United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR T C SOMERVILLE (of Counsel) Messrs Restons Linaker & Linaker Solicitors Trinity Chambers 60 High Street Runcorn WA7 1AL
For the Respondents	MR D OUDKERK (of Counsel) Rentokil Initial UK Ltd Legal Dept Garland Road East Grinstead W Sussex RH19 2DR


 


MR JUSTICE CHARLES: This is an appeal by Mrs Sandra Egerton against a decision of an Industrial Tribunal sitting in Liverpool on 7 and 8 October 1997. That Tribunal held that the Appellant was not discriminated against on the ground of her sex and that she was not dismissed by the Respondents.

The case turned on findings as to serious allegations made by Mrs Egerton against a Mr Ashton. These are summarised in paragraphs 27, 28 and 29 of the Extended Reasons given by the Tribunal and they read as follows:

"27. Mrs Egerton made two specific claims of sexual harassment, which she said had occurred in April 1996.

28. She told us that on 8 April, Mr Ashton had handcuffed her and said 'how would you like to bend over and have it up your bum?'

29. On 16 April, she said that Mr Ashton had asked how she would like to fantasise about being in bed with him and Mr Burke."

The case was heard with another case in which another lady made serious allegations of sexual harassment against Mr Ashton. Evidence was given by both ladies first and the Tribunal spent some time examining both ladies, the other lady some 50 minutes and Mrs Egerton some 20 minutes. We have seen the notes of evidence which record those times. The notes of evidence also show that the representatives of the parties asked questions of the witnesses first and in the normal order.

The case went over two days and the notes of evidence also show that on the second day the Tribunal also asked a number of questions of the witnesses, produced on the side of the employers, and in particular that they asked a number of questions of Mr Ashton.

The basis of the appeal is that the Tribunal, through its Chairman, showed apparent bias and thus that the hearing was conducted unfairly. What is relied on in this respect before us is that against the background of the earlier evidence of Mrs Egerton and the other lady and I should add (and I do not think this was disputed) that Mrs Egerton had become upset and distressed at times during the giving of her evidence. Mr Thompson in his affidavit at paragraph 8 says that the following occurred:

"8. I was proceeding to call my Third Witness of Fact [who he does not identify, but we will take it to be Pat Crampton] when the Chairman interrupted and stated 'is there any point in calling any further evidence'. I responded by indicating that the evidence of the other witnesses I was about to call namely two other witnesses plus the return of Miss Hatton [who, I interpose, was the other lady who was making the allegations, thus the other Applicant] would point out the way in which those persons had been treated by Mr Ashton the person who was alleged to have been responsible for the sex discrimination and the treatment of Mrs Egerton. I pointed out that these witnesses would be very pertinent with regard to their comments on the way they had been treated by Mr Ashton and their observations of him and their knowledge of him. I was informed by the Chairman that 'it was a waste of time I could call them if I wanted to but it was clearly a waste of time to do so'."

During the course of the hearing before us a contemporaneous note of Mr Thompson was produced and that contains the words "waste of time" and thereafter "re previous tendencies of Ashton". That account of the exchange between the Chairman and Mr Thompson is not accepted by the Chairman in the comments he has made, or by a Miss Garside who has put in evidence on behalf of the Respondent. I hope I do not do injustice to their accounts by summarising them by saying that the exchange between the Chairman and Mr Thompson was not, to the best of their recollection, anything like as hostile in its terms as Mr Thompson indicates it to be in his affidavit.

At this stage I pause to comment that, taking Mr Thompson's account as it stands, it is to be noted that on his recollection the Chairman indicated that he could call the witnesses if he wanted to and also paragraph 8 of his affidavit, which I have just read, shows that the discussion between him and the Chairman was as to the relevance of evidence, as to the previous conduct or tendencies of Mr Ashton.

There are clearly points of law and admissibility of evidence which might arise in other court or tribunals as to the probative value, or indeed admissibility of such evidence. However, in an Industrial Tribunal the laws of evidence do not apply and such evidence would have been admissible and could have been relied on by the Applicants, or indeed the Respondents, for what it was worth, in respect of all the issues in the case and, in particular perhaps, a central issue as to the credibility of Mrs Egerton and Mr Ashton.

The other point that falls to be made at this stage is that the Tribunal made no order or decision excluding that evidence and, as it is made clear in Mr Thompson's affidavit at paragraph 9, it was his decision not to call that evidence. The reason he gives there is that he took the view (if I can put it in this way) "on the hoof" in the course of the Tribunal hearing which we accept is not the easiest way to take decisions, that it was in his client's best interests not to call the further evidence because, on his reading of the situation, that would only serve to antagonise what he describes as "the Bench and the Chairman in particular".

The relevant law, as to actual and apparent bias and unfairness, is agreed between the parties and can be found in the case of Peter Simper & Co Ltd v Cooke [1986] IRLR 19, when Peter Gibson J, at page 21 paragraph 10, said this:

"... 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, at 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."

We pause there and add that there could be an expression of "a closed mind or a decided mind" in this case before the Tribunal had heard the evidence of the employers and in particular Mr Ashton.

That test in Peter Simper was approved by the Court of Session in Docherty v Strathkelvin District Council [1994] SLT 1064 and the Court of Session observed at page 1066 at paragraph L, that:

"There are no doubt a variety of ways in which tribunal members may address questions to witnesses, and some may no doubt appear more forceful than others. It is, not however, suggested that [the witness] was forced to give answers which were untrue, or that he conceded points against his will."

That comment is of course directed to the questioning of witnesses and not an exchange between the Tribunal and a representative of a witness. But again, if the evidence was to the effect that a representative had been forced against his will to take a particular course in proceedings it may well be, and indeed, it probably would to lead to a conclusion that there was apparent bias or the proceedings had been conducted unfairly.

Finally, prior to the recent Pinochet case, the leading case in the House of Lords on bias is a case called Gough, which is cited in a decision that we have been referred to of this Tribunal comprising His Honour Judge Peter Clerk, Mr Scouller and Mr Jackson, the transcript of the judgment is dated 13 June 1996 and under the heading "Bias", that Tribunal say this:

"On the principle that not only must justice be done but be seen to be done, it is open to a party to complain to the EAT that the Industrial Tribunal in the conduct of the proceedings had given the appearance of bias: Peter Simper & Co Ltd v Cooke [1986] IRLR 19. The test for establishing apparent or potential bias was formulated by Lord Gough of Cheevely in the Queen v Gough [1993] Appeal Cases 646, 670 in this way:

"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 the 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 part of the issue under consideration by him."

That case was primarily cited to us in relation to the decision reached there, concerning the resolution of differences of fact between on the one hand the Chairman and members of the Tribunal and on the other hand parties appearing before the Tribunal. This is a point to which we will return.

However, I propose initially to consider this case on the basis of accepting and I stress, of not making any finding that Mr Thompson's recollection, as set out in his affidavit and read with his contemporaneous note to which I have referred, is the correct one.

On that basis the question that we have to ask ourselves is whether, taking an objective approach, the reasonable observer present at the hearing, who was not a party or associated with a party, but who knew the issues, would have gained the impression of bias or would have thought that the proceedings were being conducted unfairly.

In our judgment, assessed by that test, such an observer would not have concluded that there was any bias being demonstrated by the Tribunal, or that the proceedings were being conducted unfairly. What occurred, perhaps, in fairly vituperative terms was an exchange between the Chairman and Mr Thompson, a legally qualified representative of one of the parties, as to the assistance the Tribunal would gain from evidence that Mr Thompson was going to call, or was proposing to call, on behalf of his client. The Chairman of the Tribunal gave his reason for his view in Mr Thompson's terms that "it would be a waste of time to call that evidence" but the Chairman very properly indicated that, if Mr Thompson wanted to call that evidence he could call it. That is an exchange, even in strong terms, which must take place regularly, or can take place fairly regularly between Judges or Chairmen of Tribunals and parties, who are appearing before them. It cannot be right that a Chairman of a Tribunal should not express a view as to whether or not particular evidence is likely to assist. That flows from the provisions of Rule 9 relating to the conduct of hearings.

We accept that Mr Thompson was clearly put in a difficult position in having to make a speedy decision. However, the decision was his and, in our judgment, judged objectively and taking his account of the exchange as correct, it is not right to conclude that it gives the appearance that the Tribunal were biased or were conducting the proceedings unfairly.

A further point was argued on behalf of the Respondent based upon the decision I have just referred to of Roberts v United Friendly Insurance Plc (Unreported). The Respondent relied on that case to invite this Tribunal to find that the Chairman's recollection of the exchange is the correct one. In that case, under the heading "Policy" the Tribunal say:

"It seems to us that there are here conflicting policy considerations. On the one hand Mr Oldham submits if the factual conflict raised in this appeal cannot be resolved in the usual way by the Appeal Tribunal hearing the contestants and determining the factual issues, it will be unjust if the appellant's account is rejected and the Industrial Tribunal's accepted. The appellant has a basic right to have his case heard by an independent and impartial Tribunal.

He referred to Article 6(1) of the European Convention on Human Rights.

"It is an essential principle of natural justice. Without the opportunity to challenge the Industrial Tribunal members' account, his appeal may fail simply because there is a dispute as to the facts on which he seeks to rely on prosecuting his appeal. Against that is the universal acceptance that it would be a wholly undesirable prospect to require persons who sit in a judicial capacity to appear ultimately in the witness box to justify their conduct of proceedings which took place before then."

And then under the Conclusions, at paragraphs 2, 3 and 4 the Tribunal state as follows:

"2. As a matter of policy we are faced with a choice. In our view the undesirability of compelling members of Industrial Tribunals to give evidence in the way suggested by Mr Oldham, that way is the possible prejudice caused to the Appellant.

3. We do not propose the follow the obiter remarks of Judge Haigh QC in Greenaway v Harrison. We can conceive of no circumstances in which a member of an Industrial Tribunal would be called to give evidence before this Appeal Tribunal in relation to his conduct in the course of the proceedings below.

4. In these circumstances how should we, as a matter of practice, proceed to deal with the conflicting accounts in this case. We shall proceed on the basis that where there is a conflict we shall rely on the account given by the members of the Tribunal insofar as it conflicts with that put forward by the Appellant."

The authorities referred to in that case, very properly, were not gone through at length before us. Here, I express my own view that I am not persuaded that it is right for any court to decide issues of fact on the basis of policy decisions or a policy approach. There is plainly considerable force in the proposition that members of Tribunals should not be troubled by giving evidence. Generally, matters of this type can be resolved on paper. I am aware of authority to the effect that the Chairman's notes of evidence are treated as conclusive if the parties do not agree that there has been an error in them. That, it seems to me deals with a different issue to the resolution of a dispute arising as to the manner in which members of a Tribunal have conducted proceedings. Suffice it to say in this case that it is not necessary for us either to resolve this issue as to the correct approach to the resolution of such a dispute or to make findings because taking the case at its highest, as put on behalf of the Appellant, we do not find that the case of bias or unfairness is made out.

We therefore dismiss this appeal.