England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL

		Royal Courts of Justice Strand, London, WC2A 2LL Wednesday 25th July, 2001

LORD JUSTICE SEDLEY:

1. Ms Colback came before me in person on 19 June 2001 to present her application for permission to appeal. Her application for redress for unfair dismissal had been refused in April 2000 by an Employment Tribunal which had sat at Newcastle upon Tyne for 5 days in January 2000, followed by a day's deliberation in February. The Employment Appeal Tribunal had dismissed her appeal, under its without-notice procedure, as unarguable. Her case before me therefore had to be that she had a realistic prospect of establishing that the Employment Tribunal's decision could not stand.
2. Ms Colback was employed by Newcastle MIND as its training manager from 1991 (though the date was contested) to 1995, when the organisation was closed and all the staff were dismissed. The cause of this disaster was the financial delinquency of its direct, but the reason for the dismissals was the decision of the executive committee that the organisation was insolvent and could not continue to function. Ms Colback's claim was that her dismissal was unfair because no duly authorised decision to wind up the organisation had ever been taken; because there was no true insolvency, so that either the statutory ground of redundancy was not made out or – if the executive committee's decision was valid and final – the redundancy was contrived; and because there had not been proper consultation with staff representatives. She also contended that three named respondents who had been dismissed from the proceedings ought not to have been. An interlocutory appeal to the EAT in 1999 had established that the correct respondents, on behalf of Newcastle MIND, were the members of the executive committee at the date of dismissal.
3. The Employment Tribunal, after several days of hearing evidence and argument, concluded that the decision to dismiss the staff was not unconstitutional; that it was inevitable given the financial state of the organisation; that there had been adequate consultation; and that there had therefore been a fair dismissal for redundancy. Their other conslusions (for example that it was not for them to examine the reasonableness of the decision – a view for which the EAT's decision in Moon v. Homeworthy Furniture [1977] ICR 117 does not, to my mind, afford very convincing authority) do not matter in the light of those I have set out.
4. Ms Colback sought a review of the decision both on the grounds which she subsequently put before the EAT and because, at the conclusion of the hearings in January, she had seen the two lay members of the tribunal leaving by taxi with one of the respondents, Mrs Eccleston, whom in due course the tribunal held to have been misjoined. To this allegation of apparent bias shw adds a complaint that the language used by the Employment Tribunal at one point of their decision is itself biased against her.
5. In a very full notice of appeal to the EAT Ms Colback set out her case on all these issues. The great majority of them were, however, issues of fact on which the Employment Tribunal had decided against her and are unappealable. Mr. Recorder Underhill QC dealt carefully with those which might have raised an issue of law. The identity of the proper respondents and the date when Ms Colback's employment began matter only if there is a viable case against Newcastle MIND. As to this, for the reasons given by the EAT there is no perversity in finding that consultation was adequate, however strongly Ms Colback disagrees with it. Once this point is reached, unfairness can only be established if there was no true redundancy.
6. It may be arguable that the constitutionality of the decision does matter – not (as in Warnes v. Cheriton Oddfellows Social Club [1993] IRLR 58) so as to enable an employer to escape the consequences of its own acts but because a decision taken without power is in law a nullity. Here, however, the employment of Ms Colback and her colleagues came both in fact and in law to an end when work and pay ceased to be provided under their contracts. The significance of a failure to decide constitutionally on closure may in some cases be to make it hard for the employing body to establish the true reason for dismissal, and possibly its fairness; but here, on the facts found by the Employment Tribunal, the reason was plain and inexorable: the organisation was heavily in debt and without prospective means of payment. I know that Ms Colback fundamentally disagrees with this; but it not this court's function to re-find facts.
7. The tribunal at one point of its findings spoke of the £3000 "which the applicant extracted from the respondents in July 1995". Ms Colback is understandably offended by this and by the chairman's refusal to withdraw it when she asked for a review. It refers to a payment for overtime work made to her in July 1995, and it may help if I say that for my part I cannot see in the tribunal's findings any ground for considering that it was otherwise than properly made. But the use of the word "extracted", though hurtful, cannot furnish a ground of appeal.
8. The real issue, and the one which has given me most pause, arises from these facts: the two lay tribunal members needed to get to the railways station after the hearing, but the taxi which they thought they had flagged down had been booked by Mrs Eccleston; she offered to share it with them, and they accepted, sharing the fare; the little conversation there was did not touch on anything to do with the case. Ms Colback accepts that the court will approach the question of ostensible bias on the basis of these facts as they have since emerged, even though at the time she could not have known them all (see In re Medicaments (No 2) Times, 2 February 2001). Even so, she submits, an observer seeing and knowing them all would still conclude that the two lay members had accepted a personal favour from a party to the proceedings, creating a real risk that they would be inclined thereafter in her favour.
9. Neither the chairman, on the review application, nor the EAT nor I have heard the other side of the argument, but I am bound to say for the present both that I agree with the EAT that accepting the lift was unwise, and that I disagree with the chairman's view that "the danger of bias to which Ms Colback refers is fanciful and transitory and if accepted would lead to situations where it would be impossible for the members of a tribunal to share a lift or be in the same physical vicinity as a party without an aggrieved party being in a position to challenge the decision." Being in the same vicinity or sharing a lift (an elevator, I assume) is entirely different from what happened here, for reasons which are self-evident. Indeed the chairman goes on to record the two members' acceptance that "with hindsight it would have been preferable to resist the temptation to share a taxi with Mrs Eccleston".
10. The dismissive response to Ms Colback's understandable complaint makes it more difficult than it should be to deal with the chairman's characterisation of the allegation of a danger of bias as "fanciful and transitory". In its context it is, I have to agree, not acceptable. But if I take a fresh look and ask myself whether, as a bystander, I would have concluded that the acceptance of this favour in the circumstances I have recounted created a real risk that the two lay members would in consequence look more favourably than they would otherwise have done upon Mrs Eccleston's case, the answer is no. The question would certainly cross my mind, as it crossed Ms Colback's; but there is no realistic prospect, in my judgment, that a full division of this court, putting itself in the position of an objective observer, would answer on reflection that there was a real risk or danger of bias arising from the members' acceptance of this lift, unwise though it may have been.
11. For these reasons permission to appeal is refused.

ORDER: Application for permission to appeal refused.PRIVATE 

(Order not part of approved judgment)

____________________