Holton v Bupa Care Homes (CFH Care) Ltd

LADY JUSTICE HALLETT: This is an application for permission to appeal, made by Miss Holton in person, an order made by Her Honour Judge Eady QC on 14 May 2014 in the Employment Appeal Tribunal. Judge Eady's order dismissed Miss Holton's appeal against a decision of Employment Judge McClaren dated 12 March 2014.

Her Honour Judge Eady is criticised by Miss Holton for making a number of errors. In turn, the Employment Tribunal is also criticised. Before me this morning, Miss Holton has summarised her complaints about the judges under six main headings. Before addressing those headings, I shall provide a very brief summary of the background.

The Respondent provides residential nursing and dementia care to elderly people in hundreds of care homes across the United Kingdom and Miss Holton worked as a care assistant at one of those homes called Godden Lodge Nursing Home. She worked initially in the Cephas Unit and Nursing and Palliative Care Unit.

In February 2010, she raised nine issues of protected disclosure with an assistant manager, Miss Jones. The Applicant maintains, and indeed the Employment Tribunal found, that no action was taken in relation to eight of the issues. One issue was addressed to the extent that she was told to put it into writing. This was in respect of use of a hoist by a fellow member of staff. The Employment Tribunal found that the co-worker would have known that the Applicant had raised the issue with her employers.

Miss Holton complains that thereafter she was given the cold shoulder at work and a number of matters occurred to her detriment, including her being moved to a different unit that dealt with dementia patients. In 2011 she resigned from her position and made a claim before the Employment Tribunal for constructive unfair dismissal and detriments on the grounds of protected disclosures and whistle blowing.

Miss Holton has argued before me that she should be given permission to appeal to this court because there are matters of public interest to be determined and there is a compelling need for the Court of Appeal Civil Division to consider the judgment of Her Honour Judge Eady QC.

The public interest she says stems from the fact that at the heart of her disclosures was the care of elderly disabled and vulnerable patients and the compelling need for this matter to be heard on appeal stems from the prolonged effect on her mental health. She has now been diagnosed, she informs me, with paranoid psychosis and is on medication. She has also described the knock on effect of her now poor mental health on her family. Numerous agencies, it seems, have been involved with her and her family, including the police.

The first substantive ground of appeal she addressed in her oral submissions was the significance of corrections that had to be made to a preliminary hearing judgment. These, she submitted, were highly significant. They supported her case and essentially, she argued, established that the proposed Respondent's witnesses had lied.

Next, she submitted that both the Employment Tribunal and Her Honour Judge Eady had applied the wrong legal test and had committed a number of errors of law. Miss Holton took me through one or two of them in her oral submissions, but she set them out more fully in her written submissions. In essence she takes exception to the findings of fact made by the Tribunal. She has, therefore, a high hurdle to establish that the findings were beyond what any reasonable judge could find on the evidence before him/her and amount to errors of law.

Next, Miss Holton argues that there were breaches of her and the patients' human rights and that there have been a number of irregularities. Again, she emphasised that her disclosures were designed to reduce the risk to vulnerable people and to highlight poor care. She repeatedly submitted that the management of the home were aware of her disclosures at all relevant times and that the Employment Tribunal had been misled about when management became aware and had, therefore, come to the wrong conclusions.

She also put before me a number of what she says are administrative failings for which she says she has received apologies from, for example, Her Majesty's Courts and Tribunals Service. She has told me that the Parliamentary Ombudsman is involved in her case. She is concerned about breaches of the Data Protection Act and the fact that personal data relating to her or her family has gone missing or been disclosed. She has also complained about letters to her MP being lost by the Royal Mail.

She did not address in any great detail another ground, which was her application for a stay of execution, accepting that that is now no longer a relevant issue for this court.

Finally, she submitted that Judge Eady was wrong to proceed in her absence. Miss Holton attended the hearing before Her Honour Judge Eady with a friend, but when her application for an adjournment was refused she decided to leave.

Her Honour Judge Eady explained in a separate judgment her reasons for refusing the application for an adjournment. Miss Holton objects to the findings that the judge made, complaining that she had been making reasonable efforts to obtain legal representation and the judge was wrong to criticise the efforts that she had made. She further argued that she needed legal representation to argue or to put her case on complex matters of law.

I have considered those submissions with care and her written submissions in which she has set out why both the Employment Tribunal and the EAT were wrong in failing properly to identify the detriment to her, the breach of trust for which her employers were responsible, and the way that she has been victimised and treated unlawfully. The Tribunals were both criticised for overlooking important points in her favour and significant evidence that shows that her account of events was true.

I cannot in the time available go through all of Miss Holton's submissions. I hope that I have done them justice in what is a very brief summary. I can assure Miss Holton that I have before coming into court read the papers she has provided and understand the complaints that she makes.

As I attempted to explain to her at the beginning of this morning’s hearing, I can only operate according to the law and I cannot give permission to appeal unless she can identify for me some respect in which Her Honour Judge Eady has gone wrong in law. This would be a second appeal and therefore the Applicant has a high hurdle to jump before she can persuade me that she should be given permission.

Having done my best to analyse the complaints made by Miss Holton, my conclusions are as follows: first, Her Honour Judge Eady made a case management decision in refusing the application for an adjournment. She made it on the basis of the material before her, which was perfectly sound and she provided adequate reasons for her decision. Had Miss Holton stayed, she would have discovered, as Judge Eady had attempted to make clear to her, that the Employment Appeal Tribunal is well used to litigants in person and well used to assisting them through the process. It is also well used to ensuring that any complex matters of law are properly put before the court. Therefore, I reject Miss Holton's complaint about Judge Eady’s refusal to grant an adjournment.

As to the substance of Judge Eady's judgment, and Miss Holton’s other complaints, Judge Eady provided ample and good reasons for the findings she made and I can detect no way in which she has gone wrong in law.

I appreciate how much these proceedings mean to Miss Holton. I do understand the impact upon mental health when litigation is hanging over someone for as long as this litigation has now been hanging over her. However, her attempts to appeal the judgment of Her Honour Judge Eady in my view are simply attempts to appeal findings made against her on the basis that they are adverse to her. They are not errors of law. There is no basis for granting her leave to appeal.