United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR W BIRTLES (of Counsel) Messrs Abson Hall Loring Solicitors 36 Park Green Macclesfield Cheshire SK11 7NE


 


JUDGE COLIN SMITH QC: This is an application by the employee teacher before the Employment Tribunal, Miss Shairon Rodgers, for leave to proceed to a full hearing of an appeal against the decision of an Employment Tribunal held at Liverpool over four days in February and March 1997, of which extended reasons were sent to the parties on 25th June 1997 whereby the Employment Tribunal held that the appellant's claims against the respondent School, the Governors and the Head of the School, on the grounds of sex discrimination and unfair dismissal failed and were dismissed.

The grounds of appeal are somewhat unusual, although not unprecedented by any manner of means in our experience, in that they are expressly limited to one allegation and one allegation only, namely an allegation of apparent bias against the Chairman of the Employment Tribunal arising out of his conduct of the hearing and certain rulings he made. Although it was not, in our judgment, completely clear from the Notice of Appeal and the skeleton argument, it has been made quite clear before us in argument that the appellant seeks leave to appeal on the grounds of apparent bias not of actual bias on the part of the Chairman.

It was suggested in the written submission that when such a ground is put forward we really had no choice, so to speak, other than to allow such a ground of appeal to go through to a full hearing, since it was argued that the issue of apparent bias can only be determined at a full hearing with full notes of evidence being ordered both from the Chairman and the lay members with whom he sat. We should say straightaway that that submission which to some extent appeared from the papers but which has certainly not been the way in which Mr Birtles has put the matter today, we would reject entirely. In our judgment a ground of appeal based upon the apparent bias of an Employment Tribunal falls to be scrutinised and evaluated at the preliminary stage in exactly the same way as any other proposed ground of appeal in order to judge whether the same gives rise to an arguable case for consideration by the Employment Appeal Tribunal on a full hearing. That of course is the test. There only has to be an arguable ground shown in order for us to allow the matter to go through to a full hearing.

We have reminded ourselves of the relevant legal principles which are not really in dispute. We do not need to say anything about actual bias since it is now quite clear that that is not put forward. With regard to apparent bias we have been rightly referred, very helpfully in the skeleton argument, to the leading authority of R v Gough [1993] AC 646 HL and also to the case of Peter Simper and Co. Ltd. v Cooke [1986] IRLR 19 EAT. The crucial issue, as appears from those authorities, is whether it is arguable that there appears to be "a real danger of bias" from the conduct and rulings of the Chairman. We remind ourselves that this has to be tested from the standpoint of the intelligent, reasonable and disinterested onlooker who would be following the proceedings as they took place before the Employment Tribunal, rather than from the standpoint of the party making the allegation of apparent bias, or, indeed, her advisers. We also remind ourselves that members of an Employment Tribunal, and particularly and principally the Chairman, have very important judicial responsibilities with regard to the efficient, fair, and regular management and conduct of the proceedings before them. In our experience the Chairman and the members may have to make difficult and important decisions with regard not only to the admissibility of evidence but also with regard to seeking to uphold the proper conduct and behaviour of the advocates appearing before them with a view to trying to ensure that a fair and just hearing is given to both sides. At times Chairmen and members of Employment Tribunals will have to exercise their experience, judgment and collective wisdom in deciding whether it is or is not necessary to restrain the behaviour of the advocates in front of them in all the circumstances of the case which they are trying. We have borne all those matters in mind. It follows from what we have said that there must be a very wide discretion on the part of the Chairman of an Employment Tribunal to conduct the proceedings with the help of his experienced colleagues in the manner in which he or she sees fit in all the circumstances.

It is against the background that we have had to consider the argument that has been ably presented to us by Mr Birtles. We have taken into account the skeleton argument and the notice of appeal, the appellant's affidavit and the exhibits thereto, the Chairman's comments in his various letters and the detailed notes from the members, Mrs Prescott and Mr Evans. In addition, importantly in our judgment to an extent, we have considered the decision of the Employment Tribunal itself. Although we accept and proceed on the basis that the wording of the decision itself is a separate matter entirely from the allegations that are sought to be made, nevertheless we do note the following:

(1) the case was clearly a very difficult and sensitive case and was very hard fought by the advocates on each side.

(2) The decision itself appears to bear all the hallmarks of a carefully ordered and well-reasoned decision, correctly setting out and applying relevant legal principles in what is a notoriously difficult area and, on the face of the decision, making clear and comprehensive findings of fact arising from the evidence before the Employment Tribunal and resolving, where necessary, the conflicts of evidence which arose.

(3) The decision is moderately and temperately worded and there is nothing whatsoever within the four corners of the written decision to indicate to us in any way that there was any apparent bias on the part of the Chairman.

It is, in our judgment, necessary for us to say in a few words what the effect of the decision was. The Employment Tribunal held that the time-tabling of the appellant's duties as a teacher upon her return to the School in May 1996 after the birth of her daughter was not a breach of contract and had been done for good reason by the Head Teacher of the School and amounted to nothing unusual. The Employment Tribunal found that the appellant had not been constructively dismissed when she resigned at the end of summer term. The Employment Tribunal went on to hold that the School had behaved with tolerance in a situation calculated to cause it embarrassment; and that the appellant's case based upon sex discrimination was misconceived. Because of some of the matters contained in the very detailed grounds of appeal, not all of which have been pursued in the oral argument, we should mention that:

(1) The Employment Tribunal found as a fact that the difficulties over time-tabling caused by the appellant's absence were made worse by the resignation of another English teacher, Miss Alison Smith, as a result of illness.

(2) [This point is of some significance]. The appellant had, after her resignation from the School, become involved in a number of newspaper articles and media appearances, the contents of which were, on the findings of the Employment Tribunal, calculated to cause the maximum of embarrassment to the School and the Employment Tribunal concluded that the appellant's actions had made matters worse in the degree of embarrassment caused to the School.

Those are not our findings, they are references to the findings of the Employment Tribunal who of course heard the evidence in the case.

It is in that context that we turn to consider the grounds of appeal. We do not propose to deal with all of the matters raised before us, because of the way in which the matter has been skilfully addressed to us, on the basis of really the strongest points, which we will of course deal with.

It was suggested in the documentation by way of notice of appeal that the Alison Smith letter should not have been excluded. That matter has not been strongly emphasised in any way before us. We should simply say that in our judgment the Employment Tribunal were amply justified in excluding this letter. It was arguably irrelevant and prejudicial and there was no opportunity to cross-examine Miss Smith due to her absence abroad. We consider that that decision was well within the discretion of the Employment Tribunal in deciding what evidence they would or would not admit. There is nothing to indicate, in our judgment, any apparent bias in the exclusion of that letter, nor in the reference to Alison Smith in the decision which was directed to the fact of her resignation and not the cause of it.

Next, and this is a point which is strenuously placed before us, is the criticism of the decision to allow production of the material relating to the media coverage and to allow cross-examination on that material and to refuse to exclude a bundle of documents relating to that material, which we are prepared to accept and do accept arrived at the last minute at the beginning of the hearing and upon which the Employment Tribunal had to rule. We accept that this was a difficult decision for the Employment Tribunal, but in our judgment it was one which on the face of the record was carefully and conscientiously taken. The Employment Tribunal retired to consider the matter of the admissibility of this material, debated it, bore in mind no doubt that they are masters of their own procedure particularly under the Rule 9 of the relevant rules as to what evidence they do or do not admit in front of them, and took the view that the material did have some relevance to the appellant's motive of bringing proceedings against the School and also to her overall credibility. That decision no doubt could have gone either way. We accept the points made by Mr Birtles that it could have been said that that material was too remote from the issues, that is was of very limited probative effect, that it only arose after the event and therefore should not have been admitted. We see the force of that submission. But, in our judgment, none of that begins to demonstrate that there was any apparent bias on the part of the Chairman or the members of the tribunal. Of course we focus our attention on the Chairman. In our judgment the simple fact is that the reception of this material into evidence was a matter for the Employment Tribunal exercising its discretion to decide and the fact that they decided to admit it does not indicate any apparent bias in the way in which we have attempted to define that expression earlier in our judgment. In arriving at that conclusion we have certainly taken into account the fact that the Chairman has recorded that at about 15:56 (at the end of the first day) the union representative, Mr Bentley, who was representing the appellant, did make the objection that the decision to admit the material was biased. We think it right to refer to what the Chairman says about that in his comments(at page 58 of our bundle):

"B (i.e. Mr Bentley) lodges objection - (says) biased in the way you have reached your conclusions". Mr Bentley asked that that objection be recorded; I agreed that it should be, and did so."

However in our judgment the fact that Mr Bentley saw fit to describe the decision as biased does not throw any light on whether there was in fact, or could be said to have been, any appearance of bias in such a decision being reached in the circumstances which we have described. Furthermore, it is to be noted that there has been no follow-up from Mr Bentley whatsoever. There is no affidavit from Mr Bentley, nor is there any letter from Mr Bentley. There is no indication from Mr Bentley himself that he considered the Chairman's conduct to be in any way indicative of apparent bias. Thus that is a dog which has not barked on this particular application.

There is then a second best point, so to speak, as Mr Birtles, encouraged by the Chairman today put it in his address to us, and that relates to the failure of the Chairman of the Tribunal, as he puts it, to restrain repeated alleged unprofessional conduct on the part of the member of the Bar then appearing for the respondents. We have to assume, bearing in mind we have not heard of course at all from the Counsel concerned, for the purposes of today's hearing that this advocate would not only cross-examine very rigorously, as of course he was fully entitled to do, but would also then comment when he received answers he did not agree with or did not like by making such remarks as "nonsense" repeatedly. He was pulled up by the Chairman, told to behave himself, as we understand it, but persisted and the Chairman did not then make any very firm ruling in relation to it, simply suggesting to him that he might use some other expression. Here again, we regard it as unfortunate that an advocate should behave in that way, but we also bear in mind that such behaviour does create very great difficulties for Chairmen of Employment Tribunals and the members, and we have no doubt on the material before us that the Chairman and the members took the view at times that it would be wiser and lead to a more efficient disposal to ignore the infighting that was going on between advocates. We understand and sympathise with the fact that a party who is being cross-examined and in respect of whom an advocate is making disparaging remarks may take the view that matters are not going well for her if the Chairman does not make a very firm ruling and bring the matter to a halt. However, in our judgment, at the end of the day it must be a matter for the overall discretion of the Chairman and the members as to how to deal with such a situation. We do not consider it arguable that the fact that the Chairman did not give an emphatic ruling in relation to this and did not pull Counsel up even more sharply, is indicative of apparent bias on his part and it would not be so regarded by someone sitting at the back of the tribunal room.

There are other matters which we have carefully considered. It was entirely reasonable and in line with common practice to require the appellant to isolate herself over the short adjournment while she was in the middle of giving evidence and not to accept an undertaking that she would not speak to her advisers. That is a matter of judgment for the Employment Tribunal. They may have a practice in relation to it. Such an order is in our experience commonplace and no way indicative of apparent bias.

There was a suggestion in the papers before us that it may have been the Chairman who in some way initiated during submissions a suggestion that the appellant could have been dismissed for misconduct by the School. This matter has rightly not been put in the forefront of the appellant's submissions today. Nor could it have been, in our judgment, in the light of the very careful notes made by the members, particularly by Mrs Prescott in her very helpful and detailed comments in relation to this particular matter, particularly at paragraph 12. In our judgment, looking at those comments and the comments of the Chairman himself and indeed the comments of Mr Evans the other member, it is really quite clear that the Chairman was intervening (to the extent that he did intervene) for the purpose of clarifying the alternative way in which the argument was being put at that stage by Counsel for the School. We must reject that way of putting the matter.

With regard to whether the Chairman acted wrongly in some way in allowing the respondents' representative to address the Employment Tribunal after the appellant's representative had, so to speak, had the last word, here again, in our judgment, there is no hard and fast rule. We agree that normally it is not right to give somebody a second bite of the cherry, but, in our judgment, to the extent that the Chairman allowed the advocate to address the Tribunal again, that is well within the management and control of proceedings, and in no way indicative of apparent bias. Particularly as there can be no doubt that the appellant's representative was given the fullest opportunity to address the Employment Tribunal on her behalf.

There was a suggestion about costs and whether it was indicative of apparent bias to allow the respondents' Counsel to instigate a submission being made about costs. In our judgment, it was perfectly sensible to allow the parties to make submissions on costs conditional upon the determination of the issues on liability and to refer to the media material in that regard, since clearly that material must have had some bearing on the issues as to costs. Such a procedure is commonplace and may save costs. We must regard it as somewhat fanciful to suggest that the following of that practice by the Chairman and the members of the tribunal could conceivably be any indication of apparent bias on their part.

We take into account that it was argued before us that there is a cumulative effect of all these matters and we have carefully borne that consideration in mind. At the end of the day, despite the able argument presented to us, we have concluded that there is no arguable ground here for an appeal on the basis of apparent bias and therefore this application must be dismissed.

Legal Aid taxation is granted.