United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A BUTLER (of Counsel) Messrs Dalton Barrett Solicitors 50 Britton Street London EC1M 5NA
For the Respondents	MR S COTTIL (of Counsel) Messrs Eversheds Senator House 85 Queen Victoria Street London EC4V 4JL


 


JUDGE LEVY QC: On 7th January 1993 Mr Gershom Williams commenced proceedings by making an application to an Industrial Tribunal claiming unfair dismissal. His IT1 showed that his employment as a lecturer in Business Studies and Administration Department of the respondent, London Borough of Haringey (as it then was) began on 10th October 1988 and was to end on 30th September 1993. He said that he had been selected for redundancy and he complained that the dismissal was unfair. An appearance was entered by the respondent on 7th January 1993. There was a hearing before an Industrial Tribunal sitting at London (North) on 6th, 7th and 8th July, and on 28th and 29th November 1994. The decision of the Industrial Tribunal which was sent to the parties on 19th December 1994, was that Mr Williams had not been unfairly dismissed. Extended reasons were given in a reserved judgment. The applicant appealed from that decision and it is necessary in the context of the appeal which we have today to set out some early paragraphs and the final paragraph of the extended reasons.

"1 The Applicant commenced his employment as a lecturer from 10 September 1988 until 30 September 1993. He was dismissed by reason of redundancy. he was employed as a lecturer in the Business Studies and Computing section in the Faculty of Professional Business and Service Education. He was paid up until 30 September 1993 having been given one year's paid leave after having been declared redundant.

2 The Applicant complained that his dismissal by reason of redundancy was unfair. His appeal against the decision to make him redundant was unsuccessful.

3 The broad basis of his complaint was that (1) there was an unfair and inconsistent method and policies used in the selection for candidates for redundancy; (2) the appeal panel which heard the appeal against redundancy was composed of individuals who were known prior to the appeal to be negative towards his case; (3) there was a lack of equal opportunities and victimisation; (4) the interests and wishes of students were not properly consulted; (5) no proper concern was given to the ethnic composition of students at the College. He requested reinstatement.

4 At the Tribunal hearing, the Applicant did not pursue a complaint of racial discrimination, and maintained that his only complaint before the Tribunal was that of unfair dismissal. He was insistent that the College of North East London, where he was employed at the termination of his employment, was determined to get rid of him because he had made certain complaints. It was maintained, on his behalf, that the whole exercise of making redundancies was designed in order to get rid of him. Other people were also made redundant but this did not mean that his proposition was not valid.

...

21 At 3.10 pm on the fifth day of the hearing, the Applicant's evidence was concluded. Mr Mayers stated that he had not expected the Applicant's evidence to be concluded so speedily and he had another witness that he wished to call. The Tribunal had no prior indication that another witness was to be called and, on questioning, it was determined that the witness was to be a Mr Waite, who had ceased employment with the College prior to the decision to dismiss the Applicant. On reflection, Mr Mayers decided not to call this witness."

There was a Notice of Appeal lodged on 30th January 1995 and there was preliminary ex parte hearing before an Employment Appeal Tribunal on 19th January 1996. At that hearing the tribunal ordered that the appeal be adjourned upon terms that if paragraph 1(e) of the grounds of appeal was to be pursued then an affidavit be served on the Employment Appeal Tribunal by Mr Mayers (Counsel for Mr Williams at the Industrial Tribunal) within 21 days in relation to that grounds of appeal which was to be amended as necessary. The then grounds of appeal indicated that allegations of bias by the tribunal was being raised. An amended grounds of appeal was later proposed and there was a further preliminary ex parte hearing before an Employment Appeal Tribunal on 17th November 1996 when the tribunal, which was then differently constituted, gave further directions which provided for the issue of bias to be determined by the Employment Appeal Tribunal in advance of other matters raised in the Notice of Appeal. The further directions provided for the appropriate part of the Chairman's notes to be sought, for the lodging and serving of affidavit evidence as necessary, deponents to be available for cross-examination if required and for comments on the affidavit evidence from the Industrial Tribunal. This appeal solely is on the issue of bias raised by the appellant.

We have now the benefit of the Notes of Evidence of the afternoon in question of the Industrial Tribunal. We have had an affidavit from Mr Mayers on which he has been cross-examined. We have an affidavit from Mr Anthony John Stanton sworn on 19th December 1996. He is the Head of Human Resources of the respondents and was present throughout the hearing before the Industrial Tribunal. We have had the comments on the affidavits from the Chairman and the lay members of the Industrial Tribunal. We have also seen an attendance note of the solicitors for the respondents who were present at the hearing on the last day, which deals with the matters in question (albeit that the attendance note was dictated the day after).

We will first refer to the Chairman's Notes of Evidence. They show that on 29th November 1994 the afternoon sitting commenced 1.30, and the respondent's case was closed shortly before 2.07. Then Mr Williams gave his evidence. In the course of her Notes of Evidence, the learned Chairman noted a couple of times that Mr Williams was rambling. His cross-examination commenced at 2.45. At what was apparently the end of his cross-examination, there is this passage:

"Exhibit R1, documents 322 and 129. I quibble with one. The whole system was incorrect. I was set in motion to arrive at a result.

I am saying that all the documentation and all the evidence we have heard was specifically designed to get rid of me.

Other people were made redundant. They accepted it. Methods were inculcated to get rid of me."

The notes continue, with a timing of 3.10 p.m.:

"There were no questions from the Tribunal.

There was no re-examination.

Mr Mayers closed his case and did not wish to call any further evidence.

At 3.15 pm the Tribunal heard submissions from the representatives.

These are notes of evidence complied by me from notes taken on the afternoon of the hearing on 29 November 1994, such notes having contained abbreviations."

The solicitors attendance note - the other contemporary document of the afternoon - reads as follows:

"The hearing recommenced on Monday 28th November and finished at approximately 3.30 on Tuesday 29th November.

On Monday Anthony Stanton was called and on Tuesday Dorothy Jones and Angela Greatley were called. The only witness called for Mr. Williams was himself. The hearing finished fairly abruptly in that during Counsel's cross-examination of Mr. Williams, the Chair interjected asking Mr. Williams whether he felt that all of the procedures used by the College were in fact a sham designed to remove him despite the fact that other members of staff were equally made redundant. Mr. Williams replied yes.

Following this the Chair asked our Counsel whether he wished to carry on with the cross-examination.

Conferring with Council and Mr. Stanton and upon Counsel's clear recommendation, it was agreed that this appeared to be a very clear indication from the Chair in our favour and that cross examination should end there.

At this point Mr. Williams indicated that he wished to call 2 witnesses but neither were present. His Counsel agreed that his case should be closed.

Summing up took place immediately. Our Counsel gave the following summing up: ..."

The grounds of appeal alleging bias were slightly further amended this morning. They now read as follows:

"6 a. The Industrial Tribunal wrongly exercised its discretion in failing to accede to the Appellant's application for an adjournment; alternatively, in refusing to adjourn the hearing it failed to exercise its discretion judicially or at all;

b. there was a breach of the rules of natural justice in the refusal by the Tribunal to hear the Appellant's case fully; alternatively in the willingness of the Tribunal to make findings on matters which the Appellant could not have had an opportunity properly to deal;

c. that the tribunal gave the appearance of bias in that:

i. it wrongly and prematurely concluded, whether from the Appellant's contention that the redundancy procedures were contrived to remove him or otherwise, that there was no merit in any aspect of his case;

ii it assumed apparently without any objection from the Respondent or any opportunity for proper submissions, that the evidence of one of the Appellant's intended witnesses would have no bearing on the facts at issue;

iii it failed to acknowledge or take any account of the Appellant's communication (which it received on 13th January 1994) to the effect that he intended to call between 8 and 10 witnesses."

c. iii to a document completed by Mr Williams and received by the Industrial Tribunal on 13th January 1994, a very early stage in the proceedings. The relevant part reads::

"How many witnesses due you expect to call? 8-10

Do you think the hearing will last more than one day YES

if yes - how many days and why 2 - Because of the seriousness of the case."

It would seem to us that that particular document could have had no bearing on the issues which were before the Industrial Tribunal on the fifth day of the hearing when there was Counsel in charge of the case who knew what witnesses he wanted and was able to call. However that may be, the first authority on which Mr Butler, in conspicuously able submissions has made on behalf of the Mr Williams, has referred us on bias is Peter Simper & Co Ltd v Cooke [1986] IRLR 19, where Peter Gibson J said at paragraph 10 of the judgment of the Employment Appeal Tribunal said:

"We take it to be axiomatic that justice before a Tribunal must only be done but also be manifestly seen to be done. That applies as much in our view to a Tribunal such as the Industrial Tribunal as it does to a formal court of law. Not only must there by no bias on the part of the Tribunal but also the Tribunal must not give the appearance of bias. Where there is an allegation of bias based on the conduct of one or more members of a Tribunal at a hearing, the test is, in our view, an objective one: 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. That impression may be given by the appearance of a closed mind against a party on a matter which calls for decision by the Tribunal when that party has not yet presented all his evidence relevant to the point or had the opportunity of addressing the Tribunal on that evidence."

That is a very proper starting point to this appeal. Mr Butler has also referred us to a sentence in the case of R v Sussex Justices Ex parte McCarthy [1924] 1 KB 256, at page 259:

"Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice."

In his helpful skeleton argument Mr Butler, which was prepared before the cross-examination of witnesses which we have had today, says at paragraph 5:

"5 It is common ground that:

a. the Respondent's evidence in the Industrial Tribunal lasted in excess of 4½ days, while the Appellant was in the witness box for just over 1hr;

b. the Appellant's evidence was finished at 3.10 pm on the 5th day;

c. that no adjournment was granted to enable the Appellant to call further witnesses.

6 The areas of dispute between the accounts are as follows:

a. was the cross-examination stopped by the Chairman?

b. was pressure put on the Appellant's Counsel to close his case?

c. was an adjournment sought by the Appellant (and therefore refused by the tribunal) to enable him to call further witnesses?"

Having heard the evidence that we have heard today, we are satisfied that the cross-examination was stopped by the Chairman in this sense: the questions which within the Notes of Evidence appear to come from Counsel in cross-examination did in fact come from a question put by the Chairman. Having heard from the appellant:

"Exhibit R1, documents 322 and 129. I quibble with one. The whole system was incorrect. I was set in motion to arrive at a result.

I am saying that all the documentation and all the evidence we have heard was specifically designed to get rid of me.

Other people were made redundant. They accepted it. Methods were inculcated to get rid of me."

(We remind ourselves that the appellant was one of several made redundant by the respondents in the exercise), she asked Counsel for the respondents whether he wanted to cross-examine further. A wink often being as good as a nod, and the Counsel ceased cross-examination. It was not stopped by the Chairman, but Counsel thought it unnecessary to continue.

Was pressure put on the appellant's Counsel to close his case? We are satisfied that no pressure improper or otherwise was put on Counsel to close his case. What we find happened is this: there was interplay between Mr Mayers and the tribunal as to what further evidence he intended to call. Because there is no full transcript of what happened, it is not clear what questions were asked and what answers were given. Mr Mayers, who gave his evidence without the assistance of any contemporary papers, thought he had five witness statements at the time, one of which was from the appellant, one of which was from Mr Waite, and three others from persons he did not name. Mr Waite he had sent home on the day in question because he thought it was likely that the appellant would be cross-examined on his evidence and his evidence would therefore take the rest of the sitting time on 29th November. But matters went much more quickly. He thought that questions as to his other witnesses were not raised. We are satisfied that the question of his proposed other witnesses and the relevance of their evidence was raised, albeit we are not clear as to whether the tribunal were told they were just character witnesses. We are satisfied that it was proper for the learned Chairman to ask questions as to what other witnesses there were to be and it was proper for her to make appropriate remarks on the answers to the questions which were given. We are satisfied, however, that after there had been an interchange between the Chairman, Mr Mayers took a decision not to seek an adjournment. He had seen his client in the witness box, he had the opportunity to examine his client fully, cross-examination was stopped and he did not seek to re-examine. After dealing with the Chairman's questions, knowing what material evidence he could have advanced, he decided to close his case.

Was an adjournment sought by the Appellant (and therefore refused by the tribunal) to enable him to call further witnesses? Having seen Mr Mayers and having considered his evidence, and having heard from Mr Stanton who was also present, we are quite clear that there was no adjournment sought by Mr Mayers. We are also clear having seen the Notes of Evidence that if an adjournment had been sought, that would have been noted by the experienced Chairman in her notes. The Chairman might well in retrospect have been wise to have adjourned that day to enable Mr Mayers to consider whether he wished to call other witnesses, albeit that he did not press for an adjournment, but it is very easy to look at things with hindsight. Looking at the material as it was at the time, no adjournment was sought and in those circumstances we do not think it is fair to criticise the tribunal of bias because it refused to accede to an application which was not made. Mr Mayers is a barrister of great experience. He was formally a Head of Chambers in Lincoln's Inn. He told us he had made about 150 appearances before an Industrial Tribunal. He is now over 70 and has retired from the Bar. A man with such experience is well able to look after the interests of clients such as the appellant. We are quite sure that if he had felt that an adjournment was necessary, he would have made an application and we think very likely it would have been given. We are quite satisfied that no pressure was put on him to close his case.

We also heard from Mr Stanton, who was an honest and honourable witness. He gave his evidence from recollection, and from the reminder provided by the respondents' solicitor's attendance note. However, he said it was an afternoon which he remembered well because it was extraordinary experience in the light of what happened that day. His qualities were shown in answer to a question as to whether character witnesses were mentioned to the Industrial Tribunal. He said that if Mr Mayers said on oath that no such mention was made that day, he would accept that it was not. It is a very proper approach of a witness who is giving evidence under oath. Although he was in one sense not an objective witness - he was a witness for the respondents - we think we can safely accept his evidence. He said he did not understand the subtleties of the interchanges between Counsel and the Chairman but that he did not feel that any bias was shown by the tribunal and that Mr Mayers was not put under any pressure.

Returning to the test posed by Peter Gibson J and his colleagues, in Peter Simper on the questions raised in this appeal we are satisfied there was neither bias nor the impression of bias as submitted by Mr Butler or otherwise. There is, to us, no suspicion that there was any improper interference with the course of justice.

What happened on that day was the tribunal put a very proper question to the appellant, made a comment to Counsel which she was entitled to make, and thereafter Mr Mayers took decisions which he was entitled to make, not as a result of any closed mind or otherwise of the tribunal.

Whenever an allegation is made in an appeal from an Industrial Tribunal, it is very carefully examined by the Employment Appeal Tribunal, for it is essential that justice should not only be done but be seen to be done. We are satisfied, having carefully considered the evidence which we have heard and the able submissions of Mr Butler that on this aspect of the appeal, the appellant fails.

We will hear from Mr Butler and Mr Cottil what other directions if any should now be given so that the remaining matters in the Notice of Appeal can come on for hearing at an appropriate time.

Order: Appeal on ground 6 of the Amended Grounds of Appeal dismissed.

Legal Aid taxation granted to the appellant.