England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		16 April 2013

1. Lord Justice Maurice Kay:

1. This case was listed before us today as a substantive appeal. It concerns the operation of the TUPE Regulations in circumstances where the respondent's employees were working (indeed still do work) for The Manchester College. The employees succeeded in their applications to the employment tribunal and successfully resisted the College's appeal to the EAT. The substantive hearing in this court related to interesting points of law, particularly in relation to Regulation 7 of the TUPE Regulations. In the event, we are not going to determine that substantive appeal. We are going to adjourn it in the circumstances which I shall now describe.
2. Very late in the day, in fact I think last Friday, the College filed an application to amend the grounds of appeal so as to include an additional ground suggesting that the employment tribunal might have been tainted by apparent bias. The circumstances giving rise to that application were unknown to the College at the time of the hearing in the employment tribunal and in the EAT. They came to light following a subsequent and different application to the same employment tribunal, when it was suggested to counsel representing the College that the Employment Judge who had presided in the employment tribunal hearings was herself a lecturer in a further or higher education establishment and might be a member of the same union, the UCU, to which the employees belonged. This first came to light in October last year.
3. Solicitors acting on behalf of the College then sought to ascertain the facts. I say at once that there is evidence to the effect that the Employment Judge, who is a part-time employment judge, is also employed in a higher or further education establishment where she teaches legal subjects, has had some responsibility for pro bono work in that institution and has also worked in a law centre.
4. For my part, I do not think that her working in a different institution as a lecturer in relation to pro bono activities, or in a law centre, have any bearing on this case. What may have a bearing on it would be her membership of the very same trade union to which the employees belong. That is an unknown factor at the moment.
5. The solicitors acting on behalf of the College have sought to ascertain the facts, but they have met with resistance. Initially they corresponded with the Regional Judge of the Employment Tribunals. After he had consulted the Employment Judge in question, she declined to say whether she was a member of a trade union, considering this to be confidential information and a personal matter. That was relayed to the employees' solicitor. They corresponded further. A point came where the Regional Judge referred the matter to the President of the Employment Tribunals. He raised it with the Employment Judge in question, but once again she declined to say whether or not she was a member of a, let alone this, trade union. Indeed she was declining to say anything about her employment, although, as I have said, there is evidence about that from other sources.
6. Those were the circumstances in which the application to amend was filed. It was a difficult application, as Miss O'Rourke QC accepts, because on the crucial issue it was not supported by facts. This explains the terms of the proposed additional ground of appeal, which states:

"(8) the ET Judge being a part-time Employment Judge wrongly failed to disclose at the outset of the hearing and/or during the course of the hearing as the issues in the case became apparent and/or prior to the remedies hearing matters concerning her professional life and positions or memberships held which ought to have been considered material for disclosure to the parties such that proper consideration could be given by all to the potential issue of apparent bias."

7. In the course of submissions this morning, it became apparent that if there is anything in this train of thought, it would not necessarily be through the enlargement of this appeal in this court that a resolution might be found. The alternative would be the making of an application in the Employment Appeal Tribunal for a review of its decision in the interests of justice pursuant to rule 33(1)(c) of the Employment Appeal Tribunal Rules.
8. In the course of the morning, Miss O'Rourke's submissions morphed from being based on an application for permission to amend into one for an adjournment so that an application could be made to the EAT pursuant to rule 33. As we have already indicated, we propose to grant the adjournment for that purpose. In those circumstances it would not be right for us to say very much about the merits of the application which the College will now make to the EAT.
9. Suffice it to say that, having been referred to the leading authorities on apparent bias, in particular Porter v Magill [2002] 2 AC 357, Davidson v Scottish Ministers [2004] UKHL 34 and Helow v Secretary of State for the Home Department [2008] 1 WLR 2416, we have come to the conclusion that there is sufficient of concern to make it appropriate to enable the College to make its application. We simply do not know what it will reveal.
10. It seems to me that having the matter dealt with in the EAT rather than through an adjournment but retention of the case in this court is the wiser course, not least because, firstly, the EAT has well defined procedures set out in its Practice Direction for processing allegations of apparent bias, and, secondly, because this is a problem which may well arise in other cases in the employment tribunal system. I tend to the view that it is more appropriate that the EAT itself, perhaps through its President, should address these issues in the specific context of a jurisdiction based on a carefully calibrated constitution of tribunals rather than this court dealing with it now without the benefit of prior consideration by the EAT.
11. For my part, I find it surprising and regrettable that the Employment Judge has thus far declined to make her position clear. However, I say no more about that now.
12. On behalf of the employees, Mr O'Dempsey has made a number of points seeking to resist the application to adjourn. Most of them are points which he will be able to raise again in the EAT when more is known of the circumstances. I record at this stage that he has drawn our attention to the fact that the questions which the Employment Judge declined to answer were expressed in very broad terms, more broadly than a specific question about membership of a specific union. However, it seems to me that if those questions had been addressed prior to, say, the original EAT hearing, the EAT would have been at liberty to refine the questions before raising them with the Employment Judge.
13. Mr O'Dempsey also refers to delay. As I have said, these matters came to light in October last year. There is, in particular, one period of six weeks when the correspondence lay dormant. It does not seem to me that that or other aspects of delay are such that it makes it inappropriate even for this court to contemplate sending the matter back to the EAT. It is a matter which the EAT can consider in full at the appropriate time.
14. Whilst it may be said that the form in which the questions were put by the employees' solicitors were unduly wide, I do not think one can conclusively say at this stage that it was a mere fishing expedition. To the extent that it embraced membership of this particular union and to the extent that that, to put it no higher, raises the possibility of an issue of apparent bias, it seems to me that there is something upon which the application could bite.
15. For those reasons, therefore, I take the view that the appropriate course is to adjourn so as to permit a timely application for review under rule 33. We hope that the EAT is able to deal with it expeditiously, although, as I have suggested, it may be a matter which the President feels it is appropriate to deal with himself. It is certainly not necessary for the matter to go back to the EAT as constituted for the original appeal.
16. Once the outcome of that application to the EAT is known, then the matter can resume its course as a substantive appeal in this court. As was suggested in the course of submissions, if by any chance the decision of the EAT on the rule 33 application is itself to be challenged on appeal, that appeal could then be joined with the present substantive appeal when the matter comes back here.
17. It is a matter of great regret that we cannot achieve finality in this case today. It is regrettable for the parties, particularly the employees who have succeeded at both stages, to whom no blame whatsoever attaches. It is unfortunate for the College, and it is unfortunate also, possibly, to others who are awaiting the outcome of this litigation, because we are told that there are other cases in other tribunals which stand adjourned awaiting the resolution of this case, although it is not suggested that the outcome of this case will necessarily be determinative of those other cases concerning other locations.
18. For these reasons I would adjourn the matter to enable the application to be made to the EAT.

Lord Justice Moore-Bick:

19. I agree that, for the reasons given by Maurice Kay LJ, sufficient grounds have been shown in this case for adjourning the appeal to enable the appellant to make an application to the EAT for a review of its present decision. I wish to emphasise, however, that it will be for the EAT itself to decide whether to exercise its discretion in favour of granting the appellant such a review and, if so, to decide what, if any, questions should properly be put to the Employment Judge for its assistance.

Lord Justice Jackson:

20. I, too, agree that the College's application for an adjournment should be granted for the reasons given by Maurice Kay LJ. My concurrence in this order should not be taken as indicating an expectation that the College will succeed in its proposed new ground of challenge.

Order: Appeal adjourned to be remitted back to the EAT