United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS E NORMAN (of Counsel) Southall & Co Solicitors 503 Coventry Road Small Heath Birmingham B10 0LN
For the Respondents	MR D LOCK (of Counsel) Eyre & Co Solicitors 1041 - 1049 Stratford Road Hall Green Parade Birmingham B28 8AS


 


JUDGE COLIN SMITH QC: This is an appeal from a decision of an Industrial Tribunal sitting at Birmingham on 7th December 1995 when the tribunal decided that the appellant, Mr Beattie, had been fairly dismissed and dismissed his application for unfair dismissal against the respondent employers, Parkstead Ltd.

The appeal is entirely based on an allegation of bias and serious procedural misconduct and irregularities on the part of the Chairman of the Industrial Tribunal, which the Chairman and the respondent employers strenuously deny.

Looking at the matter first and foremost on the face of the Industrial Tribunal decision, the facts as found by the Industrial Tribunal are as straightforward as they are unfortunate. Mr Beattie and Mr McErlean were very long-standing friends. Mr Beattie is married to McErlean's sister. The two men went into partnership in 1980. which partnership was incorporated in 1986, when Mr Markham joined them as a co-director. It was obviously essential that all three men should get on together and have trust and confidence in one another.

In 1991 Mr Beattie had an affair with Mrs McErlean. The Industrial Tribunal held in paragraph 3 of its decision that it was only in January 1995 that Mr McErlean discovered that an adulterous relationship had taken place between Mr Beattie and his wife. They held that this discovery by Mr McErlean caused a complete breakdown in his relationship with Mr Beattie. They held that Mr Markham tried to act as a mediator but that eventually this proved impossible so he had to decide what to do. They held that Mr Markham took into account Mr Beattie's behaviour, the precarious state of the business, and the wishes of the other employees who wanted to work with Mr McErlean, they found as a fact that Mr Markham decided reluctantly he had no option but to dismiss Mr Beattie, which he did, with effect from 28th March 1995.

The Industrial Tribunal held that the reason for the dismissal was some other substantial reason, namely a breakdown of trust and confidence, and that the decision was reasonable applying section 57(3) of the 1978 Act, and so they dismissed the complaint. On the face of it this was plainly a wholly unexceptionable decision.

We turn to consider the issues of the appeal.

We should say first of all that it is plain from a reading of the affidavits and the Chairman's comments, that there is a fundamental conflict between the appellant and his solicitors on the one hand, and the respondent's solicitors and counsel and the Chairman on the other hand, as to what occurred at the hearing.

Putting it in summary form only, according to the appellant's solicitors account, the Chairman did not allow the appellant's counsel properly to present the appellant's case, interrupted him and the witnesses unduly when they gave evidence or made submissions, failed to allow him to state what his case was with regard to the dismissal, would not allow the appellant to develop his case, namely that his brief affair with Mrs McErlean was common knowledge by February 1993 when he had spoken to Mr McErlean, and that the Chairman would not allow anything to be developed in evidence other than between January and March 1995. The allegation is made that the tribunal, as expressed through the Chairman, had had what appeared objectively to be a closed mind and was biased in that way against the appellant's case. It goes without saying that if that were the position in the judgment of this Employment Appeal Tribunal as to how the proceedings had been conducted by the tribunal and by the Chairman, then we would have to consider very carefully indeed whether there was a real appearance of bias to a disinterested observer, and we would of course not hesitate, in suitable circumstances, so to hold.

We repeat that the substance of the appellant's appeal is that the conduct of the Chairman viewed objectively was such to make it impossible for the appellant to put his case to the Industrial Tribunal, despite the fact he had solicitor and counsel. It is submitted that the Chairman dogmatically insisted that the only relevant period was January to March 1995, and would not entertain any evidence as to the issue as to whether Mr McErlean in fact knew all about the affair with his wife by January 1993, or certainly by 1994. He would not allow the appellant's counsel to present evidence and argument to the effect that the true reason for the dismissal was not that relied upon by the respondents, but was perhaps jealously of another business being carried on by Mr Beattie, or because of complaints made by Mr Beattie as to the way the respondents' business was being run, or the fact that Mr Beattie unlike the other directors, did not want the business to be sold to a third party.

In a very recent affidavit Mr Morris, the appellant's solicitor, has said that such was the pressure exerted by the Chairman with his interventions, that Mr Morris and Counsel took a decision not to call their witnesses which they had available as to the crucial issue as to when Mr McErlean knew of the affair.

We wish to say at this stage that this account of the actions and conduct of the Chairman is not in any way accepted by the solicitor or counsel for the respondent as appears from the respondent's solicitors' affidavit. In particular it is not accepted that at the beginning of the hearing counsel for the appellant ever made it clear to anybody that his client's case was that there were reasons for the dismissal other than the affair.

The respondent maintain in a nutshell that the Chairman's interventions and observations were all properly made with a view to identifying and narrowing the issues and to avoid repetitious questions being put by counsel. The Chairman has made his own comments and strongly denies that he behaved as is alleged against him.

In that state of play, we consider that the evidential burden must lie upon the appellant to establish on the balance of probabilities that his account of what took place is correct.

In arriving at our conclusions of this appeal, we believe that it is first our duty to make findings of fact as to what did in fact did happen during this hearing. We repeat that the burden must be on the appellant to establish on the balance of probabilities that the Chairman had acted improperly. We wish to make clear that we have considered the first affidavit of Mr Morris, dated 11th April 1996, the affidavit of Mr Kesterton dated 26th July 1996. Mr Kesterton's notes of evidence, Mr Lock, the respondent's counsel's notes of evidence, the Chairman's comments dated 26th July 1996, the Chairman's Notes of Evidence of the same date, and, with leave, a very recent second affidavit of Mr Morris - presented to us on the day of the hearing, and sworn as recently as 2nd January 1997. We should observe that much of that affidavit, in our judgment, contains argumentative and contentious material. We have also considered Mr Morris's notes of evidence. Mr Kenning's notes of evidence, and the witness statements annexed by the solicitors to their affidavits. It is apparent that this amounts, altogether, to a very considerable amount of material which we have considered.

We consider that we should paint with a relatively broad brush in arriving at our conclusions. Ultimately it must be a matter of impression for us with our respective experiences, as to whether the appellant has satisfied us upon the first issue.

We consider unanimously that the appellant has wholly failed to discharge the burden upon him, on the balance of probabilities, to establish the necessary factual foundation required, in order to require us to go on to consider whether an objective observer present at these proceedings might have found that there was a real likelihood of bias on the part of the Chairman. We have arrived at that decision principally but not exclusively as result of the following factors:

a) In our judgment there is nothing in the various notes of the proceedings to support the appellants contention. In our judgment the notes taken as a whole read as though the hearing was quite unremarkable in the way in which the procedure was followed.

b) There is no record of any formal protest, or indeed any protest whatsoever, being made by the appellant's counsel as to the alleged behaviour of the Chairman. Making all allowances for the different approach of advocates to any given situation, we would all have expected counsel of any experience to have registered a serious protest had the position been as the appellant claims that it was. We find it very surprising and remarkable that no such protest was made.

c) The notes of evidence appear to us to indicate that the appellant's case was in fact put to Mr McErlean and to Mr Markham with regard to the date of discovery of the affair with Mrs McErlean, and also to Mr Markham at any rate with regard to the suggestion that the affair and the consequent breakdown was not the true reason for the dismissal.

Next, we find as a fact that during the course of the opening no submission was ever made by the appellant's counsel, either to effect that (a) the reason given by Mr Beattie in his IT1 for the dismissal was incorrect, or (b) that other reasons were to be advanced.

We make that finding principally because (a) there is no reference in any of the notes recorded by the respondent's solicitor, the respondent's counsel, the appellant's solicitor or the appellant's counsel, or the Chairman, to any such point being taken. And (b) we find that such a point being taken is quite inconsistent with the appellant's IT1 and would amount to a radical departure from his case pleaded in that document.

Next, we find as a fact that no statement was ever made by the Chairman that the evidence should be limited to the period between January and March 1995. Here again this is principally because, first, there is no note anywhere of any such limitation in the notes of evidence. And secondly, that is not, in our judgment, what happened. The notes record that the issues with regard to January 1993 and April 1994 were being ventilated to the various witnesses. That is to say, amongst other things, the development of Mr Beattie's separate business and the matter of the possible sale of the respondent's sale to Mr Hepworth, were all developed in evidence.

Next, we find we have to conclude that in a number of respects Mr Morris's affidavits are unreliable and inaccurate. We can illustrate this initially by reference to paragraph 16 and 17 of the first affidavit, and paragraph 19 of the second affidavit. In paragraph 16 and 17 of the first affidavit the assertion is there made that when a witness, Mr Chick, called by the appellant gave evidence, the Chairman appeared disinterested when Mr Chick gave evidence as to when Mr Chick and Mr McErlean first became aware of the affair, i.e., much earlier than January 1995. But it is clear from the notes of evidence, that Mr Chick in fact gave no such evidence at all. Mr Chick gave evidence to the effect that it was only in January 1995 that the affair was discovered by Mr McErlean, i.e., in support of the respondent's case, and he was not cross-examined. It is also plain, in our judgment, from the notes we have seen, that Mr Chick's evidence was not interrupted at all by the Chairman. So in consequence the statements made relating to Mr Chick in paragraph 16 of Mr Morris's first affidavit cannot be correct.

Indeed, it is to be noted that he puts the matter quite differently in paragraph 19 of his second affidavit. We do not propose to read out paragraph 19 of the second affidavit. We must say that we found that the combination of those paragraphs in those affidavits to be an unhelpful way of approaching these particularly difficult and sensitive issues. We regret to say that we have concluded that neither paragraph 16 and 17 in Mr Morris's first affidavit, nor paragraph 19 in his second affidavit, should have found their way into Mr Morris's affidavits at all.

In addition, we noted that in paragraph 13 of Mr Morris's first affidavit, there was a swingeing allegation that the Chairman had refused to see the relevance of alternative reasons suggested by the appellant and his counsel as being the real reasons for the dismissal. But, in our judgment, it is apparent from the notes that the "so-called" real reasons were never put to Mr McErlean or Mr Markham in cross-examination by the appellant's counsel. Thus no question was ever put along the lines "The real reason you dismissed Mr Beattie was over the matter of the book-keeping, or over the matter of the suggested sale to Mr Hepworth." In our judgment, a proper and fair consideration of the notes of evidence completely undermines the assertion made in paragraph 13 of the Mr Morris's first affidavit.

In fact we are satisfied, on the balance of probabilities, that the actual interruptions by the Chairman were few in number and not, on any objective test indicative of any bias. By way of example there was an interruption to ascertain the relevance of Mr Hepworth when Mr Hepworth was put to Mr McErlean in cross-examination. In our judgment it is noteworthy that no answer has been recorded in the notes as having been given by the appellant's counsel to that relevant enquiry on the part of the Chairman as we find it to be. The position was that the Chairman was simply left in the dark at that stage as to the relevance of Mr Hepworth.

We have considered the other "so-called" biased interruptions and can find no evidence in support of the allegations made in paragraph 13 of Mr Morris's affidavit.

In addition we are driven to conclude that, having considered carefully the notes of evidence and the submissions made to us, there is no substance in the assertion that the appellant's evidence was interrupted when he was giving evidence-in-chief, or that anything was said or done by the Chairman which should have caused the appellant or his advisers to gain the impression that they were not allowed to present their case.

In those circumstance and for those reasons as well as from our overall consideration of all the material placed in front of us, we must hold that the respondent's solicitor's account and his and the respondent's counsel's notes together with the Chairman's notes and comments, are a reliable and substantially accurate record of what took place at this particular Industrial Tribunal hearing. Accordingly, in our judgment, the appellant does not surmount the first hurdle in relation to this appeal, and for those reasons the appeal must be dismissed.

The application for costs made by the respondents is refused. Legal Aid taxation for the appellant granted.