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
(Miss Recorder E Slade QC)

		Royal Courts of Justice Strand London, WC2
		Thursday, 8th May 2003

Thursday, 8th May 2003

1. LORD JUSTICE TUCKEY: Keene LJ will deal with this case.
2. LORD JUSTICE KEENE: This is a renewed application for permission to appeal against a decision of the Employment Appeal Tribunal ("the EAT") at a preliminary hearing on 26th September 2002. The EAT allowed two grounds of appeal to proceed to a full appeal hearing, but it refused to allow other grounds to proceed. Mr Kemmeni had claimed for unfair dismissal, breach of contract and race discrimination, but those claims had been dismissed by an Employment Tribunal.
3. The applicant, who is black, was a sales executive with the respondent company, beginning that employment on 9th April 1999. In due course, it seems there were complaints from customers and other staff about the applicant and he, in turn, complained that he had been discriminated against in the way in which he had been offered training. He also complained that he had not been paid commission that was properly due to him.
4. The Employment Tribunal noted that he had secretly taped meetings and conversations which he had had with a director of the respondent company, a Mr Carroll, and others, including customers.
5. A first originating application, an IT1, was submitted by Mr Kemmeni to the Employment Tribunal on 16th May 2000, complaining of unfair dismissal or constructive dismissal, racial discrimination and non-payment. He then went sick during the last few weeks of his employment. He subsequently telephoned the company to say that he was ready to come back to work, a call which caused some confusion. Ultimately, the company issued a letter of 29th June 2000 which contained his P45.
6. The Employment Tribunal found that the applicant had terminated his employment by issuing the first IT1 and that he had no claim for unfair dismissal. It also found that there had been no breach of contract by the company and so there had been no constructive dismissal.
7. So far as the claim against the second respondent, Mr Lewis, was concerned, the Tribunal concluded that Mr Lewis ceased to have any dealings with the applicant after December 1999 and that the racial discrimination claims against him were therefore out of time. It also noted that the applicant had made no application to extend time.
8. The claim against Mr Carroll, the third respondent, arose out of an alleged remark by Mr Carroll which was denied by him in his evidence-in-chief. The Tribunal noted that he was not cross-examined on this denial. Ultimately, it found no basis for the claim of racial discrimination.
9. Towards the end of its Extended Reasons the Tribunal noted that the applicant had represented himself and expressed some sympathy for the difficulties faced by a lay person; but the Tribunal commented that the applicant had conducted the hearing in a vexatious, disruptive and unreasonable manner. They described this in some detail. At paragraph 41 the Tribunal said this:

"The Tribunal believed that the Applicant had been secretly recording the Tribunal proceedings through his mobile phone being linked to a remote recording device. Having adjourned to take the advice of the regional Chairman the Tribunal asked the Applicant to produce his mobile phone. He produced one phone and on being reminded by the Respondent's counsel that he had a second phone, produced that too for the Tribunal. From that time onwards the Tribunal requested that all mobile phones and other mobile electronic devices (lap tops, hand held computers, recording devices etc) be placed on a table at the front of the Tribunal room while the Tribunal was in session. This was done by all parties. Casual observers present in the Tribunal room were asked to do the same."

At the end of the decision, for reasons spelt out by it, the Tribunal ordered the applicant to pay costs of five days out of the 12 days which his hearing had taken.

10. The first ground, and indeed the main ground, raised in this application and emphasised by Mr Kemmeni, who appears in person before us today, is that the Employment Appeal Tribunal should have allowed an allegation of bias on the part of the Employment Tribunal, and in particular its Chairman, to go to a full hearing. This centres around the belief by the Employment Tribunal that the applicant was secretly recording the proceedings. Mr Kemmeni before us has denied this. He says that when the Chairman refused him permission to record the proceedings he accepted that, but she clearly did not believe that he was not recording the proceedings. It is said that having made such a bizarre allegation against him, there was a real danger that the Tribunal and its Chairman was biased. Mr Kemmeni says that he was treated differently by the Chairman from others present at the hearing. Reliance is placed in the formal skeleton argument which had been lodged on behalf of the applicant when he was legally represented on the well-known case of Re Medicaments [2001] 1 WLR 700. It is also argued that the EAT should have ascertained the circumstances having a bearing on this allegation of bias, but failed to do so. Mr Kemmeni has particularly emphasised that the EAT did not obtain the notes of evidence from the Employment Tribunal, and he contends that this amounts to a failure on its part to investigate properly this allegation.
11. The EAT, for its part, briefly summarised the facts, noting, first, that everyone was asked to surrender their mobile telephones and, second, that the applicant only surrendered his second telephone when counsel for the respondents had pointed out that he had one. The EAT on this issue concluded:

" ... we can see no indication that the reference to the suspicion of secret taping affected in any way its [the Tribunal's] deliberations in the case".

12. It is right that the EAT does not spell out the Re Medicaments test in full of whether a fair-minded and informed observer would conclude that there was a real possibility that the Tribunal was biased. It is, however, not required to spell that test out in precise and detailed terms. Nor, in my judgment, need it carry out any investigation if it properly formed the view that it has the relevant facts before it. That will depend on the circumstances of the individual case. In this case it expressly stated that it did not consider further investigation necessary: see paragraph 20. So far as the non-obtaining of the notes of evidence by the EAT from the Employment Tribunal is concerned, I, for my part, cannot see that they would have helped on this particular issue. This issue of bias was one as to the proceedings themselves rather than as to the substantive issues, and it is most unlikely that the notes of evidence would have been of any assistance on this particular point. Certainly it seems to me to have been open to the EAT to have taken the view that they had investigated sufficiently.
13. The test was very succinctly and properly put by Lord Hope of Craighead in Porter v Magill [2001] UKHL 67, [2002] 2 AC 357 at paragraph 103:

"The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the Tribunal was biased."

Here the EAT knew what it was that the allegation related to; it also had a detailed account from the Employment Tribunal Chairman of what had happened at the hearing. It also knew that the ET had found that the applicant had secretly taped meetings and conversations with the director of the respondent company and others. With that background, the Employment Tribunal obviously had its suspicions aroused by some conduct on the part of the applicant. It acted perfectly properly by requiring not only the applicant but all parties to put all electronic devices on a table. The Chairman clearly had to form a view on the possibility that, despite his denial, Mr Kemmeni was in fact recording the proceedings. The fact that it formed a view adverse to him on that particular aspect of the case does not, to my mind, indicate that the Tribunal was therefore biased, on the usual test, when it came to deal with the substantive claims with which it had to deal. I cannot, for my part, see how this sequence of events could lead a fair-minded and informed observer to conclude that there was a real possibility that the Employment Tribunal was biased.

14. The other matter which is raised before us can be dealt with more briefly. It was argued before the EAT that no specific reference had been made in the Tribunal's decision to the written contract of employment. The Tribunal had found that the employer had not broken the terms of its contract with the applicant, and so there was no constructive dismissal.
15. In the end this issue related to the commission paid to him on a particular and unexpected contract with an organisation called Boo.com. The applicant, in fact, did not deal with this because he was on holiday at the time. Another employee dealt with the matter. Ultimately, it was agreed that the applicant should get commission on the next unexpected deal to come in. The applicant obtained permission from the EAT to proceed to a full appeal on the issue of the compromise agreement about the Boo.com contract. Nowhere does it appear to have been asserted before the Employment Tribunal that the terms of the applicant's contract of employment entitled him to commission on matters with which he did not deal. In those circumstances, the Employment Tribunal was not obliged to set out the terms of the written contract of employment; and I can see nothing wrong in the way in which the Employment Appeal Tribunal dealt with that matter.
16. For my part, I can see no real prospect of success on any of the matters which the applicant has urged before us today. I therefore would refuse permission to appeal.
17. LORD JUSTICE TUCKEY: I agree. Mr Kemmeni believes that the Chairman of the Employment Tribunal was biased against him. That is a complaint which this court often hears from unsuccessful litigants.
18. An allegation of bias is a very serious one which an appellate court will, of course, be concerned to investigate if it has any reason to think that there has been bias. A simple assertion that there has been bias is not enough. The fact that a Tribunal has criticised a litigant or not accepted his evidence is not enough either. Some real ground for believing that there may have been bias must be shown. I can see no such ground in this case.
Order: Application refused.