England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

		Royal Courts of Justice Strand London WC2 Thursday, 22nd November 2001

1. LORD JUSTICE MUMMERY: On 10th July 2001 I heard a number of applications for permission to appeal. The fourth in the list was an application by ALM (Medical Services) Limited for permission to appeal and for an extension of time for appealing in the case between them and Mr. Bladon. At the hearing Dr. Matta appeared to make submissions on behalf of ALM (Medical Services) Limited in his capacity as managing director of that company which runs a number of nursing homes, in one of which Mr. Bladon had been employed as a charge nurse between June and September 1999 when he was dismissed, leading him to make an application to the Employment Tribunal on 20th September 1999 for unfair dismissal. At that hearing Dr. Matta addressed me. He also had some help. According to my notebook, I granted permission to appeal and extended the time for appealing. When there was mentioned an application to adduce new evidence on the appeal and to seek an order for production of the chairman's notes, I noted that, if these applications were pursued, they must be by way of an application on notice to the other side.
2. Unfortunately, but understandably, having regard to the circumstances in which the application was made, the order entered on 16th July 2001 does not correctly record the order which I intended to make. The order is in these terms.

"(1) Permission to appeal be granted on grounds one and two of the Appellant's notice sealed on the 6th June 2001

(2) Permission to appeal on ground three and the appellant's proposed application, to be set down pro forma, for an order for production of the Chairman of the Tribunal's notes are adjourned to a further hearing to be listed on notice to the respondent."

3. The grounds of appeal are three in number, as indicated by that order. The first was that they had not been given a full or fair hearing, in that the Tribunal had refused to allow crucial witnesses to be called. The second was that the Chairman of the Tribunal did not conduct the hearing in a fair and balanced way and gave an impression of bias against the respondent company, and, thirdly, that the Chairman misdirected himself on the law relating to unfair dismissal and the Public Interest Disclosure Act 1993.
4. I think that the source of confusion in the drafting of the order had arisen from what I said in my judgment in granting permission to appeal. I must take responsibility for any confusion that may have arisen. I had said that the grounds of appeal concerning the interpretation and application of the Unfair Dismissal provisions and the Public Interest Disclosure provisions were grounds that gave a sufficient reason for granting permission. I went on to say, however, that there was no real prospect of the appeal succeeding in relation to the complaints about the conduct of the Chairman of the Tribunal. I did not go on, as I should have done, to spell out precisely for what I was granting permission. What I was doing, and the order should be amended accordingly under the slip rule, was this. I was granting permission to appeal on all grounds, expressing particularly that the question of interpretation of the relevant statutory provisions, including the Public Interest Disclosure provisions, justified the grant of appeal, while also expressing a pessimistic view about the prospects of an appeal succeeding insofar as it related to criticisms of the way the hearing was conducted. Unfortunately, for the reasons I have mentioned, the order does not correctly reflect my intention. I have now explained to Dr. Matta and to Miss Morris, who appears for Mr. Bladon, what the legal position is. Following submissions and discussion with them, I have decided that the way to proceed with the appeal, so far as it relates to criticisms of the way in which the Chairman conducted the hearing, is to direct that the Chairman should provide to the court and to the parties his comments on the allegations which are made about his conduct in two documents; first, in an affidavit which has been sworn by Dr. Matta. It was sworn in relation to an application for a review by the Appeal Tribunal and for permission to appeal to the court. It is dated 2nd April 2001. There is also a further document from Mr. Colin Sinclair. It is an affidavit sworn on 9th July 2001. The Chairman is to give his comments on the allegations in these two affidavits, refreshing his memory, so far as it is necessary, by reference to his notes and quoting, so far as he considers necessary to support his comments, from the notes which he made. I would also ask him to comment expressly on a point which has been raised by Dr. Matta today. He informs me that he has received information, which he describes as hearsay information, that the Chairman of the Tribunal was, before appointment to that position, a solicitor in practice for the firm that acted for UNISON. UNISON is the union which is named in the IT1 of Mr. Bladon as his representative in the Employment Tribunal proceedings. Dr Matta says that he had not raised this matter at an earlier stage because this has only recently come to his attention. I think it is important that, insofar as the Chairman is being accused of bias or an appearance of bias, that this matter is dealt with by him in the comments which I have asked him to provide, which relate to the grounds of appeal which I have mentioned. I would ask that, if possible, these comments are to be provided within one month.
5. I do not think it is necessary for me to direct that the Chairman produce for this court a transcript of all the notes which were taken by him for the purposes of the hearing in the Employment Tribunal. Having regard to the nature of the allegations which are made, I am doubtful whether a transcription of the notes would themselves throw any significant light on whether the allegations now made are borne out. I should mention, for the sake of completeness, as pointed out to me by Dr Matta, that the question of the Chairman's notes had been raised at the Appeal Tribunal. An express order had been made by Judge Collins on 19th January 2001 directing that the Chairman's notes of evidence were not deemed necessary to the hearing of that appeal. It does not appear to me, however, that the Appeal Tribunal were given the same information as has been put before this court by Dr. Matta and Mr. Sinclair in the affidavits of 2nd April and 9th July 2001. In those circumstances, the position is that there is permission to appeal on all the grounds of appeal, and I direct that the Chairman's comments on the documents which I have already mentioned, and on the allegation which I have specified, should be provided to the court within a month from today.
Orders: Orders as per judgment; costs to be costs in the appeal.