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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McCann v Department for Employment and ... [2011] NIIT 07485_09IT (14 October 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/07485_09IT.html
Cite as: [2011] NIIT 07485_09IT, [2011] NIIT 7485_9IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 07485/09
CLAIMANT: Colin McCann
RESPONDENT: Department for Employment and Learning
DECISION ON REVIEW
The unanimous decision of the tribunal is that having reviewed the decision issued to the parties on 25 February 2011, the tribunal revokes that decision and orders that the decision be taken again at a new Hearing before a differently constituted tribunal.
Constitution of Tribunal:
President: Miss E McBride
Members: Mr B Gourley
Mr I Carroll
Appearances:
The claimant’s representative submitted written representations for consideration at the Hearing in accordance with Rule 14(5) of the Industrial Tribunal Rules of Procedure.
The respondent was represented by Mr P Ferrity, Barrister-at-Law, instructed by the Departmental Solicitor’s Office.
Reasons
1. The purpose of this Hearing was to determine the claimant’s application for a review of the tribunal’s decision on the sole ground of apparent or perceived bias.
2. The tribunal received written submissions on behalf of the claimant and took them into account in so far as they related to that sole ground. The tribunal received oral submissions on behalf of the respondent which it took into account. The tribunal was also referred to a number of documents and authorities which it took into account in so far as they were relevant to the sole matter to be determined.
3. On 19 January 2011, the industrial tribunal which was chaired by the Vice President, Mr Kelly, heard the claimant’s claim of disability discrimination and on 25 February 2011 the tribunal’s decision dismissing the claimant’s claim was issued to the parties.
4. On 11 March 2011, the claimant made an application for a review of the tribunal’s decision under Rule 34(3)(a), (d) and (e). No allegation of bias was made in that review application.
The relevant statutory provisions
5. Rule 34(3) of the Industrial Tribunal Rules of Procedure states:-
Subject to paragraph (4), decisions may be reviewed on the following grounds only:-
(a) the decision was wrongly made as a result of an administrative error;
(b) a party did not receive notice of the proceedings leading to the decision;
(c) the decision was made in the absence of a party;
(d) new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at that time; or
(e) the interests of justice require such a review.
Rule 35 states:-
(1) An application under rule 34 to have a decision reviewed must be made to the Office of the Tribunals within 14 days of the date on which the decision was sent to the parties. The 14 day time limit may be extended by a chairman if he considers that it is just and equitable to do so
(2) The application must be in writing and must identify the grounds of the application in accordance with rule 34(3), but if the decision to be reviewed was made at a hearing, an application may be made orally at that hearing.
(3) The application to have a decision reviewed shall be considered (without the need to hold a hearing) by the chairman of the tribunal which made the decision or, if that is not practicable by –
(a) any chairman nominated by the President or the Vice-President; or
(b) the President or the Vice President, and that person shall refuse the application if he considers that there are no grounds for the decision to be reviewed under rule 34(3) or there is no reasonable prospect of the decision being varied or revoked.
(4) If an application for a review is refused after such preliminary consideration the Secretary shall inform the party making the application in writing of the chairman’s decision and his reasons for it. If the application for a review is not refused the decision shall be reviewed under Rule 36.
Rule 36 states:
(1) Where a party has applied for a review and the application has not been refused after the preliminary consideration mentioned in rule 35, the decision shall be reviewed by the chairman or tribunal who made the original decision. If that is not practicable a different chairman or tribunal (as the case may be) shall be appointed by the President or the Vice-President.
(2) Where no application has been made by a party and the decision is being reviewed on the initiative of the tribunal or chairman, the review must be carried out by the same tribunal or chairman who made the original decision and –
(a) a notice must be sent to each of the parties explaining in summary the grounds upon which it is proposed to review the decision and giving them an opportunity to give reasons why there should be no review; and
(b) such notice must be sent before the expiry of 14 days from the date on which the original decision was sent to the parties.
(3) A tribunal or chairman who reviews a decision under paragraph (1) or (2) may confirm, vary or revoke the decision. If the decision is revoked, the tribunal or chairman must order the decision to be taken again. When an order is made that the original decision be taken again, if the original decision was taken by a chairman without a hearing, the new decision may be taken without hearing the parties and if the original decision was taken at a hearing a new hearing must be held.
6. By correspondence dated 23 March 2011, the claimant was informed that the Vice President had considered his review application (under Rule 35) and had refused it on the basis that there were no grounds for the decision to be reviewed under Rule 34(3).
7. By correspondence dated 26 March 2011, the claimant informed the tribunal that it had recently come to his attention that the Vice President had been involved in his case whilst he was an employee at the Departmental Solicitor’s Office and that he should therefore have recused himself as Chairman because of “this obvious conflict of interest”.
8. By correspondence dated 31 March 2011, the parties were notified that the Vice President had no recollection of having been involved in the claimant’s case while he was employed in the Departmental Solicitor’s Office and it had not been raised by either party at the hearing of the claimant’s case. The parties were also notified that if the Vice President was mistaken and if he was so involved, then this would be a ground for review.
9. By correspondence dated 1 April 2011 the parties were notified that documentary evidence which had been produced by the claimant showed that the Vice President had passed papers in this case, which had been served on the Head of the Civil Service, to the Departmental Solicitor’s Office Litigation Branch on 8 December 2009. The parties were also notified that given the number of queries and papers that would have crossed the Vice President’s desk, he had no memory of it, but had he recalled it he “could not and would not have chaired the hearing as it raises the possibility of the perception of bias on his part”. The parties were further notified that the Vice President considered that it was unfortunate that this issue was not noticed and raised by the respondent at a Case Management Discussion which the Vice President had conducted prior to the substantive hearing and at which he made it clear that he would be chairing the substantive hearing. In addition, the parties were notified that the Vice President had indicated that in view of the overriding objective, if the respondent consented, the decision would be revoked on review and relisted before a freshly constituted tribunal without a review hearing.
10. A Case Management Discussion took place before the Vice President on 15 April 2011. The respondent indicated that:-
(i) they did not consent to the Vice President’s suggestion as set out above;
(ii) they considered that the matter would be best dealt with by the President as it involved an allegation of bias against the Vice President. The claimant’s representative indicated that she was content with either the Vice President or the President hearing the review. The Vice President then decided to stand down and the review was conducted by a newly constituted tribunal chaired by the President.
Time Point
11. At the outset of the Review Hearing, Mr Ferrity pointed out that although the second and current application for a review, which was received on 26 March 2011, had been made outside the 14 day statutory time limit, the respondent had no objection to the tribunal exercising its discretion to extend the time limit on the grounds of justice and equity. In those circumstances the tribunal did extend the time limit. Mr Ferrity also indicated that the respondent had no objection to the tribunal going straight to the review itself. As the application and the review are inter-linked, the tribunal did so.
The Vice President’s Involvement in the Claimant’s case
12. Mr Kelly was appointed to the position of Vice President of the Industrial Tribunals and the Fair Employment Tribunal in October 2010. Prior to his appointment he had been employed by the Department of Finance & Personnel in the Departmental Solicitor’s Office until the end of June 2010 and at all relevant times was Director of the Advisory Branch. In or about August 2009, Mr Kelly was informed that a member of staff had sought permission to have legal representation or other external representation at an internal appeal hearing, as a reasonable adjustment under the Disability Discrimination Act, because of his lack of knowledge of employment law. The member of staff was identified in the documentation referred to Mr Kelly as “Colin”, “C McCann” and “Colin McCann”. Mr Kelly was asked for advice in relation to the request by Ms Rocks and Mr McKeown of the respondent’s Human Resources Department. Mr McKeown was the Head of the Human Resources Department. Mr Kelly advised that the “request for legal representation to be permitted is not a request for a reasonable adjustment in connection with his disability”.
13. Mr McKeown’s refusal to permit the claimant to have legal representation at his internal appeal hearing was included in the claimant’s claim of disability discrimination which was lodged with the tribunal on 25 November 2009.
14. The claimant named Mr Bruce Robinson, who was the Head of the Northern Ireland Civil Service, as the respondent to his claim and the claim was therefore served on him. On 8 December 2009, Mr Robinson’s office referred the claimant’s claim form and other documentation relating to the claimant’s claim to Mr Kelly. Mr Kelly was asked to provide advice and a draft reply to the claim form for signature by Mr Robinson. Mr Kelly passed the papers he had received to the Litigation Branch of the Departmental Solicitor’s Office and notified Mr Robinson’s office that he had done so. He also notified Mr Robinson’s office that he would obtain detailed instructions from the respondent about the specific factual matters alleged in the claim and he advised that the correct respondent to the proceedings should have been the current respondent, not Mr Robinson. Mr Kelly notified the Litigation Branch that the claim appeared to be a complicated DDA/reasonable adjustments matter. He advised them that the correct respondent was the current respondent and he asked them to keep him informed of the matter.
15. On 10 December 2009, Mr Patrick Butler, who is a solicitor in the Litigation Branch, notified Ms Rocks of the respondent’s Human Resources Department and Mr Kelly that he was dealing with the case. There are no documents which indicate that Mr Kelly had any further involvement in the case.
The legal principles
16. Harvey on Industrial Relations and Employment Law at Division P1 paragraph 906 states:-
“It is the fundamental right of every person whose rights and liabilities are determined by judicial process to have a fair hearing by an independent and impartial tribunal. This right is now guaranteed, through the Human Rights Act 1998, by the European Convention on Human Rights (see Art 6). Because of the importance attached to the concept of impartiality in the administration of justice, the existence or appearance of bias on the part of any person sitting in a judicial capacity will ordinarily lead to the disqualification of that person from sitting, or, if the proceedings have been concluded, to the hearing being declared a nullity and the decision set aside. These principles apply to the members of an employment tribunal as they do to all other decision-makers in the judicial process.”
17. In Lawal –v- Northern Spirit Ltd (2003) IRLR 538, the House of Lords confirmed that in:-
“determining whether there is bias in terms of the right to a hearing before an impartial tribunal under Article 6(1) of the European Convention on Human Rights or the common law test of bias, the principle to be applied is ….. whether a fair-minded and informed observer, having considered the given facts, would conclude that there was a real possibility that the tribunal was biased. The key to this test is public perception of the possibility of unconscious bias”.
18. The task, therefore, is for the tribunal to ascertain all the circumstances which have given rise to the suggestion that the Vice President was biased and then to ask whether the fair minded and informed observer, having considered those facts, would conclude that there was a real possibility that the tribunal was biased.
19. In R V Jones (2010) NICC39 McCloskey J stated, in relation to a recusal application, that there:-
“will always be a risk in every litigation context that some recusal applications are made on flimsy, though superficially attractive, grounds and are granted without rigorous scrutiny by an overly sensitive and defensive tribunal ….
It is trite that where an application of this kind is made, an asserted risk to the fairness of the trial which is flimsy or fanciful will not suffice. However, the converse proposition applies with equal force. The Court is required to make an evaluative judgement based on all the information available.”
20. In Her Majesty’s Attorney General –v- Pelling (2006) 1FLR93, Laws LJ stated:-
“(18) In determining such applications, it is important that judicial officers discharge their duty to do so and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge they will have their case tried by someone thought to be more likely to decide the case in their favour.”
21. In Locabail –v- Bayfield Properties Ltd & Another (2000) IRLR96, the Court of Appeal held that when applying the test of possibility of bias:-
“it is appropriate to inquire whether the judge knew of the matter relied on as appearing to undermine his impartiality. If it is shown that he did not know of it, the danger of its having influenced his judgement is eliminated and the appearance of possible bias is dispelled. All will turn on the facts of the particular case. However there can be no question of cross-examining or seeking disclosure from the judge. Nor will the reviewing court pay attention to any statement by the judge concerning the impact of any knowledge on his mind or his decision. It is for the reviewing court and not the judge whose impartiality is challenged to assess the risk that some illegitimate extraneous consideration may have influenced the decision.”
22. In re Medicaments and Related Classes of Goods (No2) (2001) 1 WLR 700 the Court of Appeal stated that:-
“(86) The material circumstances will include any explanation given by the Judge under review as to his knowledge or appreciation of those circumstances. Where that explanation is accepted by the applicant for review it can be treated as accurate. Where it is not accepted, it becomes one further matter to be considered from the viewpoint of a fair-minded observer. The Court does not have to rule whether the explanation should be accepted or rejected. Rather it has to decide whether or not the fair-minded observer would consider that there was a real danger of bias notwithstanding the explanation advanced.”
23. At paragraph 25 of the Locabail decision the Court of Appeal stated:-
“It would be dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias. Everything will depend on the facts, which may include the nature of the issue to be decided. We cannot, however, conceive of circumstances in which an objection could be soundly based …. on the judge’s employment background or history …. . But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal. We repeat: every application must be decided on the facts and circumstances of the individual case. The greater the passage of time between the event relied on as showing a danger of bias and the case in which the objection is raised, the weaker (other things being equal) the objection will be.”
24. In Jones –v- DAS Legal Expenses Insurance Company Ltd (2004) IRLR218 the Court of Appeal identified seven factors which they considered the fair-minded and informed observer would take into account in that particular case. The first five factors were very specific to the case before them. The sixth factor was:-
“Without being complacent nor unduly sensitive or suspicious, the observer would appreciate that professional judges are trained to judge and to judge objectively and dispassionately. This does not undermine the need for constant vigilance that judges maintain that impartiality - it is a matter of balance. In Locabail at paragraph 21, the Court found force in these observations of the Constitutional Court of South Africa in President of the Republic of South Africa & Others –v- South African Rugby Football Union & Others 1999 (7) BCLR725 (CC,753):-
‘The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the judges to administer justice without fear or favour, and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or pre-dispositions. At the same time, it must never be forgotten that an impartial judge is a fundamental prerequisite for a fair trial …’.”
The seventh factor was:-
“The charge of impartiality has to lie against the tribunal and this tribunal consisted not only of its chairman but also of two independent wing-members who were equal judges of the facts as the chairman was. Their impartiality is not in question and their decision was unanimous.”
25. However the tribunal noted that in Lodwick –v- Southwark London Borough Council (2004) IRLR554 a differently constituted Court of Appeal held that:
“If grounds are found to be present which would lead the appropriate observer to conclude that there was a real possibility that the Chairman was biased, it could not properly be held that the requirement of a fair hearing was satisfied by the presence of the lay members. As the legally qualified and presiding member of a tribunal of three, the position of the Chairman is an important one and any apparent bias on his part is not nullified by the presence of the two lay members who might outvote him.”
26. IN THE MATTER of an Application by Belfast International Airport Limited for Leave to Apply for Judicial Review (judgement delivered on 29 March 2011) McCloskey J stated that in giving effect to the governing principles relating to apparent or perceived bias, he would take into account the following factors, amongst others:-
(a) The presumed independence of the judiciary.
(b) The statutory judicial oath.
(c) The crucial distinction between a part-time judge in legal practice and a full-time professional judge.
(d) The passage of time.
(e) The likely impact on the hypothetical observer of a judge’s reactions and replies in open court, in response to the issues as they were raised by the moving party.
(f) The character of the litigation.
(g) The overriding objective.
27. Having regard to the test and governing principles set out above, the tribunal considers that the material factors which a fair-minded and informed observer would take into account would include:-
(1) the presumed independence of the Vice President;
(2) the statutory judicial oath taken by the Vice President;
(3) the fact that the Vice President was a full-time member of the tribunal judiciary when he chaired the hearing of the claimant’s case;
(4) the fact that at the date of Hearing over a year had passed since the Vice President had any involvement in the claimant’s case;
(5) the fact that the Vice President indicated that he had no memory of having had any involvement in the case at the time of the Hearing, given the number of queries and papers that would have crossed his desk;
(6) the fact that the application was only made after the decision had been issued.
28. If those had been the only material factors which had a bearing on the suggestion that Mr Kelly was biased, the tribunal would have been satisfied that the fair minded and informed observer, having considered those factors, would have concluded that there was no real possibility that the tribunal was biased. However, the tribunal considered there were a number of other factors which also had a bearing on the issue of bias and which the fair-minded and informed observer would have taken into account namely:-
(a) although the Vice President indicated that he had no recollection of any involvement in the case, he also indicated that if he had recalled, he could not and would not have chaired the Hearing and he proposed, if the parties consented, to revoke the decision and to have the hearing relisted before a freshly constituted tribunal;
(b) unlike the circumstances in any of the cases to which the tribunal was referred, the Vice President had been asked for and had provided specific advice to Ms Rocks and to Mr McKeown, the respondent’s Head of Human Resources, in relation to the right of a member of staff (who was identified as Colin McCann) to have legal representation at an internal appeal hearing, as a reasonable adjustment under the Disability Discrimination Act. Although that advice was sought and provided approximately three months before the claimant initiated proceedings, the tribunal is satisfied that Mr McKeown’s refusal to permit the claimant to be legally represented, as a reasonable adjustment, formed part of the claimant’s claim of disability discrimination to the tribunal. That meant that the Vice President was adjudicating on the claimant’s claim having provided advice to the respondent on a specific aspect of it;
(c) Mr Kelly had also been sent the claimant’s claim form and had been asked to provide advice and a response in relation to it on behalf of Mr Robinson. Mr Kelly notified Mr Robinson’s office that he would obtain detailed instructions from the respondent about the specific factual matters alleged in it. Although Mr Kelly referred the claim form and related documentation to the Litigation Branch, it is also clear that he had read the claim form and the other documents before doing so and had formed the view that the claim appeared to be a complicated DDA/reasonable adjustments matter. Although there are no documents which indicate that Mr Kelly had any further involvement in the case thereafter, he did ask to be kept informed of the matter.
29. Although the Vice President had no memory of his involvement in the case, the tribunal considers that the fair-minded and informed observer would conclude that, notwithstanding the factors set out above at paragraph 27 above, there was a real possibility that the Vice President could have been affected subconsciously by his involvement and that there was therefore a real possibility of bias which would not be nullified by the presence of the two lay members or by the fact that the tribunal’s decision was unanimous and even if, as submitted by Mr Ferrity, it was the only decision the tribunal could properly have reached on the evidence and the law. In those circumstances the tribunal concludes that, having reviewed the decision, it should be revoked.
30. It was clear from the written representations of the claimant’s representative that the claimant’s application was not only for the decision to be revoked following review, but for the claimant’s claim to be “allowed”. However, Rule 36(3), as set out at paragraph 5 above, makes it clear that when the tribunal revokes a decision, the tribunal must order the decision to be taken again and where, as in this case, the original decision was taken at a hearing, a new hearing must be held. The tribunal therefore orders that a new hearing will be held before a tribunal which is not made up of the members who made the original decision or the members who conducted this review hearing.
______________________________________
E McBride CBE
President
Date and place of hearing: 26 September 2011, Belfast
Date decision recorded in register and issued to parties: