United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 144_95_0105

Appeal No. EAT/144/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 1 May 1995

Before

HIS HONOUR JUDGE J HULL QC

MR A C BLYGHTON

MRS M E SUNDERLAND JP

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CRUELTY FREE MANUFACTURING LTD          APPELLANTS

MRS R A LOVE          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellants MR SEAN JONES

(Of Counsel)

Messrs Foot & Bowden

70/76 North Hill

Plymouth

Devon

PL4 8HH


 


JUDGE J HULL QC: Mrs Love, who is the Respondent to this appeal, was a Production Controller at the material time. She was employed by the Appellants here today, Cruelty Free Manufacturing Ltd, which is a small company in Paignton, Devon. They manufacture cosmetics. Her employment had begun in 1989.

Mr George, who effectively is the other protagonist, joined the company in January 1994 and on 18 April he was appointed Production Director. That apparently involved his taking over certain of Mrs Love's responsibilities and there were various discussions between

Mr George and Mrs Love. He was apparently endeavouring to explain to her that he wanted her to take over a certain responsibility for production. She was to be responsible for production and also quality control. The responsibility for actually saying which orders were to be filled and in what order, would go elsewhere. She, apparently, was objecting to that. According to him, she stormed out of the discussion, she left in a way which showed complete dissent from what he was saying and her employment was ended then.

She complained of unfair dismissal and the Company, through Mr George, said that it was a case of redundancy, and that matter came before the Industrial Tribunal sitting at Plymouth, under the chairmanship of Mr Rice with two industrial members, on 6 September 1994.

At the hearing matters did not go entirely smoothly because the Tribunal found that Mr George, who appeared for the company, persisted in saying that it was a case of redundancy and it appeared more and more to the Tribunal that that was not so, and that the true case which was being made was one of misconduct and that it could not be a redundancy situation. If it was a redundancy situation, then on any view Mrs Love had been treated unfairly and had not been properly consulted. But it appeared to the Tribunal that it was not a case of redundancy at all.

Mr George, of course, was carrying out at least two duties in relation to the case. He was the only witness who gave evidence for the Company, and he was also acting as advocate. His complaints relate not to the subsequent decision, but to the way in which it was reached, which he says shows bias on the part of the Chairman. He sets his allegations out in the Notice of Appeal. He says:

"4. At an early stage of the Appellant's evidence the Chairman objected that he was unable to take a note as Mr George was speaking too quickly. Despite Mr George's attempts to assist, the Chairman interrupted ever more frequently complaining about his inability to take a note and at one point shook his pen angrily at Mr George. Whilst appreciating the need of the Chairman to make a note, Mr George found that the frequency of the interruptions and their vehemence made it impossible for him to present his case clearly. Mr George's recollection is that the Chairman interrupted every 2 minutes".

If the Chairman found that every two minutes he was simply unable to take the note, which it was his duty to take, of what Mr George was saying, then it is hardly surprising if those were the intervals at which he interrupted. It is essential, of course, that the Chairman should take a proper note of the evidence. Different Chairmen have different ideas about whether there should be almost a verbatim note or whether a précis is sufficient, but it was essential that he should do that duty and he was not only entitled, but bound, to tell Mr George if he was speaking so fast that he could not take the necessary note. Indeed, it is a very remarkable thing if a man in the position of a manager, a director indeed, as Mr George was, was unable to understand that and to modify the way in which he was giving his evidence so that a note could be taken, and it does suggest to one's mind a remarkable attitude by Mr George if he could not appreciate the extent to which he was embarrassing and disadvantaging the Tribunal by not observing the Chairman's request.

It is a very common thing, which one has seen in court on many occasions, for the Chairman or the Judge to hold up his pen and ask the witness please to watch his pen. It seems, on the face of it, that that is an entirely misconceived complaint, but there it is.

Then he says that he went on to give an account of a meeting and the Chairman said "you cannot argue that this is not redundancy" and made a number of other comments. He says that at one stage the Chairman made an offensive comment to him: "I can't get through your thick head, can I?". And he says that he "was subjected to constant and hostile

interruption from the Chairman". He also says that when he was giving evidence he sought assistance from a colleague. That, of course, was quite improper, but he complained that "The Chairman objected to Mr George seeking advice on the basis that Mr George was under oath". How that can be a proper objection one does not know, a proper allegation of bias, it simply will not work, it seems to us.

Then he says that he was pressed, concerning a statement which was produced, to say whether he accepted that those parts of the statement which he did not object to, were accurate; and he says he was pressed so hard that he reluctantly, eventually, agreed to what the Chairman was pressing upon him.

Right at the end of the case, when he was addressing the Tribunal, he said he wanted an adjournment and he asked whether he had the right to a short adjournment and the Chairman, he says, "became furiously angry and shouted: "No! You do not have that right". Certainly, the answer was perfectly correct and the question of granting an adjournment must be a matter for the discretion of the Industrial Tribunal and not a matter of right for either party. But as to the question whether the Chairman was angry we have to look to see what is said.

Having seen this Notice of Appeal, the Chairman has written a note to us, of which of course the Appellants have seen a copy, and not only he but his members, says the Chairman, take a very different view about what happened. The reality of the situation was that

Mr George did, indeed, find it very hard to understand how the Tribunal had difficulty in seeing that it could be a case of redundancy and when they tried to explain they found it very difficult for Mr George to understand. They say that they preferred the account of the matter given by the Applicant, Mrs Love, and they say that so far as the allegations of offensive and overbearing behaviour are concerned, they are not true.

One of the members had written apparently to the Chairman, having seen what is alleged:

"Mr Rice the Chairman constantly endeavoured to assist Mr George in presenting his case, but Mr George did not appear to be listening. It became necessary for the Chairman to ask Mr George questions whilst he was giving evidence, in order to obtain a clear understanding, of what had happened, or on what date, or place etc. The answers given by Mr George were often not related to the question asked, and it was necessary for the Chairman to interrupt, and point out the object of the question.

There was a point when Mr George was answering a question very fast, that the Chairman had to advise him to watch his pen, because he wanted to record the answers. This did occur again and Mr Rice held up his pen and said, `Mr George please watch my pen when answering a question'".

And then the Chairman adds:

"I have sent the members a copy of this note; they are in entire agreement with it".

He has then made comments on individual paragraphs. I do not propose to go through it. He does have to say that in certain respects Mr George is simply wrong in his recollection and he says that Mr George has put a gloss on what happened and he described Mr George as "posturing". That is particularly relied on by Mr Jones in saying that this is all evidence of bias by the Tribunal. The Chairman says, with regard to seeking advice from a colleague, as Mr George did when he was in the middle of giving his evidence, he did tell him that it was to be his answer and not that of his colleague. He says that they gave a full opportunity to both sides to be heard. Mr George put forward his case without any obstruction being put in his way and cross-examined Mrs Love at considerable length. He (the Chairman) did not shout angrily at Mr George; he spoke to him firmly.

When one comes to look at the decision, as of course we have done, it appears to us (as indeed Mr Jones very fairly concedes) in many ways to be a model decision, short and to the point. The Tribunal were quite unable to find that there was any redundancy and if it had been a redundancy, it could not possibly be said that it had been dealt with fairly. The concluding point really has to be that where the evidence of the parties differed, they preferred the evidence of Mrs Love to that of Mr George: that was a view which they had to form.

It is objected by Mr Jones that they referred to Mr George having great difficulty in listening to and understanding what was said to him. That was an observation which they made having seen Mr George, and of course it is elementary that one of the advantages which Industrial Tribunals have, like other courts at first instance, is that they do see the protagonists, or should see the protagonists, and can therefore form some view themselves about how the protagonists probably behaved on the (often) rather fraught occasion when the dismissal took place, or the events which led up to the dismissal.

Having concluded that redundancy was not made out, having been told repeatedly by Mr George that it was not a case of misconduct and having found that there was no misconduct, they concluded that the dismissal was unfair.

We have not been asked to go into all the facts and we cannot do so. What we do have to do is to say whether it is made out here that there is at any rate a prima facie case of bias on the part of the Tribunal. Was the conduct of the Chairman, and it is only the Chairman whose conduct is complained of, such that a person who was present would say to themselves, "We think there is here a real danger of bias, a real likelihood or real possibility of bias. This Chairman appears not to be approaching the matter fairly". We are entitled, and bound, to take into account not only what is said in the grounds of appeal, but also what is said by the Chairman himself and the members.

The first comment to make is that the Chairman, of course, does not sit alone, he had two industrial members there whose duty was to share the decision with him, and there is little doubt, in our minds, that if the members had thought that matters were not being conducted fairly or that Mr George was being confused by what was being said to him, they would have done their best to help and if necessary would have asked the Chairman not to interrupt in a way which was embarrassing Mr George.

But it appears to us, merely from looking at the grounds of appeal, that here Mr George is complaining of matters which are self-evidently only the attempts of the Chairman to get Mr George to see the points in the case, and to understand the way in which the Tribunal had to try it, which included of course taking a careful note of the evidence and endeavouring to make him understand how it appeared to the Tribunal, so that he could deal with it.

If courts of law and tribunals did not behave in that way, then there really would be no need for oral hearings at all and it would be better simply to have written submissions. The whole idea of an oral hearing is to have some sort of meeting of minds, some sort of dialogue, albeit perhaps a rather strange dialogue in which the court on the whole should keep silent and listen carefully to what is being said. But it is under a duty, which is generally recognised, to explain to parties what the difficulties of the court or tribunal are in acceding to the submissions which are being made and to try to help the litigant to see the matter in the way that they do or, of course, to change the Tribunal's mind by making submissions directed to what may be mistakes in the mind of the Tribunal itself. And it is self-evident from the grounds of appeal that that is exactly what this Chairman was trying to do. The Tribunal was not minded to find in favour of the company on the basis which Mr George was putting before it and was trying to explain that to Mr George, so that he could deal with it, so that he could assist them, if indeed the merits of the case allowed him to do so.

We can find here, having looked at it as carefully as we can, no evidence whatever of behaviour which shows bias by the Chairman. It appears to us that Mr George was in all probability one of those people who finds it, perhaps owing to the pressure of appearing in front of a Tribunal, very likely for the first time in his life, difficult to look at the matter objectively and sensibly and do his case full justice and the Tribunal was obviously endeavouring to help him.

Contrary to what has been said to us by Mr Jones, it is regrettably common in our experience for people to say, when that happens, that they are not being treated fairly. But far from that the essence of fairness is that matters should be explained to them and if the Tribunal found Mr George obtuse (that may be a somewhat offensive word) or "posturing" and so forth, it was the endeavour of the Chairman, and necessarily the endeavour, to get him to (so to speak) "come off his high horse" for a moment and hear how the Tribunal were looking at it; and in that way to try and ensure the trial was as fair as possible.

It is of course, for a lay person, very difficult to bear being interrupted or to have comments made on their case which seem unfavourable, but we cannot find that this is a case which comes anywhere near showing bias on the part of the Tribunal or the Chairman of the Tribunal, and in those circumstances, no point of law is raised.

This case is in our list under our Practice Direction so that we can see whether there is a fairly arguable point of law and in our belief, having heard all that has been said by Mr Jones and having read all that is with our papers, there is no fairly arguable point of law here. We are, of course, a Tribunal of law and can only consider points of law and therefore we have to dismiss this appeal at this stage.