Industrial Tribunals Northern Ireland Decisions

 

THE INDUSTRIAL TRIBUNALS

 

CASE REF:   782/13

 

 

CLAIMANT:                      Gillian Fairley

 

RESPONDENT:               Eric Jenkinson

                                       t/a Jenkinson Consulting & Associates

 

                               

 

DECISION ON REVIEW

The unanimous decision of the tribunal is that the claimant’s application for a review of the decision issued orally to the parties at the Hearing on 3 September 2013 on the ground of perceived bias is granted and the decision is revoked.  A new Hearing will take place before a differently constituted tribunal on Thursday 9 January 2014 at 10.00am. 

 

 

Constitution of Tribunal:

President:    Miss E McBride

Members:    Mr M McKeown

                    Mr J Alan Kerr

 

Appearances:

The claimant was represented by Mr P Sefton, Barrister-at-Law, instructed by Murphy Solicitors.

 

The respondent appeared in person.

 

 

Reasons

 

The tribunal’s reasons were given orally at the conclusion of the Hearing.  They are also set out below.

 

1.       The purpose of this Hearing was to determine the claimant’s application for a review of the tribunal’s decision on the ground of perceived bias. 

 

2.       The claimant’s claim was heard on 3 September 2013.  The claimant’s claim was dismissed by the tribunal and reasons were given orally at the Hearing on 3 September 2013. 

 

3.       Later that day the claimant sent an e-mail to the tribunal in which she stated:-

 

                    “It has come to my attention that one of the panel members from today’s tribunal hearing the above case has a commercial relationship with the respondent.  Mr Wilfred Mitchell has engaged the Respondent organisation to undertake work for his private business Parkanaur Residential Home on at least five occasions between February 2010 and February 2012.”

 

4.       The Vice President, Mr Kelly, who had been the Chairman of the tribunal treated the claimant’s e-mail as an application for a review of the tribunal’s decision on the ground of perceived (apparent) bias and directed that given the nature of the alleged issues, it would not be practicable for the review to be heard by the same panel.  The review application was therefore heard by the present panel following a Case Management Discussion which was conducted by the President on 10 October 2013. 

 

The Relevant Legal Principles

 

5.       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.”

 

          It has been made clear by the Employment Appeal Tribunal and the Court of Appeal in a number of cases including University College of Swansea –v- Cornelius (1988) ICR735, Hamilton VGMB (Northern Region) (2007) IRLR391 and Stansbury –v- Datapulse Plc (2004) IRLR466 that those same principles apply even where the apparent bias is on the part of only one member of the Tribunal and even if that member is a lay panel member. 

 

6.       In Lawal –v- Northern Spirit Ltd (2003) IRLR538, 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 that stated in Porter –v- Magill, namely 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.”

 

7.       Having considered:-

 

(i)       the claimant’s initial e-mail of 3 September 2013 to the tribunal;

 

(ii)      Mr Gage’s e-mail of 4 September 2013 to Mr Mitchell;

 

(iii)      Mr Mitchell’s e-mail of 5 September 2013 to the tribunal;

 

(iv)      Mr Jenkinson’s letter of 9 September 2013 to the tribunal;

 

(v)      the affidavits of the claimant and Mr Jenkinson and attachments;

 

(vi)      Mr Mitchell’s response of 18 November 2013; and

 

(vii)     the representations of Mr Sefton and Mr Jenkinson;

 

the tribunal found the following relevant facts in relation to Mr Mitchell’s involvement with Parkanaur College or Parkanaur Residential Home and with the respondent organisation.

 

(1)      Mr Mitchell, the lay panel member, and Mr Jenkinson, the respondent, have never met.

 

(2)      Mr Mitchell stated that he was not the owner or proprietor of either Parkanaur College or Parkanaur Residential Home.  In his e-mail of 5 September 2013 to the tribunal, Mr Mitchell stated that he was “employed as a consultant for the Thomas Doran Parkanaur Trust” and in his response of 18 November 2013 to the claimant and respondents’ sworn affidavits, he stated that he was “employed on a part-time basis as a Business Consultant for the Thomas Doran Trust which is a registered Charity”.  However the tribunal considered that it was significant that Mr Gage, of G & L Management Consultants (whom Mr Mitchell had contacted to clarify his i.e. Mr Mitchell’s relationship with the respondent organisation), addressed Mr Mitchell as ‘Chief Executive, Parkanaur Residential College’ in his e-mail of 4 September 2013 to him.  Mr Mitchell copied that e-mail to the tribunal on 5 September 2013.  The tribunal is therefore satisfied that while Mr Mitchell is not the owner or proprietor of Parkanaur Residential College, he is the Chief Executive of it. 

 

(3)      The tribunal is satisfied that Mr Gage, of G & L Management Consultants, procured the services of the respondent organisation on behalf of Parkanaur Residential College and that the respondent organisation carried out six projects in relation to occupational psychometric testing for Parkanaur Residential College over a two year period between January 2010 and February 2012.  The tribunal is also satisfied that it was the claimant who carried out the work on behalf of the respondent organisation (whether as an employee or partner) for Parkanaur Residential College, that she met Mr Mitchell face to face in relation to the work on one occasion in 2010 and that she had dealings with Mr Mitchell thereafter by e-mail.  The tribunal is further satisfied that all correspondence and the initial proposal for work had the respondent organisation’s brand on it and that each of the invoices for the six projects was on the respondent organisation’s headed paper payable by Parkanaur Residential College to the respondent organisation.  The tribunal is satisfied from those facts that there was a business/commercial relationship between Parkanaur Residential College and the respondent organisation.

 

8.       The tribunal is satisfied that a fair minded and informed observer, having considered those facts, would conclude that there was a real possibility that the tribunal was biased because of Mr Mitchell’s business/commercial relationship with the respondent organisation between January 2010 and February 2012, as Chief Executive of Parkanaur Residential College.

 

9.       The tribunal is therefore satisfied that it must revoke the tribunal’s decision unless it is satisfied that the claimant waived her right to object to the perceived bias on the part of Mr Mitchell by failing to raise the conflict until after the decision had been announced, particularly as Mr Mitchell’s full name had been displayed in front of him throughout the hearing.

 

10.     On balance, the tribunal is not satisfied that the claimant was aware of who Mr Mitchell was during the hearing.  In those circumstances the tribunal is not satisfied that the claimant has waived her right to object to apparent bias.  The tribunal therefore revoked the decision of the previous tribunal which was announced on 3 September 2013 and ordered that a new hearing will take place before a differently constituted tribunal on 9 January 2014 at 10.00am.

 

11.     Before fixing the date for the new Hearing, Mr Jenkinson asked the tribunal if he could appeal the tribunal’s decision on review.  The President informed Mr Jenkinson that she could not advise him in relation to a right of appeal but that an appeal to the Court of Appeal had to be on a point of law and had to be made within six weeks of the issue of this tribunal’s decision.  The President also informed Mr Jenkinson that he should seek legal advice if he wished to appeal the tribunal’s decision on review. 

 

  

 

 

 

______________________________________

E McBride CBE

President

 

 

Date and place of hearing:  5 December 2013, Belfast                

 

 

Date decision recorded in register and issued to parties: