United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 1168_95_2311

Appeal No. EAT/1168/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 23rd November 1995

Judgment delivered on 12th December 1995

HIS HONOUR JUDGE CLARK

MRS T A MARSLAND

MR A D SCOTT

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RIVERSIDE RESTAURANTS LIMITED T/A HARRY RAMSDEN          APPELLANTS

MR D TREMAYNE          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR M SHRIVES

(Solicitor)

Hammond Suddards

2 Park Lane

LS3 1ES

For the Respondent MR D TREMAYNE IN PERSON


 


JUDGE CLARK: This is an appeal by the employer against interlocutory orders made in these proceedings by the Nottingham Industrial Tribunal (Chairman Mr D R Sneath) on 26th September 1995.

The Respondent employee, Mr Tremayne, was employed by the Appellant as bar person at their Nottingham restaurant from 8th June 1994 until his dismissal on 13th October 1994. In an originating application presented on 11th January 1995 he complains of racial discrimination during his employment and in connection with his dismissal.

The Appellant denies unlawful discrimination and contends that this dismissal was for gross misconduct following a complaint by a fellow employee, Angela Carling, that he had sexually harassed her.

The complaint came on for hearing before the tribunal on 14th August 1995. The Respondent conducted his own case. He gave evidence-in-chief which continued into the following day. At 10.25 a.m. on 15th August, Mr Shrives, the solicitor representing the Appellant, commenced his cross-examination of the Respondent. At about 1 p.m. the short adjournment was taken, with cross-examination incomplete. Upon resumption of the hearing Mr Shrives complained that the Appellant believed it had not had a fair hearing. In particular he claimed that the tribunal chairman had given clear indications that he had pre-judged certain matters and that cross-examination of the Respondent had been restricted in a way that prevented the Appellant from properly challenging his evidence. Mr Shrives indicated that the Appellant would take no further part in the hearing but would submit written statements from those people he had intended to call as witnesses. The Appellant then withdrew and the tribunal proceeded to hear some 8 witnesses called by the Respondent in the absence of the Appellant.

The chairman, not unnaturally, was troubled by this turn of events, and on the following day wrote to the Appellants solicitors, with the approval of the lay members, indicating that he proposed issuing witness orders of the tribunal's own motion against the 6 witnesses whose written statements the Appellant had intended to put before the tribunal.

Mr Shrives responded to this proposal in extenso in a 16 page letter dated 30th August 1995 ["the letter"]. In summary, he opposed the issuing of witness orders and invited the tribunal to discharge itself on the grounds of bias and order a re-hearing before a fresh tribunal.

The tribunal considered these applications at an interlocutory hearing held on 26th September. The Appellant did not attend, the Respondent did. He told us that the hearing lasted for 2 minutes and that the chairman told him that the tribunal would do whatever was necessary to get the case going on again.

Following that hearing the tribunal refused to order a re-hearing and on 11th October issued witness orders against the 6 potential Appellant's witnesses. Their written reasons for so ordering were sent to the parties on 28th September ["The reasons"]. The matter was then re-listed for a continued hearing before the same tribunal on 27th-29th November 1995.

By Notice of Appeal received on 6th November 1995 the employer appealed against the tribunal's refusal to order a re-hearing before a different tribunal and against the issuing of the witness orders.

That appeal came before us on 23rd November 1995 and occupied a full day, during which we heard careful and detailed submissions by Mr Shrives. Mr Tremayne appeared in person and pointed out the prejudice to him of having his case re-heard before a fresh tribunal, particularly where it had gone so far his way. He relied upon the tribunal's reasons for making the orders which it did, and disputed any suggestion that the Chairman's conduct of the proceedings appeared to be biased.

We remind ourselves at the outset that our powers under Section 136 of Employment Protection (Consolidation) Act 1978 to interfere with interlocutory orders of the Industrial Tribunal are limited to correcting errors of law in the same way as when we are dealing with final decisions of the tribunal. Medallion Holidays Ltd v Birch [1985] ICR 578.

These are matters essentially within the discretion of the Industrial Tribunal. Provided that discretion is exercised judicially it is not for us to interfere. Useful guidance is to be found in the judgment given by Arnold J in this tribunal in Bastick v James Lane [1979] ICR 778, 782 B-C:-

"Now we think that when we, in this appellate tribunal, approach a consideration of the validity of a decision by an industrial tribunal, or by the appropriate officer of an industrial tribunal, upon a matter of discretion, we must look for two things, the discovery of either of which will be sufficient to entitle us to overturn the exercise of that discretion. Either we must find, in order so to do, that the tribunal, or its chairman, has taken some matter which it was improper to take into account or has failed to take into account some matter which it was necessary to take into account in order that discretion might be properly exercised; or, alternatively if we do not find that, that the decision which was made by the tribunal, or its chairman, in the exercise of its discretion was so far beyond what any reasonable tribunal or chairman could have decided that we are entitled to reject it as perverse."

That passage was expressly approved by the Court of Appeal in Carter v Credit Change Ltd [1979] ICR 909 per Stephenson LJ at 918F.

We shall deal first with the issuing of witness orders of the tribunal's own motion. Until revision of the Industrial Tribunal rules of procedure in 1993 no power existed for a tribunal to issue witness orders of its own motion. However, that power is now expressly provided in paragraph 4(2) of Schedule 1 to the Industrial Tribunal (Constitution and Rules of Procedure) Regulations 1993 (S1 1993/2687). ["The 1993 Regulations"].

In our judgment, when exercising that power, the Industrial Tribunal has to consider the same two questions which arise when considering applications for witness orders by one of the parties, namely can the witness give relevant evidence and is it necessary to issue an order? In this case, Mr Shrives accepts that the 6 witnesses he had intended to call would give relevant evidence and that they would not attend voluntarily. In these circumstances the pre-conditions for issuing witness orders have been made out.

Further, we can understand why the tribunal took this step in this case. Faced with a charge of bias the tribunal was anxious to ensure fairness in the future conduct of the proceedings. It appreciated that in a case of race discrimination, where the applicant establishes discrimination and a difference in race it will then be for the employer to provide an explanation. If none is put forward, or the explanation advanced is deemed inadequate or unsatisfactory, the tribunal may legitimately infer that the discrimination was on racial grounds. King v Great Britain China Centre [1992] ICR 516, 528H - 529B, per Neill LJ. In these circumstances it was, in our judgment, well within the tribunal's discretion to reach the view that written statements from the Appellant's witnesses would be unsatisfactory and that an oral explanation, subject to cross-examination, ought to be obtained.

Accordingly we see no grounds for interfering with the tribunal's decision to issue witness orders.

Before considering the question of bias we should also dispose of a further complaint made by Mr Shrives. He objected to the tribunal's order to continue the hearing without re-calling the Respondent and his 8 witnesses who gave evidence on the afternoon of 15th August for cross-examination. It is said that it would be unfair to compel the Appellant's witnesses to give evidence and be cross-examined whilst denying the Appellant the opportunity to cross-examine the Respondent and his witnesses. We regard that complaint as wholly misconceived. We should make it clear at once that we deprecate the tactic of one party walking out of the tribunal proceedings because he is unhappy with the way things appear to be going. Having done so, in the circumstances of this case, that party has elected to forego the opportunity to cross-examine his opponent's witnesses during the continuing hearing. We make no criticism of the tribunal's decision in this regard; the fact that some witnesses have been cross-examined and others not is an unfortunate consequence of a deliberate act by the party leaving. He must then suffer those consequences.

Pausing here, we would have had no hesitation in dismissing this appeal and whole-heartedly endorsing the steps taken by the tribunal. Indeed, we should record our admiration for the tribunal's attitude, expressed in paragraph 13 of the reasons:

It would be tempting in this difficult situation for the Tribunal to throw up its hands and say that the case had been so badly derailed that it should now be referred to another Tribunal."

They continue:

"Instead we have tried to follow the guidance in Automobile Proprietory Ltd v Healey and, insofar as we are capable of doing so objectively, answer the question posed by the Employment Appeal Tribunal in Peter Simper and Co Ltd v Cooke [1986] IRLR 19; "Would the reasonable observer present at the hearing, not being a party, or associated with a party, to the proceedings but knowing the issues, reasonably gain the impression of bias?" We all agree that the respondent's complaints do not meet that test. For their part, having considered the test, what happened at the hearing and the letter of 30 August, neither lay member has any reservation about the way in which the proceedings had been conducted by the Chairman. Had that been the case, the Chairman would have advised that the application for a re-hearing should be allowed."

It is to the question as to whether that conclusion was a permissible option we must now turn.

BIAS

It is perhaps unfortunate that it is necessary to consider the pejorative words `bias' and `perversity' when applied to the complaints raised against the Industrial Tribunal in this appeal. Stated starkly they strike at the root of fair judicial proceedings. However the shorthand expression `bias' in this context imports more than actual bias . We state firmly that in our view no case of actual bias on the part of this tribunal has been made out.

The test to be applied is helpfully summarised by Lord Goff of Chieveley in R v Gough [1993] 2WLR 724, 737:

"In conclusion I wish to express my understanding of the law as follows. I think it possible and desirable that the same test should be applied in all cases of apparent bias, whether concerned with justices or members of other inferior tribunals, or with jurors or without arbitrators. ... I think it unnecessary, in formulating the appropriate test to require that the court should look at the matter through the eyes of reasonable man, because the court in cases as such as these personifies the reasonable man; in any event the court has first to ascertain the relevant circumstances from the available evidence, knowledge of which would not necessary be available to an observer in court at the relevant time. Finally, for the avoidance of doubt, I prefer to state the test in terms of real danger rather than real likelihood, to ensure that the court is thinking in terms of possibility rather than probability of bias. Accordingly, having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on that part of the relevant member of the tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of the party to the issue under consideration by him; ..."

In relation to Industrial Tribunals we have considered the approach of this appeal in Halford v Sharples [1992] ICR 146, a case in which an Industrial Tribunal's decision that one of its members should not step down on the grounds of apparent bias was overruled on appeal.

In giving the judgment of this tribunal Wood J said at page 170H - 171A:

"It is common ground between both sides that the proper approach to the issue of bias is that justice must not only be done but must be manifestly seen to be done. There must be no appearance of bias. The test is a question of mixed fact and law; would the reasonable and disinterested observer present at the hearing, not being a party or associated with the party to the proceedings, but knowing the issues, reasonably gain the impression of bias? The reasonable and disinterested lay observer has been likened in other aspects of the law "the man on Clapham Omnibus" or the "officious bystander"."

It is clear that an Industrial Tribunal has power to order a re-hearing before a different tribunal under rule 16(1) (the power to give directions) and rule 13(1) (the power to regulate its own procedure) of Schedule 1 to the 1993 Regulations. However, that power should be used sparingly and only for very good reason. Charman v Palmers Scaffolding Ltd [1979] ICR 335. It is not a sufficient ground that one party lacked confidence in the fairness of the proceedings. Automobile Proprietary Ltd v Healey [1979] ICR 809.

Bias, as defined by Lord Goff of Chieveley, may take two forms; interest and conduct. Examples of the former are to be found in Halford v Sharples. Ibid. and Zahedi v McGee [Unreported. EAT/465/94]; of the latter in Peter Simper & Co. Ltd v Cooke [1986] IRLR 19. We are here concerned with the conduct of a member of the tribunal, the Chairman, during the proceedings.

In Cooke the applicant's complaint of unfair dismissal came on for hearing in December 1984. The hearing was adjourned part-heard after the applicant had given her evidence. Before the resumed hearing the employer applied for a re-hearing before a fresh tribunal. The Chairman, without consulting his members, granted the application. However, at a subsequent hearing, the lay members purported to overrule that order by way of review. On appeal the EAT (Browne-Wilkinson J presiding) held that since the Chairman's order was not a "decision" within the meaning of the Industrial Tribunal rules (see now paragraph 2(5) of the 1993 Regulations) the lay members ruling was bad in law, but that the chairman ought to have considered the matter with his lay members and allowed the applicant to be heard. Accordingly both rulings were set aside and the matter was directed to be heard by the same tribunal [1984] ICR6.

At the resumed hearing the employers repeated their application for a re-hearing before a fresh tribunal on the same grounds as before. The tribunal refused. Again the employers appealed to the EAT.

On the second appeal the EAT (Peter Gibson J presiding [1986] IRLR 19) allowed the appeal and remitted the case for rehearing before a fresh tribunal. It held that a combination of the appearance of bias on the part of the Chairman coupled with the delay which had occurred led to the conclusion that the Industrial Tribunal had wrongly exercised its discretion in refusing to order a new hearing. At paragraph 21 of the report Peter Gibson J added the following observations:

"We think it right to stress the highly unusual facts of this case. Save in extraordinary circumstances, cannot be right for a litigant, unhappy with what he believed to be the indications from the Tribunal as to how the case is progressing to apply, in the middle of the case, for a re-hearing before another Tribunal. It is, in our view, undesirable that the Tribunal accused of giving the opinion of bias should be asked to itself to adjudicate on that matter. The dissatisfied litigant should ordinarily await the decision and then, if he thinks it appropriate, he should make his dissatisfaction with the conduct of the case by the tribunal a ground of appeal."

As to the ways in which the appearance of bias may be manifested by conduct of the tribunal during the hearing we identify two principle areas.

First, whilst it is permissible for a tribunal to give a preliminary or tentative indication of view in order to save time or promote agreement it should not become or appear to become a concluded view on matters material to the final decision. Ellis v MOD [1985] ICR 257, 266B-C.

Secondly, whilst it must always be open to the chairman to contain the proceedings within proper bounds and to prevent unnecessary prolixity and repetition, particularly in cross-examination, that power must not be extended to preventing legitimate cross-examination necessary to challenge evidence given on behalf of the opposing party. The absolute right of a party to cross-examine witnesses on relevant matters in civil proceedings was stated by Lord Edmund-Davies in Bushell v Environment Secretary [1981] AC 75 at page 116C thus:

"In the exercise of jurisdiction outside the field of criminal law, the only restrictions on cross-examination are those general and well defined exclusionary rules which govern the admissibility of relevant evidence (as to which reference make conveniently be had to cross on evidence 5th Edition 1979 page 17); beyond those restrictions there is no discretion on the civil side to exclude cross-examination on relevant matters."

An example of excessive judicial intervention during cross-examination leading to a new trial, can be found in Jones v National Coal Board [1957] 2 AER 155. During the course of his judgement in that case Denning LJ emphasised the importance of the judge in a civil trial allowing the advocates to present their case, and to intervene during the evidence only when a point was overlooked or obscure.

In the context of industrial tribunal hearings we would add this. Very often one party is represented by a solicitor or counsel; the other is not, but is obliged to present his own case. That was the position here. The task for an unrepresented party is a daunting one. It is absolutely right in these circumstances that the tribunal, and in particular the chairman, should provide all necessary assistance to the unrepresented party to ensure that he brings out his case. The danger is that in so doing the chairman assumes the role of advocate and departs from his primary duty to act as an independent "umpire". In such circumstances there is a risk that he will cross the line and, in his control of the proceedings, lose sight of the need to preserve the appearance of keeping an open mind by expressing firm views on relevant issues and by unfairly restricting the legitimate development of the other party's case.

That being the law as we understand it, we now consider the complaints of bias made by the Appellant and the response of the tribunal contained in the reasons. Those complaints fall under three headings.

Prejudging issues in the case

The complaints detailed at paragraph 2.1 of the letter are first that the chairman expressed the view that the Respondent's request for staff rotas relating to the day on which a fellow-employee, Clare Barlow, had accused him of sexual harassment was a very reasonable request (refusing to allow the Appellant to cross-examine to show the contrary) on the basis that the Respondent wanted factual information and not a list of names which could be lied about. Second, he described a written warning given to the Respondent for shouting at management as "appalling". Third, he described an incident where the Respondent had picked up a fellow-employee, Angela Carling, and swung her round, and which had been followed by an informal caution, as "what used to just be called innocent horseplay between two young people having fun", thus giving the impression that he did not take seriously a complaint by the employee whose further complaint of sexual harassment eventually led to the Respondent's dismissal, on the Appellant's case. Fourthly, in relation to what the Appellant contended was an error in the length of time for which a written warning would remain on the Respondent's file, the Chairman responded "well it remains to be seen if you can satisfy us how an error of that sort can happen."

The tribunal's response to these complaints appears at paragraphs 7 and 8 of the reasons. No issue is taken with the words used by the Chairman, as recorded by the Appellant. At paragraph 7 it is clear that the Chairman did feel that the respondent had been badly treated in relation to the request for rotas and the warnings which he had received, and that paragraph concludes:

"The respondent [employer] may yet satisfy us that is was either due to a chapter of accidents, carelessness, incompetence or some other reason."

In paragraph 8, referring to the fourth matter set out above, it appears to be accepted that the Chairman did make the remark alleged. The tribunal adds that that was not the only occasion upon which an indication of that nature was given bearing in mind the direction given in King.

Refusal by the Chairman to allow cross-examination on material matters

These complaints are set out at paragraph 2.2 of the letter. The first is that, the Respondent having given in evidence-in-chief his opinion about why he had suffered discrimination at the hands of the Appellant, Mr Shrives sought to cross-examine on that opinion. Without indicating that the tribunal had discounted such opinion evidence the Chairman refused to allow those questions on the grounds that "cross-examination must be confined to issues of fact." When asked by Mr Shrives whether the Respondent's evidence would be restricted in that way, the chairman is said to have replied "you'll just have to put up with it." Secondly, it is said that cross-examination as to the Respondent's credit was stopped in relation to his reasons for not complaining about racial abuse by another employee, Mr Lucas, a matter which had not been raised in his originating application. Thirdly, the Respondents said in evidence that the whole management structure discriminated against him. Question as to that belief were stopped by the Chairman on the grounds that that was the respondents belief and that there was no point in enquiring why. Fourth, attempts to question the Respondent about why he had apparently not complained of racial discrimination to anyone except his manager, Mr Edwards-Cleaves, were stopped on the grounds that the Chairman said " we know what the Respondent's answer is - he will say that the whole management structure discriminated against him." Finally, it is said that the Appellant was prevented from cross-examining the Respondent on his statement that Angela Carling's statement "sounded fabricated" and that he could not trust Mr Chapman, the Appellant's Operations Manager - South.

In response to these complaints, no issue is taken with the detail. In paragraph 9 of the reasons the tribunal state that the chairman was doing no more than follow the guidance of Phillips J, in an unreported case referred to in Automobile Proprietory Ltd v Healey [1979] ICR 809, 811, that a tribunal may, within reasonable limits, cut down the ambit of a hearing to no more than is essential.

The chairman unduly assisted the Respondent in the presentation of his case

These complaints appear at paragraph 2.3 of the letter. The first is that the chairman put words into the Respondent's mouth in a way which would not be permitted of his own counsel. The example given is the question "in fact you may even say you were being painted as an aggressive trouble maker." Secondly, he supplied reasons for the Respondent's assertion that a management rota had been made up. Having done so, the chairman expressed the view that at present all of the evidence supported the respondent's case that the document had been fabricated.

In response to these matters, at paragraph 10 of the reasons, the tribunal does not contest the facts alleged. The chairman accepted that he was indulgent to the Respondent, but not that this extended to an appearance of bias. He agrees that the evidence at that stage gave the appearance, in relation to the second complaint, that the rota had been fabricated, but was there acknowledging that the Appellant had yet to call its witnesses before a concluded view of the matter could be reached.

We have set out the nature of the Appellant's complaints in some detail in order to indicate the flavour of the hearing. We now have the unpalatable task of answering the question, would a reasonable man or disinterested observer present at the hearing, having listened to the observations and exchanges which we have mentioned, and being aware of the issues in the case, gained the impression of bias on the part of the chairman? We have each of us, with considerable reluctance, been driven to the conclusion that that question must be answered in the affirmative. In reaching that conclusion we have taken into account the fact, as appears from paragraph 13 of the reasons set out above, that the lay members of the industrial tribunal had no reservations about the way in which the chairman had conducted the proceedings. Whilst we would have attached great significance to the recollection of the lay members, and indeed the chairman, who is required to keep a note of the evidence, as to any factual dispute as to what was or was not said during the proceedings, that problems does not in fact arise in this case. What does strike us is the danger that the views expressed by the chairman as to the merits of the case at this early stage may well have influenced the lay members views. This, it seems to us, compounds the danger of bias referred to by Lord Goff in the case of Gough.

The next question for us is what is to be done? We remind ourselves of the obiter remarks made by Peter Gibson J in the Cooke case in paragraph 21 of the report. We agree that it is undesirable that the tribunal accused of giving the impression of bias should be required to adjudicate objectively on that matter. However, that is the task which this tribunal set itself in paragraph 13 of the reasons. Was its conclusion that there was no appearance of bias a permissible option based on the objective facts? Again, our answer must, with regret, be in the negative.

It follows that we regard this as one of those wholly exceptional cases where the tribunal's conclusion was, in the sense identified by this tribunal in Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440, perverse.

Accordingly this appeal must be allowed. Having identified an error of law we have decided that the proper course is to remit the whole matter to a fresh tribunal for a re-hearing. That is the order which we make.

Finally we repeat the observation that we made to Mr Tremayne at the close of the appeal hearing. This state of affairs arises through no fault on his part. We have fully taken account of the prejudice which he will suffer as a result of the matter being re-heard. However, in our judgment the justice of the case requires that course.