England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand London, WC2 Monday, 25th November 2002

Monday, 25th November 2002

1. LORD JUSTICE PETER GIBSON: This is an application by Albion Hotel (Freshwater) Ltd ("Albion") for permission to appeal against the order, made on 22nd August 2002 by the EAT, dismissing Albion's appeal against the decision sent to the parties on 13th February 2002 of an Employment Tribunal Chairman, Mr I A Edwards, ordering a limited rehearing by the Tribunal to consider submissions on three authorities. Albion also seeks permission to appeal against an earlier order of the EAT on 15th November 2001.
2. The background to this application is this. Albion owns a hotel at Freshwater, Isle of Wight. Carlos and Linda Maia e Silva ("Mr and Mrs Silva") were employed as managers of the hotel from 20th April 1997 until they were dismissed on 10th February 1999. The reason given by Albion was that they were dismissed because of their poor management.
3. Mr and Mrs Silva on 7th April 1999 lodged originating applications with the Tribunal. Each made a large number of complaints. It is only relevant to refer to the fact that the complaints included automatically unfair dismissal due to breach of a statutory right and that their claim for compensation or damages included damages for sexual harassment. That was treated as a claim by Mrs Silva of unlawful sexual discrimination. That particular claim was dealt with separately and dismissed by a tribunal sitting in Southampton. That decision was sent to the parties on 14th October 1999.
4. However, a differently constituted tribunal, with Mr Edwards as Chairman, held a hearing, lasting three days, during which eight witnesses were called. Albion at that hearing was represented by its solicitor, Mr Burd. By a decision sent to the parties on 31st January 2000 it held that Mr and Mrs Silva were automatically unfairly dismissed, Albion having infringed their statutory right by an unlawful deduction of wages through the non-payment of bonuses contrary to section 104 of the Employment Rights Act 1996. The Extended Reasons of the Tribunal run to 17 closely typed pages and 116 paragraphs.
5. Albion appealed to the EAT, presided over by His Honour Judge Serota QC. By the time of the appeal hearing Albion had become insolvent and had ceased to trade, though I believe it has not yet been wound up.
6. The managing director, Mr Nolan, represented Albion before the EAT, as he does before me today. However, Albion had legal advice at the time it was preparing its notice of appeal to the EAT. Albion raised three issues. The first two were issues as to the sufficiency of the evidence upon which the Tribunal reached its conclusion. The third related to the consideration by the Tribunal of three unreported cases not referred to by the advocates at the hearing. Nor did the Tribunal at the hearing invite comment from the advocates on the relevance or application of those authorities.
7. The EAT decided that Mr Nolan's objection that no facts were found by the Tribunal sufficient to justify the finding that Mr and Mrs Silva had been dismissed for asserting that Albion had wrongly refused to pay their bonuses was not sustainable. The EAT also dismissed his objection to the finding by the Tribunal that Mr and Mrs Silva had acted in good faith in making their claim. But it upheld Albion's argument that the Tribunal was wrong not to have given Albion the opportunity to make submissions on the three authorities. Accordingly the EAT held that there had been a significant procedural failure and that ground of appeal succeeded.
8. The EAT then turned to the appropriate order. It said this in paragraph 36 of its judgment:

"We have considered with very great care the appropriate Order to make. In many, if not in most cases, where there has been a procedural defect as occurred in this case, the proper course will be to send the case to a differently constituted Employment Tribunal for rehearing. However, in the particular circumstances of the present case, we are not minded to make such an Order. As we have mentioned, Albion Hotels is insolvent. It is unlikely that Mr and Mrs Silva will see very much, if any, of their compensation. In those circumstances we are most reluctant to put the parties to the expense of a re-hearing, or indeed, to impose such a re-hearing on an Employment Tribunal, when the results seem likely to be largely academic. In those circumstances and exceptionally, we shall remit the matter to the Employment Tribunal to enable the Tribunal to hear submissions on the three authorities that were not referred to by the parties, and upon any findings of fact, that either party may wish the Tribunal to make in determining the question whether Mr and Mrs Silva asserted that Albion Hotels had infringed a right as opposed to their merely asserting the statutory right."

9. In the order drawn up on 15th November 2001 the Tribunal added a proviso to the order that there be a remitter to the same Tribunal, that is to say:

"... unless in the view of the learned Regional Chairman factors emerge which render such an arrangement impracticable or impossible in which case the matter be remitted to be heard by a differently constituted Tribunal as directed by the Regional Chairman."

10. On 7th January 2002 Mr Nolan wrote to the Tribunal Chairman, Mr Edwards, who is the Regional Chairman. In his letter Mr Nolan made serious allegations of unfairness and bias against Mr Edwards. Mr Nolan expressed his firmly held belief that, no matter what, Mr Edward was determined to help Mr and Mrs Silva. He therefore asked that the remitter be to a different tribunal. However, at a further hearing before Mr Edwards on 5th February 2002 the Chairman decided that the case could, and would, be heard by the same Tribunal. In his reasons Mr Edwards pointed out that if Mr Nolan had felt that Mr Edwards had been biased, he should have raised that objection before the EAT so that it could adjudicate on that issue. He said that what the EAT had in mind by the proviso to the order did not involve matters which could have been, but were not, raised in the appeal.
11. Albion then appealed. That appeal was heard by the EAT at a preliminary hearing, Mr Nolan again representing Albion. Judge Serota in giving the judgment of the EAT rejected the appeal. He said:

"It is clear that what was intended by the use of the words `impracticable' or `impossible' was the circumstance which does arise from time to time, where it is impossible or impracticable for the same Tribunal to be reconstituted. It happens, for example, that for reasons such as retirement, unfortunately sometimes death and also sometimes other arrangements that a Tribunal cannot be reconstituted within a reasonable period of time."

12. The EAT then went on to note that Mr Nolan was complaining of bias. He referred to Mr Nolan's statement to the EAT that he did not raise the issue of bias in the original notice of appeal because he was confident that he would succeed and that it was inappropriate therefore to raise issues of bias. The EAT commented:

"It seems to us, and we hope that we are not being unduly cynical, that what Mr Nolan may have had in mind was that, if his appeal failed he would then seek to appeal on a further ground; namely the Chairman's bias."

13. The EAT said that the appropriate time to have raised that issue was at the time of his original notice of appeal; and it noted that at that time Albion had well-known solicitors and counsel who did not raise that issue of bias. Accordingly the appeal was dismissed on the basis that it was far too late to raise the allegation of bias and the order that was made by the EAT was absolutely clear.
14. Mr Nolan, in seeking permission to appeal to this court, submits that for justice to be seen to be done a differently constituted tribunal should hear the case. He says that the requirement that justice must be seen to be done is guaranteed by the rules of natural justice as well as Article 6(1) of the European Convention on Human Rights, and that can only be satisfied if a differently constituted tribunal heard the case. He also said that what he called the general rule that there should be a remitter to a differently constituted tribunal should not be disapplied simply because one of the parties became insolvent. He has in his oral submissions to me today submitted that there was discrimination against an entity with less money. He submits that that is quite wrong and unfair. He asks me to bear in mind the position of the lay members who would be sitting with Mr Edwards. He submits that they will not be able to eliminate from their mind the fact that they had earlier reached a different conclusion. He also suggests that the issue of justice being seen to be done and the application of the Convention have not been considered by this court or the House of Lords since cases such as R v Gough [1993] AC 646 decided before the Human Rights Act 1998 came into force. He suggests that the decision of the European Court of Human Rights in McGonnell v The United Kingdom shows that in situations such as the present it would be a breach of Article 6 for the same person involved in an earlier decision to be asked to look at the matter again. I am not able to accept any of these submissions.
15. First, as a matter of construction of the proviso to the order of the EAT, in my judgment it is clear that the EAT was not contemplating that the emerging factors, which would entitle the Regional Chairman to take the view that it was impractical or impossible for the original Tribunal to hold the remitted hearing, related to subsequently arising events created by a party raising a claim of bias for the first time when that claim could have been raised and asserted at the earlier appeal hearing. Plainly, in my view, the emerging events that were contemplated were events such as death, or other incapacity, of a tribunal member. Accordingly, it seems to me that Albion would have no real prospect of success in challenging the construction put upon the proviso to the order by the Tribunal and the EAT. Indeed, I am not clear that Albion really wishes to challenge that construction. What Mr Nolan, as it seems to me, is really wanting to do is to appeal from the earlier order of 15th November 2001 so as to take the point of bias, although it had not been asserted at the hearing at which that order was made. It is now ten months out of time and no attempt has been made to justify that delay. It is, in my judgment, far too late to take that point.
16. Second, a litigant is not entitled to choose the Tribunal before whom the litigant appears. Sadly, it is too often the case these days that litigants, dissatisfied with a decision, accuse the tribunal of bias or the appearance of bias. But it does not follow that the Tribunal must on that account recuse itself. Having considered the examples of alleged bias given by Mr Nolan, I am wholly unpersuaded that they amount to bias or the appearance of bias in law. The decision itself bears no sign of bias. Rather, it shows a thoroughly conscientious attempt to arrive at a correct resolution of what the Tribunal found was a difficult issue. It expressly acknowledged that the issue was not easy. It did not find all points in favour of Mr and Mrs Silva. On the contrary, both sides were criticised for gilding the lily. Mr Nolan has several times asserted before me that the Tribunal has been found guilty of unfairness. True it is that the Tribunal erred in not putting the authorities to the advocates so that the advocates could comment and make submissions on those authorities. It frequently happens that a tribunal or a judge, having reserved judgment and thought about the case, realises that a particular decision is in point. It is a matter of judgment to decide whether or not citing that authority necessitates referring the authority back to the parties so that they could comment on it. Frequently the judge or tribunal takes the view that it does not need to do so. In the present case it has been held -- and I do not criticise that decision in any way -- that it was necessary to give the parties the opportunity to make submissions on the authorities to which the Tribunal refers. But that was an error of judgment by the Tribunal. It does not demonstrate bias on the part of the Tribunal. In my judgment there has been no breach of natural justice, nor of Article 6, by the order to remit the case to the same Tribunal and I do not accept Mr Nolan's submissions on this point.
17. Third, I do not accept the existence of any general rule that in every case where an appeal is allowed and a remitter ordered because of serious procedural error the case must be remitted to a differently constituted tribunal. The EAT had a complete discretion. It was entitled to take account of matters such as the recoverability of costs from one party being unsuccessful if that party has no money. I myself would not have regarded that as a particularly weighty matter. But the EAT undoubtedly was entitled take account of the fact that there had been a lengthy three-day hearing by the Tribunal and that the only point which it was remitting was the narrow point on the three authorities. Mr Nolan has said that he has not sought that the remitter should result in a complete retrial and that it would be sufficient to remit to a differently constituted tribunal to deal only with the three authorities. That is simply not practicable. The same Tribunal, in my judgment, has to consider the matter in the light of the facts which that tribunal finds or has found. In my judgment there would have been a disproportionate waste of tribunal time -- and it is notorious how busy tribunals are -- as well as of the costs of both parties to require a remitter to a differently constituted tribunal.
18. As for Mr Nolan's suggestion that lay members would not be able to eliminate from their minds that they had reached a different conclusion earlier, in my judgment there is nothing in that point. Lay members acquire experience of acting in a quasi-judicial role by sitting as members of tribunals. I do not see why the lay members cannot loyally accept the EAT's decision that because of the failure to obtain submissions on the authorities, they were wrong to have come to a conclusion without hearing further submissions.
19. Nor do I accept that Mr Nolan is right in suggesting that some new point on the Convention, which has not yet been considered by this court or the House of Lords, would be raised by the proposed appeal. Every year this court has to consider cases where allegations of bias in a lower court are made, and since the Human Rights Act 1998 came into force it is almost invariably the case that a point on Article 6 is taken on such appeals. The House of Lords has considered such points (see Porter v Magill [2002] 2 AC 357). McGonnell related to the anomalous position of the President of the Royal Court in Guernsey who also presided over the island's legislature and was head of its administration. There is nothing comparable to the present case.
20. There being no other compelling ground for this court to hear this case, having considered all the matters raised by Mr Nolan both in writing and orally but being unpersuaded by them, I would dismiss this application.
Order: Application dismissed.