United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Messrs Bevan Ashford Solicitors 1 Chancery Lane London WC2A 1LF
For the Respondents	MR R BEDFORD Head of Legal Department Watford Borough Council Town Hall Watford Herts WD1 3EX


 


MR JUSTICE CHARLES: The parties to this appeal are Mr Mohammad Usman (the Applicant and Appellant) and Watford Borough Council (the Respondent). The decision appealed against is a decision of the Industrial Tribunal London (North) made following a four day hearing which took place on the 10th to the 13th of November 1997. The Extended Reasons of the Tribunal which run to 36 paragraphs are dated 3 December 1997. The cases before the Tribunal were numbered 22629 / 96 and 2204045 / 97. The first was issued on 9 April 1996, and the second on 31 July 1997.

Mr Usman is a tenancy relations officer with the Respondent, Watford Borough Council. He joined the Respondent on 27 April, 1992, and has worked for them since that date. As the Tribunal set out in paragraph 1 of their Extended Reasons, in his originating application presented on 9 April 1996, Mr Usman complained that he had been the subject of racial discrimination and victimisation on three counts:

"(a) On 10 January, 1996, the Respondent commenced a disciplinary procedure against me. A formal hearing was held on 22 January. After supplying new information on 29 January, I believe I was able to demonstrate that there was no substance to the action commenced by the Respondent.

(b) Despite several requests by me and various promises by the Respondent, the Respondent has continued to obstruct the course of justice by failing to appoint an appropriate Designated Officer to hear my grievance against the said Manager.

(c) On 21 March, 1996, the Respondent threatened to revive or renew this Disciplinary Procedure against me:

(i) If I did not settle the Industrial Tribunal proceedings on or about 16 April, 1996, by complying with my former line manager's recent proposal to give up my present location and position, and/or

(ii) If I continued to request a hearing of my grievance against the Aid and Advice Service Manager."

In his application to the Industrial Tribunal these claims were introduced by the following paragraphs:

"1. I brought Industrial Tribunal proceedings under the Race Relations Act against the Respondent on 19 May, 1995. My case number is 30379 - 1995 - LN - C. The Tribunal Hearing is due to take place in the near future.

2. On 6 October 1995, I invoked the Respondent's own Grievance Procedure against its Aid and Advice Service Manager for acts contrary to the Race Relations Act."

As is apparent from those grounds, and as the Tribunal point out, in paragraph 1 of their Extended Reasons the subject matter of these proceedings was a complaint by Mr Usman that he had been the subject of race discrimination and victimisation. Those allegations relate to the Respondent's Grievance and Disciplinary Procedure.

In the second set of proceedings issued on 1 August 1997, Mr Usman made a further complaint under the Race Relations Act 1976 on the basis of an allegation that the Respondent chose not to send any details to him relating to the appointment of several community services managers from within its existing staff and thereby knowingly, and unjustifiably, deprived him of an opportunity for progression. In paragraph 31 of their Extended Reasons the Tribunal record that Mr Usman claimed that there was a deliberate act on the part of the Respondents to exclude his name from those to whom details of this possible appointment were to be sent and this was an act of discrimination and victimisation.

We will deal with the appeals against the two claims separately although the same background is relevant to both of them. This is the way in which the Solicitor acting for Mr Usman, Mr D. Widdowson, approached the matter. At this stage we pause to comment that we are grateful to Mr Widdowson for the way in which he has presented the appeal to us. He had appeared for Mr Usman under the ELAAS scheme at the preliminary hearing. Both in writing and orally he has identified the grounds of appeal relied on. In our judgment properly and correctly these did not include all of the matters set out in the notice of appeal which was prepared by Mr Usman. In our judgment Mr Widdowson put all the points that could be properly put on behalf of Mr Usman to us in a clear and helpful way.

We are also grateful to Counsel who appeared for the Respondent before us and below, Mr Hillier, who provided us with clear and helpful written and oral submissions.

The earlier proceedings.

As appears from the complaints made in the proceedings issued in April 1996, Mr Usman had brought earlier proceeding under the Race Relations Act against the Respondent. He did so on 19 May 1995, and those proceedings were heard by the Industrial Tribunal on 22 May 1996, when they announced their decision that the Respondent had unfairly discriminated against Mr Usman on racial grounds and that such decision was based on one ground, namely, inordinate delay on the part of the Respondent in progressing Mr Usman's complaint and publishing both the results thereof and the reasons for the conclusions reached. The Extended Reasons given for the decision given in the earlier proceedings were sent to the parties on 6 June 1996.

These Extended Reasons were before us but it was confirmed by Mr Widdowson that they were not before the Employment Appeal Tribunal on the preliminary hearing in respect of this appeal. We make no criticism in this respect but comment that, as appears below, these Extended Reasons make it clear that a number of allegations made by Mr Usman in the earlier proceedings as to the conduct of the Respondent and its employees were roundly rejected.

These earlier proceedings are referred to in paragraphs 4 and 16 of the Extended Reasons relating to the cases before us.. These are in the following terms:

"4. The history affecting the party's relationships is as follows. The applicant, Mr Usman had registered a complaint about his then line manager, Mr Everitt, under the Respondent's Harassment, Discrimination and Violence (HDV) Procedure. Lesley Palumbo in October 1994, became the Applicant's Line Manager. In February 1995, the HDV panel advised the Applicant that the complaints were not proved but did not provide written reasons for that decision until July 1995. Events surrounding the HDV panel's procedures and decision were the subject of an Originating Application brought by the Applicant and heard by this Tribunal on 22 May 1996.

16. Following the Industrial Tribunal proceedings on 22 May where race discrimination on the grounds of the delay arising from the HDV panel's decision was found, a decision was reached to cease pursuing the disciplinary proceedings and to substitute Graham Blair as Line Manager."

We pause to note that the decision in these earlier proceedings was not given until after the issue of case No. 22629 / 96 in April 1996, which is the subject of this appeal. The Extended Reasons dated 6 June 1996, relating to these earlier proceedings contain the following paragraphs:

2......We made the following findings of fact:

(b) On 31 October, 1994, he (The Applicant) made a formal complaint against his Line Manager, Mr Everitt under the Respondent's Harassment Victimisation and Discrimination Procedure. His complaint consisted of 27 separate allegations.

(d) The investigation began on 25 November, 1994, but the Respondent did not set aside a number of consecutive days for the panel to sit and deal with a complaint.......

(e) On 17 February, 1995, the panel advised the parties that none of the allegations comprising the complaint had been proved but it was not until 27 July that the reasons were given.

(f) The complaint was fully and properly investigated and although the Applicant was unsuccessful there is nothing in the findings to suggest that the Respondent had in coming to its conclusions unlawfully discriminated against the Applicant on racial grounds.

(h) The Respondent did not unlawfully discriminate against the Applicant on racial grounds in the way that afforded him access to opportunities for training.

(i) The delay in publishing the findings of the panel and, particularly, the reasons was inordinate, inexcusable and unprecedented when compared with any other internal hearing which had taken place within the Respondent Council. Notwithstanding that the complaint was more detailed than most the delay could only have been a reflection of the importance placed upon the investigation by the Respondent.

(j) From the above findings we draw the inference that the Respondent unlawfully discriminated against the Applicant on racial grounds.

3. The Applicant provided notes of his closing speech. Inter alia he complained of the matter in which the Respondent had dealt with the race relations questionnaire and of the delay in concluding the investigation and publishing the findings and the reasons for them. He raised a number of procedural matters including the composition of the panel, the standard of proof that should have been relevant to the investigation, the manner in which the findings should have been expressed and the requirement to consider all the evidence. An intention to harass was irrelevant. He questioned the training of the panel members on the subject of equal opportunities. He further gave his reasons why he believed that all the panel's findings were wrong. Finally he complained of the denial of training in relation to the additional duties which he undertook on following the departure of Ms Marino.

5..... It is for the Applicant who complains of race discrimination to prove his case. Thus if the Applicant does not prove the case on the balance of probabilities he will fail. It is important to bear in mind that it is unusual to find direct evidence of race discrimination. Few employers will be prepared to admit such discrimination even to themselves. The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal. The test is an objective one and one for the Tribunal.

6. The complaint arose as a consequence of the exceedingly poor working relationship between the Applicant and Mr Everitt, his Line Manager until October, 1994. While the Applicant came over as a rather severe but courteous authority figure, Mr Everitt was a long serving local authority employee of liberal views. They were so different in their approach that a personality clash was inevitable even if they had been of the same race. The Applicant was not used to being closely supervised and clearly resented Mr Everitt's close attention. Mr Everitt was inclined to be petty, unsympathetic and, at times, inept in his dealings with the Applicant. While different allegations carried different weight it is clear that as (sic) the relationship had deteriorated as the tenor of the Applicant's complaints came to border on the hysterical.

7. We were impressed by the two members of the panel who gave evidence. They had a difficult task and they were not aided by the Respondent. If they did not have the time to deal with the complaints made under the policy then the Respondent should have found someone who had time. While we could see the points could be made on various findings in the reports we accepted that they were findings that the panel were entitled to make and were free from any taint of race discrimination. We, likewise, found that the procedural irregularities highlighted by the Applicant were not such of themselves to render the findings discriminatory. However the finding regarding the lack of ethnic minorities in senior positions within the Council were worthy of note. The delay is something to which we attach particular importance especially in view of the stated commitment of the Respondent to its procedure. The purpose of the procedure is to provide swift and effective relief from circumstances which might jeopardise the harmonious running of the office and the delivery of the service to the public. In his case the situation was allowed to build up and to fester in the mind of the Applicant. The Respondent was not able to deliver on the procedure until some ten months after the matter started. We listened to what has been said by the panel members. While we have sympathy for them the fact remains is that their delay was unprecedented and a reflection upon the Respondent's commitment to equality.

8. While we listened carefully to the points made by the Applicant on the matter of training and, in particular, the training in respect of the additional duties which he was asked to perform, we are satisfied by the evidence both oral and documentary which was given by the Respondent. We were satisfied that the applicant was not discriminated against in this respect and he himself was particular in saying that he had no complaint about the training given to the young trainee solicitor who had spent some time in his department.

9. We find that the applicant has proved his case on the balance of probabilities but only in respect of the complaint of the inordinate delay on the part of the Respondent in progressing his complaint and in publishing both the result and the reasons.

As appears from the citation of those Extended Reasons the Applicant succeeded only on the ground of delay from which that Tribunal felt able to infer unlawful discrimination on racial grounds.

It is however to be noted that that Tribunal concluded that the allegations that Mr Usman had made against Mr Everitt had been fully and properly investigated by the HDV panel. That Tribunal therefore rejected a number of allegations that had been made by Mr Usman relating to the conduct of the panel. In this respect we were referred to a memorandum written by Mr Usman to the Acting Head of Personnel, dated 23 April, 1996 (shortly before the hearing in the earlier proceedings on the 22 May 1996). In that memo, Mr Usman said, among other things:

"The panel was entrusted with a quasi-judicial task. I have reason to believe that the panel knowingly engaged in a miscarriage of justice on an elaborate scale, my reasons are as follows:

(a) The panel had a duty to be impartial but, from the very outset, the panel viewed itself as a party and expected to receive written evidence as if it was a party to the dispute. It was contrary to the rules of natural justice for the panel to sit in judgment in a dispute in which it considered itself to be a party.

(j) The panel was more Royalist than the King. It was too zealous to protect HACM against charges of violating the Race Relations Act. The panel suppressed my evidence and did not allow me to comment on other's evidence in order to produce verdicts of "not proven" which in themselves were not in line with the guidelines. The panel's analysis of my allegations, its findings and its conclusions are obviously based on incomplete information and clearly biased, and without any basis in reality.

(l) Despite its own miscarriage of justice on such a large scale, or perhaps because of it, the panel had the audacity to recommend a review of the Council's existing procedures in order to make it even harder for any future complainant to attain the ends of justice at Watford. This panel clearly had an interest in discouraging any complaint against its self.

Further, it appears from the Extended Reasons in the earlier proceedings that the complaints that Mr Usman made against Mr Everitt arose as a consequence of the exceedingly poor working relationship between those two gentlemen and that their characters and approach were so different that a personality clash between them was inevitable even if they had been of the same race. That Tribunal also rejected Mr Usman's allegations that the Respondent had discriminated against him in respect of the manner in which they afforded him access to opportunities for training.

Preliminary Hearing at the Employment Appeal Tribunal

This judgment contains the following passages:

Mr Usman was first employed by the Respondent in April, 1992, and in May, 1995, he began proceedings in the Industrial Tribunal complaining that there had been racial discrimination against him. Those proceedings came before the Industrial Tribunal in May, 1996, and that Industrial Tribunal, though not accepting the whole of the complaint (which we have not seen), did find, apparently, that racial discrimination was established.

It appears to us that the substance of what is said can be gathered from reading the decision, the reasons given by the Tribunal, who dismissed the application: it is said that they did not give proper weight to the previous finding of the Industrial Tribunal, that racial discrimination had been established in respect of a failure to give reasons promptly, as we are told it was.

If there was a finding of racial discrimination in favour of Mr Usman then it seems to us that when two allegations were made of victimisation it behoves the Industrial Tribunal to enquire carefully into the matters of complaint and it is said, and we think it is perfectly plausibly said, that they reached their conclusions simply by saying, in substance, that Mr Usman is a very difficult and troublesome sort of man; opinionated, not open to reason and so forth. They do not seem to have gone into the question whether that was occasioned by the bad treatment which he had received, as their colleagues in the other Tribunal found, whether it was the facts on which that earlier complaint rested which had led to Mr Usman becoming embittered and difficult and so forth.

Clearly if a Tribunal has found that there has been discrimination it behoves any Tribunal which follows afterwards, looking at allegations of victimisation, to look very carefully to see how the disadvantages or ill-treatment of which the complainant complains have been caused. Furthermore we are told on instructions by Mr Widdowson of ELAAS, to whom we are very grateful, who has appeared today for Mr Usman, that many of the conclusions of the Tribunal are inconsequential or not based on evidence or contrary to evidence. We say no more about that because we have not seen the evidence.

It is certainly possible to demonstrate, on the face of it, some illogicality in the various observations of the Tribunal. Among other things it is said that the explanation offered in respect of the matters of the second complaint where Mr Usman complains that he was not notified of the manager's appointment which he would have wished to apply for, was that there had been a mistake about his grade.

The Appeal Generally

On this appeal Mr Usman, through his Solicitor, relied heavily on the passage from the judgment on the preliminary hearing which was in the following terms:

"If a Tribunal has found that here has been discrimination it behoves any Tribunal which follows afterwards, looking at allegations of victimisation, to look very carefully to see how the disadvantages or ill treatment of which the complainant complains have been caused."

We accept that observation as a general statement. Further, and unsurprisingly, it was not challenged by the Respondent. It is however no more than a helpful statement of the general approach at a stage when this Tribunal was only considering whether the Notice of Appeal disclosed points of law that were reasonably arguable. It is not indicative of the result of this appeal, or of the view of that Tribunal as to what that result would, or should, be. Additionally it is to be noted that it relates expressly only to the allegation of victimisation.

A relevant factor in the consideration of this case is that the finding of the Tribunal in the previous proceedings did not take place until after Mr Usman had issued his proceedings on 9 April 1996. The earlier decision did however pre-date the proceedings issued in August 1997. We however accept Mr Widdowson's submission that when this Tribunal came to consider Mr Usman's complaints it should take into account the decision in the earlier proceedings and look carefully to see how the disadvantages or ill-treatment of which Mr Usman complains in the present proceedings have been caused.

In our judgment a fair reading of the Extended Reasons given by the Tribunal in these proceedings read with the Extended Reasons in the earlier proceedings, the agreed facts and the contemporaneous documents we were referred to demonstrates clearly that this is what the Tribunal did.

The Tribunal heard evidence and submissions over four days and their Extended Reasons refer to the earlier decision and the basis upon which that decision was reached.

In our judgment it cannot be said that because the Tribunal that heard the earlier proceedings inferred discrimination on the ground of race because of the inordinate and inexcusable delay in the HDV procedure that it is surprising that the Tribunal in these proceedings did not draw the same inference in respect of the delays and conduct alleged in them, or that there had been victimisation.. In our judgment, in this context, it should be remembered that the Tribunal that heard the earlier proceedings found that the original complaints made by Mr Usman against his line manager, Mr Everitt, were not caused by a difference in race but by differences in personality and approach and that the Tribunal in the earlier proceedings rejected a number of serious allegations made against the panel.

Additionally in this case the delays alleged are different and arise in different circumstances. Further as the Tribunal that heard the present proceedings heard evidence and submission over four days they were in an excellent position to assess the witnesses.

In our judgment the Extended Reasons of the Tribunal in this case demonstrate that they did not as is alleged on behalf of Mr Usman fail to give sufficient weight to the previous finding of discrimination. Rather, in our judgment, they took it into account but concluded on the oral and written evidence before them that the disadvantages or ill-treatment of which Mr Usman complains had not been caused by racial grounds, or by the fact that he had made complaints asserting racial discrimination or victimisation in the past, or that he had brought the earlier proceedings in the Industrial Tribunal and had succeeded in them in part.

Case Number 22629 / 96 - issued on 9 April 1996.

If one returns to the basis upon which Mr Usman made this claim in his application to the Industrial Tribunal it is apparent that the findings of fact made by the Tribunal have the result that this case fails.

As to point (a) the Tribunal finds that the disciplinary proceedings were commenced in September 1995, and not January 1996, as alleged (see paragraphs 7, 8 and 23 of the Extended Reasons). Paragraph 23 includes the following finding:

It was clear that he (Mr Usman) was told and accepted he was told on 22 September, 1995, that he would be the subject of a disciplinary investigation. It was only after that that he commenced this grievance procedure against Lesley Palumbo. If there were any retaliation, it was from Mr Usman against Lesley Palumbo for commencing disciplinary proceedings in respect of him.

As to point (b) an examination of the chronology of events shows that there was ample evidence for the Tribunal to find that this allegation was wrong as it did (see paragraphs 8 to 18, 22, 24, 25 and 27 to 29 of the Extended Reasons). We were shown several documents relating to this period. We accept that some of them indicate that Mr Usman wanted his grievance to be addressed but others show that the Respondent was trying to sort things. For example on 10 November 1995 and 22 January 1996 Mr Usman was invited to contact personnel to progress matters, but he did not do so (see again paragraph 27 of the Extended Reasons). The documents we were referred to by the parties show that there was ample evidence before the Tribunal to found their conclusion.

The same comment applies to point (c) which the Tribunal reject in paragraph 26 of their Extended Reasons. It is clear that as with the other allegations made by Mr Usman the Tribunal considered this point fully and carefully.

It was submitted on behalf of Mr Usman that some of the findings of fact in respect of this claim were perverse. In this context we were referred to a number of the documents. Again, and unsurprisingly, the passages we were referred to by Mr Widdowson on behalf of Mr Usman contained points that could be put in favour of Mr Usman's contentions as to the facts and his belief that the findings of the Tribunal were wrong. But other parts of the documents to which we were referred point the other way.

In our judgment the arguments that particular findings of the Tribunal and their overall conclusion were perverse fails. There was ample evidence upon which the Tribunal could base their finding and their reasoned conclusion as to why they preferred the evidence of the Respondents to that of Mr Usman where there was a dispute of fact between them. This was not simply a general finding but is supported in paragraph 19 of the Extended Reasons where it is made and by the particular and reasoned findings made throughout the Extended Reasons.

It was also submitted on behalf of Mr Usman that the Tribunal erred in law in failing to consider properly whether they should infer that Mr Usman had been discriminated against within sections 1 or 2 of the Race Relations Act 1976, or that they were perverse in drawing such inferences. In this respect we referred to Glasgow City Council v Zafar [1998] IRLR 36 and thus to King v The Great Britain China Centre [1991] IRLR 513. Those cases are not mentioned in the Extended Reasons but in our judgment a fair reading of the Extended Reasons shows that the Tribunal did consider whether they should infer this. We therefore reject these submissions.

In short we accept the submission made on behalf of the Respondent that Mr Usman has failed to establish any error of law on the part of the Tribunal and their findings are unassailable.

Case Number 2204045/97 - issued on 31 July 1997

In our judgment Mr Widdowson correctly in his oral submissions before us accepted that:

(a) paragraph 34 of the Extended Reasons contains a typing error (see for example paragraphs 2, 31 and 36) and that contrary to what had at one time been asserted the Tribunal did not err in law in failing to appreciate that Mr Usman was making a victimisation claim, and

our understanding is that Mr Usman was making a claim of racial discrimination under section 1 of the Act and of victimisation under section 2 thereof, and

(b) the appeal in this case stood or fell with the assertion that the finding in paragraph 33 that the reason why Mr Usman had not been invited to apply for the position as one of the Community Service Managers was an error was not a permissible option.

This argument overlapped with the argument relating the alleged failure of the Tribunal to make inferences and perversity raised in case number 22629/96, and in advancing this argument Mr Usman again placed on Glasgow City Council v Zafar [1998] IRLR 36 and thus to King v The Great Britain China Centre [1991] IRLR 513. Further and importantly he placed reliance on the fact that during the course of the proceedings the Respondent gave differing and inconsistent explanations as to why Mr Usman was not sent details of the proposed appointments.

We accept that the Respondent did give differing and inconsistent explanations.

As to the claim under section 1 we also accept that:

(a) it was not necessary for Mr Usman to show that the Respondent had any intention or motive to discriminate against him contrary to section 1 of the Act, and

(b) the Tribunal had to look at the question carefully and determine whether they accepted the reason ultimately given and what inferences they should draw in respect of the claim for racial discrimination under section 1 of the Act.

As to the claim under section 2, victimisation, our attention was not drawn to Aziz v Trinity Street Taxis Ltd [1988] ICR 534 which establishes that in respect of this part of his claim Mr Usman had to establish that the fact that he had done an act within section 2(1) (a) to (d) had influenced the Respondent in their unfavourable treatment. Thus in respect of that part of the claim motive was relevant. But again we accept that given the differing and inconsistent explanations given as to why Mr Usman had not been sent details of the proposed appointments the Tribunal had to look at the question why Mr Usman had not been invited to apply carefully and critically. In doing so they could have rejected or refused to accept the explanation ultimately given and found by inference that the Respondent was influenced by the protected acts.

In our judgment the Extended Reasons show that the Tribunal took into account the fact that the Respondent had given differing and inconsistent explanations and having regard thereto did consider carefully whether they should accept the explanation ultimately given or reject it and find (by inference or otherwise) that there was discrimination under section 1 or 2 of the Race Relations Act 1976 (see paragraphs 30 to 33 and 36 of the Extended Reasons).

It follows in our judgment that the Tribunal did not err in law and their finding is well within the range of findings that a Tribunal properly directing itself could have made. We therefore reject the appeal in this case.

Bias

Mr Usman made an allegation of bias in both cases.

It was, in our judgment correctly, accepted that the test or approach to determining whether there was bias or unfairness is set out in Peter Simper & Co Ltd. v Cooke [1986] IRLR 19.. This is a test by reference to whether a reasonable observer, present at the hearing, not being a party, or associated with a party, gain the impression of bias.

The short answer to this attack by Mr Usman is that applying that approach we have concluded that such an observer would not have gained that impression.

No allegation was made that comments and actions of the Tribunal during the hearing of the substantive case indicated bias. This is relevant and important in considering the grounds relied on.

Mr Usman argued that the forthright terms in which the Tribunal made findings against him indicated bias. We do not agree. We accept that during the course of a hearing expressions of opinion or view in forthright or strong terms may be inappropriate and might suggest bias, but in our judgment the same does not apply to findings in Extended Reasons or a judgment so long as the findings are relevant, and not gratuitous comments. Indeed in our judgment in finding facts a Tribunal or Court should where it is relevant not shrink from making forthright and clear findings. In our judgment the findings complained of in this case were relevant and do not give any indication of bias. In saying that we naturally appreciate that Mr Usman disagrees with them. Indeed part of his allegation of bias was that the comments of which he complains were unjustified. That aspect of his argument is however one as to the substance of the decision and essentially covers the same ground as his arguments based on perversity which we have rejected.

Following the hearing and after Charles J had written all of this judgment apart from this paragraph to reflect our thinking our attention was drawn to the decision of this Tribunal in Tchoula v Netto Foodstores Ltd (EAT/137/96) and the decision of the Court of Appeal in that case on 15 October 1998 giving Mr Tchoula leave to appeal. The main judgment on the leave application being given by Thorpe LJ with Henry LJ agreeing, but sounding the note of caution that Mr Tchoula should not be optimistic. We are grateful to the representatives of the parties for bringing this case to our attention. We were asked to consider whether it might cause us to review our conclusion which we announced at the end of the hearing and if it did to reconvene for further oral submissions. We think that it is apparent from our reasoning in the preceding paragraph (which as we have said was written by Charles J before the Tchoula case was drawn to our attention) that this case has not led us to conclude that we might change our minds if we were to hear further oral submission based on it. In particular as appears from the preceding paragraph in our judgment the findings and remarks in the Extended Reasons about which Mr Usman complains, and upon which he seeks to base his argument of bias (a) were relevant, and thus not gratuitous, and (b) were supported by reasoning (see again our reasoning relating to Mr Usman's case based on perversity under the heading "Case Number 22629 / 96 - issued on 9 April 1996).

Mr Usman also argued that decisions that were made as to discovery and the order of proceedings, demonstrated bias. In our judgment these decisions were well within the range open to the Tribunal and do not indicate any bias.

In our judgment Mr Usman's best argument in support of his allegation of bias, which of course includes apparent bias, was that comments and actions of the Chairman in relation to the discussion that preceded the hearing in respect of a possible compromise showed hostility towards him which pervaded the whole proceedings.

We are satisfied that there was no actual bias. The issue is whether there was any apparent bias.

Here the facts are not agreed. This places us in a difficult position. We are aware of a decision of this Tribunal in Roberts v United Friendly Insurance Plc Appeal No. EAT/436/95 that in respect of allegations of bias as a matter of policy the account of the Members of the Tribunal should, in the case of disagreement, be preferred.

The majority view in respect of the Roberts case is that it refers to earlier authority which can be said go both ways but do not support a conclusion that Members of Tribunal cannot be compelled to give evidence. Whilst we agree that it is undesirable that Members of a Tribunal should be called upon to give oral evidence we do not agree that as a matter of policy they should never be ordered to do so In our judgment such a policy could lead to the issue not being dealt with fairly. A basic proposition of our present law is that parties should have a fair trial and this is also a part of the European Convention on Human Rights (see Article 6). Also in our judgment this is a different issue to the question whether the notes of evidence made by the Tribunal should be conclusive in the event that the parties do not agree that they contain an error.

The minority view in respect of the Roberts case is that it was a case where an allegation of bias was made and involved conflicting policy considerations. On the one hand there was the basic right of an appellant to have his case heard by an independent and impartial tribunal as a matter of natural justice and on the other the wholly undesirable prospect of requiring persons who sit in a judicial capacity to appear, ultimately in the witness box, to justify what they had done. On policy grounds it was decided to maintain the practice of the Employment Appeal Tribunal which is set out in the EAT Practice Direction at paragraph 9 and to rely on the account given by the Members of the Tribunal insofar as it conflicts with that put forward by an appellant. Counsel in the Roberts case drew attention to Article 6.1 of the European Convention on Human Rights. When the Convention forms part of English law the position may have to be reviewed.

It follows that on the basis of the decision in the Roberts case the minority would accept the written evidence of the Chairman where it conflicts with that of Mr Usman. But if that view is wrong the minority agrees with the approach and conclusion of the majority concerning the factual disputes raised in the written evidence.

We do not agree with a submission made on behalf of Mr Usman that because the Chairman did not specifically dispute some of the allegations made by Mr Usman in his affidavit those allegations should be accepted. We do not agree with that generally or on the facts of this case. Here it is apparent that the Chairman does not agree with Mr Usman's account of events and it would be wrong to allow Mr Usman to isolate allegations that are not specifically dealt with. Further the history of this case demonstrates that Mr Usman has in the past been prepared to make allegations of bias against people who have made decisions with which he did not agree and those allegations have been rejected (e.g. the allegations of bias against the panel contained in the memorandum dated 23 April 1996 cited above).

The factual allegations upon which a submission of bias is to be founded must be proved on the balance of probabilities. The burden is on the person alleging bias, here Mr Usman. The approach to making findings on the balance of probabilities has been recently considered by the House of Lords in Re H (Minors) (Sexual Abuse : Standard of Proof) [1996] AC 563, in particular at pages 586/7 where Lord Nicholls points out that in assessing the probabilities a court or tribunal will have in mind, as a factor, to whatever extent is appropriate in a given case, that the more serious the allegation the less likely it is that the event occurred, and, hence, the stronger should be the evidence before the court or tribunal concludes that the allegation is established on the balance of probability. In our judgment this comment applies to allegations of bias and inappropriate conduct by members of Employment Tribunals.

Accordingly we do not accept that Mr Usman had established his allegations on the balance of probabilities. The question therefore arose as to whether we should give directions for the determination of this factual disputes. We decided not to. We did not base this decision on the fact that Mr Usman bore the onus of proof and had not sought further directions to enable the disputes of fact to be resolved. We based it on our conclusion that in this case even if Mr Usman's allegations were assumed to be correct they did not establish bias on the approach laid down in the Peter Simper case.

As to this we accept that on the basis of Mr Usman's account (a) the Chairman demonstrated frustration and temper and a view as to the amount of compensation Mr Usman might be awarded, and (b) her conduct might be criticised. However assessed through the eyes of the objective observer we have concluded that this conduct does not indicate actual or apparent bias. Our main reasons for this are that:

(i) the comments and actions are confined to the possible settlement of the case,

(ii) the reaction to the amount of an award should be assessed against the background in which it was made and that shows that it was a preliminary and not a fixed, or partly fixed, view,

(iii) the discussions and actions were all before the substantive hearing began and related to possible settlement and any objective observer would have appreciated that and thus that any views being expressed by the Tribunal were made on a preliminary basis and any anger or frustration shown by them was related to and only to the possibility of settlement, and

(iv) no complaint is made as to comments of the Tribunal during the course of the hearing which shows to an objective observer that the Tribunal put behind them the issue of a possible settlement and got on with their job of hearing the cases properly and fairly.

We would like to make it quite clear that the comments made above are on the hypothesis that Mr Usman's account of events is correct. This is disputed and therefore we are not making and no-one should infer that we are making any criticisms of the way in which this Tribunal acted.