United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R SPICER (Of Counsel) Goldstones Solicitors 10 Walter Road Swansea SA1 5NF
For the Respondent	MS M TETHER (Of Counsel) Taylor Joynson Garrett Carmelite 50 Victoria Embankment Blackfriars London EC4Y ODX


 


JUDGE LEVY: At the opening of his appeal on behalf of Mr Davies against a decision of an Industrial Tribunal promulgated on 2 May 1997, Mr Spicer, who appears for him, seeks leave to introduce an additional ground to the Notice of Appeal. The additional ground is in these terms:

"7. The Industrial Tribunal erred in dismissing the Appellant's complaint that he had been unfairly dismissed on grounds of redundancy without considering the question of whether the Respondent had taken reasonable steps to find alternative employment for him."

It seems to be common ground that the question of offers of alternative employment to the Appellant was before the Industrial Tribunal. In the bundle, helpfully prepared by the Respondent's solicitors for us today, in the final page there is a letter dated 4 November 1996, which sets out what the position was as to that. That letter appears to have arisen following Mr Davies' Originating Application dated 13 September 1996 and the Notice of Appearance dated 9 October 1996. Looking at the text of the letter, it appears that a member of the Industrial Tribunal had asked particulars of alternative employment.

In the light of the application which was made, we sought information as to whether this letter played any part in the hearing below. Ms Tether, who appeared below, told us that a witness called by the employer spoke to the accuracy of this letter and this was not disputed. Mr Spicer took instructions of his client, who was in person at the time, and confirmed, as we understand it, that this was the case.

An application for leave to amend can be made to this Tribunal under Rule 2 of the Practice Direction (Employment Appeal Tribunal - Procedure) 29 March 1996. Mr Spicer says his application was made as soon as possible, after his attention had been drawn to the recent decision of this Tribunal in Langston v Cranfield University [1998] IRLR 172. In giving judgment of this Tribunal, at paragraph 12 et seq, Judge Clark considers redundancy dismissals, and, at paragraph 19 et seq, sets out the obligations on the parties in the Industrial Tribunal to raise the issues and at paragraph 26 et seq draws conclusions. Among the conclusions drawn, conclusion 8 is this:

"We would normally expect the industrial tribunal to refer to these three issues on the facts of the particular case in explaining its reasons for concluding that the employer acted reasonably or unreasonably in dismissing the employee by reason of redundancy."

One of the facts is the failure to consider alternative employment on the part of the employer.

It is accepted that the Industrial Tribunal did not introduce a paragraph in its Extended Reasons dealing with this point, and this is why Mr Spicer seeks, as a ground of appeal, to introduce this now. We are satisfied that Judge Clark was looking at the facts of that particular case and was not intending to include any rule of law which required an Industrial Tribunal, on every occasion, to set out everything which was in its mind. Having regard to the fact that there was clear evidence as to the offer of alternative employment and the general tenor of the decision which we have carefully read, we are satisfied that if there had been a small sentence added into this decision, that this ground would have been unappealable. We do not think that Mr Spicer is "nit-picking" in the decision, as this is sometimes explained, but this is a point of law, which in our judgment in the circumstances of this case has no merit, and it would be wrong to allow it to be introduced at this stage.

We have had our attention drawn to the decision in Sateer v East Yorkshire Health Authority [1995] IRLR 348, but as Mr Spicer has pointed out, this deals with appeals out of time covered by Rule 3, rather than an amendment to a Notice of Appeal. However, the principle stated by Mr Justice Mummery, then President, is of some help to us.

In our discretion, it seems to us undesirable to allow an extra ground of appeal to be introduced at a late stage, when there is really no merit in it. In the circumstances we will not allow this application to amend the Notice of Appeal out of time.

By an Originating Application dated 13 September 1996 Mr Eric Davies complained to an Industrial Tribunal that he had been unfairly dismissed. The reason was there had been an unfair selection for redundancy. The Appearance was entered by his employer, the Trinity House Lighthouse Services on 9 October 1996.

The matter came up for hearing after interlocutory applications (to which we will return) to a Tribunal held at Cardiff on 7, 8, 9 and 10 April 1997. The decision of the Tribunal was promulgated on 2 May 1997. The unanimous decision of the Tribunal was that Mr Davies was dismissed by reason of redundancy and his selection was not unfair. From that decision Mr Davies appealed by a Notice of Appeal dated 9 June 1997. It was apparent from his appeal that the grounds of it were he had not had a fair hearing below: certain documents were sought from the Industrial Tribunal prior to 14 November 1997. On that date a panel of this Tribunal ordered (the "EAT November Order") that Mr Davies' appeal be allowed to proceed to a full hearing on four questions on each of which bias was alleged:

1. The question of adjournment

2. The question of discovery

3. The problems in relation to the bundles of documents

4. The refusal to allow the cross-examination of Mr Brown

The Tribunal directed that the Chairman be asked to produce his Notes of Evidence in relation to these four questions and ordered that "evidence" of three persons present at the hearing be made by Affidavit, if Mr Davies wishes to rely on it.

Mr Spicer appeared on behalf of Mr Davies then and he appears for him today. It is those four points which have come before us today and we will, when we come to deal with them, deal with them under the heading used in the EAT November Order.

On the test for bias, Mr Spicer referred us to a decision of Docherty v Strathkelvin District Council Second Division SLT 1994 at page 1064. The only passage to which he took us was on page 1066, where the Court referred to a passage in the decision of Peter Gibson J, as he then was, in Peter Simper & Co Ltd v Cooke [1986] IRLR 19:

"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?"

The decision which Ms Tether took us to on behalf of the employers, was that of the House of Lords in Regina v Gough [1993] AC page 646. The particular passage to which our attention was drawn is at page 670, where Lord Goff in a speech with which all others agreed, said this at page 670 on bias:

"..... I think it possible, and desirable, that the same test should be applicable in all cases of apparent bias, whether concerned with justices or members of other inferior tribunals, ..... . Likewise I consider that, ..... the same test should be applied by a judge to whose attention the possibility of bias ..... has been drawn ......, and by the Court of Appeal when it considers such a question on appeal. Furthermore, I think it unnecessary, in formulating the appropriate test, to require that the court should look at the matter through the eyes of a reasonable man, because the court in cases such as these personifies the reasonable man; and in any event the court has first to ascertain the relevant circumstances from the available evidence, knowledge of which would not necessarily 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 the 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 a party to the issue under consideration by him;....."

Although the Peter Simper decision was not cited in the Goff decision and the Goff decision was not cited in the Docherty decision, we have paid regard to what Mr Justice Peter Gibson said, as well as to what Lord Goff said, in looking at the problems before us today.

The first of the matters upon which bias was alleged was on adjournment. The position appears to have been this: at an Interlocutory Hearing on 19 November 1996 the employer had difficulties having witnesses available on the proposed date of the full hearing and applied for an adjournment - the learned Chairman said words to the effect that without witnesses present, they might well lose the case. In those circumstances he granted the employer the adjournment sought so that the hearing could take place when their witnesses could be present. That decision, in our view, was very proper.

When the matter came up for hearing on 7 April 1997, Mr Davies, then in person, informed the Tribunal that his main supporting witness was not able to be present because of sickness. Having looked at all the documents presented to us in the course of today, we understand that having heard Mr Davies' application, the Chairman indicated that he would not adjourn the case there and then but when the time came for the absent witness to give evidence - anticipated to be some day or so later - he would re-visit the application for an adjournment.

When that time came, the witness statement of the witness was considered. Objection was taken by Ms Tether, for the employer, to a couple of sentences towards the end of his witness statement; she had no objection to the rest of the statement being tendered in evidence.

In those circumstances, the evidence of the witness in question was included as evidence of Mr Davies, subject to exclusion of a couple of sentences. The learned Chairman made a comment to the effect that of course there had been no cross-examination of him and the weight to be attached to that statement was a matter for the Tribunal. As no objection had been taken by the employer to the witnesses' statement as modified being evidence given at the hearing, it seems to us that the Tribunal was under a duty to, and we have no doubt that it did pay attention to, that statement.

Applying the test propounded in Gough, we are satisfied that the Chairman showed no bias in refusing to grant an adjournment because a witness of Mr Davies was not present when that witnesses' evidence was permitted to become evidence in the case.

The second question raised was the question of discovery. We have considered each of the issues raised by Mr Spicer on Mr Davies' behalf on the appeal with great care and of the four this is the one which has given us the most difficulty. The question of discovery exercised the minds of the Industrial Tribunal prior to the hearing. After having had correspondence from Mr Davies, on 12 March 1997 the Industrial Tribunal made an Order (which is at page 27 of the bundle which we have used today). The essential parts of the Order read:

"The tribunal HEREBY ORDERS that on or before 25 March 1997 upon reasonable notice, the respondent do produce at the respondents address (as above) the documents listed below, and that the applicant's representative be at liberty to inspect the same to take copies thereof. Alternatively this order may be complied with by supplying photocopies of the documents requested.

a) Item 87, i e qualifications of all HPTO candidates.

b) 93, 94, 95 annual reports and HPTO written interview assessments of control and communications candidates with page titles to show documents referred to. (versions with names blanked out)"

That Order followed an Order that had earlier been made by the Tribunal on 11 February in these terms:

"The Tribunal HEREBY ORDERS that on or before 3 March 1996 upon reasonable notice, the respondent do produce at: Trinity House Lighthouse Service, Trinity House, Tower Hill, London EC3N 4DH the documents listed below, and that the applicant's be at liberty to inspect the same to take copies thereof.

(a) Front cover page, only, not contents, of annual reports of all candidates attending HPTO promotion interview held on 20th to 24th May 1996 at Trinity House, Tower Hill, for years 93, 94, 95, 96 to show names of all candidates and their reporting officers for those years.

(b) The "Cushley" documents - Annual Reports for 93, 94 and 95, in their complete format."

The reason for the change between the two Orders was after the first Order had been made, the employer had written to the Regional Secretary appealing against the first Order and the modification was made. It is not altogether clear to us that the correspondence between the Tribunal and the parties was always copied to each other. It is also not clear to us that the amended Order of the Tribunal was fully complied with. Indeed, on the balance of probabilities, in the light of the evidence filed, it was not. It seems that the learned Chairman who heard the hearing with his colleagues was of opinion that there had been a technical defect in making the discovery order but that nothing turned on this when the merits of the case put forward by each side was considered.

So far as there had been a technical defect on which nothing turned, we are satisfied, having looked at all the circumstances about discovery, that there was no bias in the Chairman making the Order which he did on discovery. There was a great deal of discovery made by the employer. It is not apparent to us that the documents not disclosed in what the Chairman thought was a minor breach, would have made any difference at all to the result of the hearing. In those circumstances we cannot see that there was bias in the refusal to do more than the Chairman did on discovery. We should add that there is evidence from Mr Davies that he complained that there had been failure of the employers to give discovery in accordance with the Order of the Industrial Tribunal. There have been Affidavits in support of the allegations of bias on his behalf, none of which support that allegation. Without objection from Mr Spicer we have considered the evidence of the new trainee solicitor, Mr Miller, who was present throughout the hearing at the Industrial Tribunal. He took careful notes of the proceedings. We have considered those Notes. They contain nothing to support any application of complaint made of failure to disclose on the first day of the hearing, or indeed thereafter. It may well be that at some stage something was said of it but in our judgment the way the learned Chairman dealt with the issue does not disclose bias in accordance with the test in Gough. Accordingly the appeal fails on that point.

The third matter of which complaint is made is under the heading "The problems in relation to the bundles of documents". What is apparent is that there were bundles of documents prepared by both parties before the hearing. Shortly before the hearing, the employer's solicitors, if we may say so, very sensibly prepared what they thought was a comprehensive bundle with an index for the use of the parties in the Court. Mr Miller's Affidavit sworn on 7 May 1998 deals with the position in this way: we would say before setting out the paragraphs of the Affidavit that we asked Mr Spicer if he objected to us looking at this comparatively late Affidavit or if he sought time to reply to it. He did not object to us looking at it and he said that he did not wish to reply to it. The relevant paragraphs of the Affidavit say this:

"8. In the weeks leading up to the Industrial Tribunal hearing, Mr Davies had sent to this firm a considerable number of documents accompanied on each occasion with an index or updated index. The order of the documents did not follow any logical sequence and only the first page of each document was numbered. Accordingly, in the week prior to the hearing, we collated all the relevant documents in one bundle, in a logical order, with each page numbered individually. A letter was sent to Mr Davies by ..... [the Respondent's solicitors] on 3 April 1997 [the Thursday before the hearing] enclosing a copy of that bundle. Additional documents were subsequently paginated and sent to Mr Davies by letter dated 4 April 1997 for addition to his bundle. Both these letters together with the index of ..... [the Respondent's solicitors were exhibited].

9. In order to assist Mr Davies cross refer to documents in our bundle, I annotated his index of documents with handwritten cross references indicating at which page number his documents appeared in our bundle, ..... [that cross reference was also exhibited].

10. On the morning of the first day of the Tribunal hearing on 7 April Mr Davies presented a folder containing copies of all his documents. The documents were contained in a number of paper folders and in the same mixed order as Mr Davies had indexed them. The issue of which bundle to use was discussed at the commencement of the hearing and it was decided that the bundles supplied by ..... [the Respondent's solicitor] should be used. I handed a copy of the annotated index to Mr Davies and subsequently to the Tribunal members. There were a small number of documents which had not been included in the bundle. Mr Davies did raise this issue. On those occasions the Chairman gave Mr Davies time to locate those documents in his own bundle."

In his Affidavit sworn on 7 July 1997 Mr Davies says this of the bundle:

"5. ..... Essentially, my complaint was that the Respondent's bundle had no index whilst mine was fully indexed .... . I had agreed with the Respondents Barrister to use the "Common bundle" providing my index was cross-referenced to it. At the start of hearing a number of my documents were not cross referenced (namely .....).

6. In addition, the photocopies in the Respondent's bundle were not clear. In particular, pages 350 and 351 which were the testimony for my witness, Mr Snadden.

7. During the proceedings, problems occurred with the Respondent's bundle by confusion of the letter "Z" with the number "2". The various problems and delays encountered with the Respondent's bundle caused me to eventually abandon that bundle when giving my own witness statement. [By that we understood him to mean his own evidence.] It is my submission that these problems contributed to the poor impression the Chairman stated that Tribunal had of me in paragraph 9 of the written reasons."

Mr Hugh Sims Llewellyn one of the persons swearing an Affidavit to support Mr Davies' appeal, in paragraph 4 of his Affidavit, said this:

"Before beginning his cross-examination Mr Davies attempted to explain something which had caught his attention in the re-arranged document bundles.

The Chairman, Mr James, told Mr Davies in direct terms that there was nothing to explain and instructed him to proceed with his questioning of the witness."

Mr Richard Davies, who also swore an Affidavit to support Mr Davies' appeal and who, we understand, is a brother of Mr Davies, said nothing in relation to this. Mr Marvelley, who also swore an Affidavit, said this in paragraph 2 of his Affidavit:

" Mr Davies, on his turn, said to the Chairman of the Tribunal that he wanted to "Explain" of difficulties he was having with the bundle of evidence presented by the employer's side.

The Chairman replied that "There was nothing to explain" and that "He (Mr Davies) should move on as there was a lot of ground to cover before the end of the case"."

We are satisfied that any remarks which were made by the Chairman as to Mr Davies in the Extended Reasons, in no way reflected upon the complaints which he had made as to the preparation of the bundling of the documents or his ability to cope with them. We are satisfied that during the course of the hearing, as was said in other evidence which we have seen today, that the Chairman gave every latitude to Mr Davies as a litigant in person dealing with difficulties not only experienced by litigants in persons but also by experienced advocates in handling bundles of documents some of which go to very many pages, some of which are not easy to comprehend and when they have not been presented in the most sensible way. We are satisfied that in his handling of Mr Davies when he had difficulties either with the bundle or with a series of documents, on the test in Gough, the Chairman showed no bias.

The final point raised is that of cross-examination. This seems to have occurred in the following circumstances. Mr Davies was attempting to cross-examine a witness presented by the employer and sought to ask questions as to their qualifications. What, apparently, according to his Affidavit, Mr Davies had in mind, is that in the documents prepared by the employers showing the interviews leading to the redundancy exercise which had taken place, there was error. So far as we gather from the documents before us, what was in his mind was never articulated to the Tribunal. The Chairman remarked that the qualifications of witnesses did not appear to him to be relevant and ordered Mr Davies to continue his cross-examination on other points.

It is quite clear from the documents we have been shown, that the qualifications of all the witnesses were on other documents which were before the Tribunal. In these circumstances the refusal to allow Mr Davies to ask questions on qualifications, is one, in the circumstances which we can understand. We certainly do not consider that the refusal to allow questions on this matter in accordance with the test enunciated in Gough, could in any way be considered to be biased.

It is quite clear to us that what the Tribunal had to consider were the questions of whether there had been a fair redundancy exercise before Mr Davies was found to be redundant. There was one part of the exercise about which the Tribunal was critical, but having voiced criticism on that point, they were satisfied that although the procedure adopted was not satisfactory, it did not vitiate the employer's proposal. The Tribunal saw and made an appraisal of the witness about whom criticism was made. The Members came to a clear conclusion that Mr Davies was made redundant for reasons they articulated in the decision. He was a man who had great academic qualifications who had given great service to the employers for many years but there was a redundancy situation arising and in paragraph 8 of the Extended Reasons they ask "Why then was he unsuccessful?" in the tests which were made. The answer they give in the same paragraph is this:

"..... What the interview committee was looking for in the candidates was management potential and that they failed to find in the applicant."

It is always sad when a man who given many good years to a company is made redundant, particularly when he is in his early fifties. But decisions cannot be made on sympathy. An Industrial Tribunal have to properly appraise whether a redundancy exercise has been properly carried out. In our judgement that exercise was performed by the Industrial Tribunal in the four-day hearing in Cardiff in April 1997 without any bias whatsoever, either in regard to the four matters upon which we have heard argument today or in any other way. In these circumstances we dismiss this appeal.

We thank Counsel for their assistance today.

This is not a case which is so out of the ordinary in this Tribunal that we feel an order for costs should be made. Often Appellants feel very strongly about having lost. There is a sieve to stop fruitless appeals going forward. This appeal passed that sieve. In the circumstances we think that the application for costs is not one which we should allow. We have been considerably helped by the evidence which has been filed since the Preliminary Hearing.