United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR LEVISON (Solicitor) Appearing under the Employment Law Appeal Advice Scheme


 


JUDGE PETER CLARK: The appellant, Mrs Cunningham, was employed by the respondent Council in its Housing Department as an Allocation Officer from 9th November 1992 until 17th June 1996, when she resigned from the employment.

Following her resignation she presented a complaint of unfair constructive dismissal and unlawful sex discrimination to the Industrial Tribunal on 26th February 1996.

That complaint came before an Industrial Tribunal sitting at Brighton chaired by Mr I A Edwards over six days in December 1996 and January 1997. For the reasons promulgated in full on 25th February 1997 the tribunal unanimously dismissed both complaints. It is clear from the reasons that the tribunal considered each allegation raised by the appellant in support of her complaints, weighed the evidence which it heard from both sides, preferring the account given on behalf of the respondent where it conflicted with that given on behalf of the appellant, and rejected the appellant's case in every material particular.

Now there is an appeal. No specific misdirection in law is identified. The complaint is one of bias and misbehaviour on the part of the members of the Industrial Tribunal and in particular the Chairman, and irrationality in its decision. In short, it is contended that the appellant did not get a fair hearing.

In support of that case the appellant has lodged an affidavit dated 18th June 1997; the Chairman and lay members of the tribunal have responded in writing; the appellant has prepared a detailed skeleton argument which we have considered, together with the oral submissions made on her behalf today by Mr Levison who appears under the ELAAS pro bono scheme.

Bias

We remind ourselves that it is not necessary for the appellant to show actual bias on the part of the tribunal, it is sufficient if there is an appearance of bias to an objective observer. Peter Simper & Co Ltd v Cooke [1986] IRLR 19.

One particular point which Mr Levison urges on us is the allegation, made by the appellant and supported in a written statement from her representative below, Ms Ashley, that the Chairman fell asleep during the course of the proceedings. That allegation is not accepted by him and specifically denied by his fellow members. However, the short answer to that particular allegation is that unless it is complained of at the time, that is during the tribunal hearing, it will not be entertained on appeal. Red Bank Manufacturing Co Ltd v Meadows [1992] ICR 204.

That is only one of a number of complaints made by the appellant. So far as the tribunal's written reasons, running to some 15 pages, are concerned, Mr Levison has identified three findings by way of example which he says misrepresent or fail to deal properly with, the evidence before the tribunal.

Looking at the matter over all, he submits, that this appeal should be allowed through to a full hearing. There is sufficient material to mount an arguable case that this appellant did not receive a fair hearing at the hands of this Industrial Tribunal.

We have looked at the case as a whole and we each of us find ourselves quite unable to accede to that submission. It is not the function of this appeal tribunal, whose jurisdiction is limited to correcting errors of law, to embark upon a minute examination of the Industrial Tribunal's detailed findings of fact. Nor are we anxious to encourage the increasingly fashionable tendency for disappointed litigants before Industrial Tribunals to blame the conduct of the tribunal where it is in fact performing its function of deciding factual issues where these arise.

In our judgment this appeal raises no arguable point of law and must be dismissed at this stage.