant then tried to appeal to the Court of appeal on the grounds of, 'Practice and Procedure: Actual Bias, perverse, Misconduct and procedural irregularity, regarding Unfair Dismissal, Race Discrimination, Disability Related Discrimination, Victimisation Discrimination and Breach of contract, Disability Discrimination, Human Rights Act.'

The basis of the appeal was in effect (although the appeal was against the EAT rather than ET decision) that Employment Judge Gaskell, 'misdirected herself in various respects; failed to consider matters she should have considered; took into account matters that she should not have considered; misdirected herself in relation to the costs application; displayed actual bias; and arrived at a perverse decision.'

The Claimant appealed to the Court of Appeal which on the sift refused a hearing on the basis that no reasonably arguable point of law was identified in the grounds of appeal or in the skeleton argument, no evidence having been brought for the accusations of bias and perversity and that 'the multiple grounds were directed to achieving on appeal different findings of fact on the evidence that was before the ET.'

The Court of Appeal further noted that, 'the levelling of undeveloped criticism of a decision is not enough to justify the giving of permission to appeal' and that it would,'only give permission to appeal on specific grounds that it is satisfied raise a properly arguable point with a real prospect of success. It is no good, for example, simply asserting that the employment judge was biased. If that sort of allegation is to get anywhere, it is necessary to identify the facts that are said to underlie it. Nor, for another example, is it sufficient to assert that the employment judge wrongly admitted evidence about a particular matter (in this case, that includes evidence relating to events concerning a private investigator), without making an arguable case as to why such evidence was wrongly admitted and what, if any, effect it had on the overall decision'.

The Court of Appeal decided that an employment tribunal's loss of material (tapes and judge's notes) does not necessarily provide a ground of appeal against its decision. It upheld the EAT findings that the claimant was not as disabled as she claimed or incapable of working and that there was no failure to make appropriate adjustments. There was no breach of contract.

The Court of Appeal noted that there had been a near, "total lack of co-operation on Mrs Clarke's part" and refused leave to continue to a hearing on any of the grounds she raised.