United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	ANDREW HOCHHAUSER QC Instructed by: Mr C J Vyse Messrs Charles Russell Solicitors 8-10 Fetter Lane London EC4A 1RS
For the Respondents	MISS IJEOMA OMAMBALA (of Counsel) Messrs Wansboroughs Willey Hargrave Solicitors 103 Temple Street Bristol BS99 7UD


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal against the decision of an Industrial Tribunal Chairman sitting alone at Bristol on 14th November 1997, whose decision was reduced to writing and sent to the parties on 24th November 1997. By that decision the learned Chairman dismissed the applicant's complaint that her former employers, Messrs Wansbroughs Willey Hargrave, a firm of solicitors, had broken her contract of employment.

The applicant, Ms Chaffin, commenced her employment on 20th November 1995 as a secretary under the terms of a written contract. Those terms indicated that she would be provided with an office manual on the first day of her employment which set out aspects of company policy which form part of her terms and conditions of employment. The terms and conditions of employment dated 20th November 1995, which she duly received, provided in clause 15 as follows:

"15. Disciplinary and Grievance Procedure

15:1 The Firm's disciplinary and grievance procedure is set out in the Office Manual. This procedure may be revised from time to time. Any such changes will be communicated to you in writing."

The relevant provisions of the disciplinary and grievance procedure provide that the disciplinary procedure applies in cases of alleged misconduct. They lay down a regime for verbal, written and final warnings leading to dismissal with a definition of what is regarded as gross misconduct. There is a definition, also, of incapability and examples are given of that matter.

Beginning in January 1997 and until her dismissal in July 1997, Ms Chaffin worked as an assistant administrator in the Training and Personnel Department of the respondents ["Wansbroughs"]. There was never any suggestion that she failed to perform her job satisfactorily, indeed, her work was described in the attachment to the respondents' IT3 as generally first class.

It appears that the first real indication of tension between Ms Chaffin and her employers arose in May 1997, two months before her dismissal. She had previously, in March 1997, obtained authorisation from the then personnel manager, in respect of three holiday forms sanctioning holidays over the course of the next ten months, but six weeks later, in May 1997, the then personnel and training administrator noticed that the holiday authorisations appeared incompatible with the staff holiday chart and, accordingly, on 13th May Ms Chaffin was requested in writing to please seek the authorisation of the personnel and training administrator before booking any holidays. Thereafter difficulties persisted in her relationship with her line manager, and an informal discussion ensued between the applicant and the head of training and the new head of personnel regarding the proper function of the department.

On 23rd June 1997 the applicant was written to by her employer summarising the nature of the discussions which had taken place. That letter reads as follows:

"Reporting Structure

Further to our meeting on Tuesday, below is confirmation of the aspects we discussed. We feel it is necessary to confirm in writing the reporting structure within Personnel and Training. Your immediate line manager is Pam Skinner, the Personnel and Training Administrator, to whom you will report on day to day matters including:

1. The department workload, Pa, will delegate tasks and supervise you.

2. All matters relating to sickness and holidays should be referred to Pam as the first line of management.

3. Certain aspects of the workload will be delegated directly to you by either the Personnel Manager or the Training Manager, but will be overseen by Pam.

In addition we agreed we would discuss certain ground rules of the department at a Team Briefing (to be arranged), so that all members of the department can be involved in the discussion. You also agreed that you would discuss problem areas as they arose rather than allowing grievances to build up and become potentially damaging.

I am glad we had the discussion as both of us feel that personality problems within a department can be as damaging as a poor standard of work. As discussed we have no criticism with the quality of your work, which is generally first class, but we are also keen to build a team which functions well in respect of its relationships.

I would be grateful if you could sign a copy of this letter as an indication that you have read and understood its contents."

Thereafter, on 25th July 1997, the applicant was handed, at a meeting, a letter addressed to her by a Mr John Blackwell, who is the Managing Partner. The letter reads:

"I regret to inform you that it has been decided to terminate your employment with immediate effect. Your contract of employment commenced on 20 November 1995, consequently you are entitled to four weeks' notice.

For a number of reasons we do not think it is in either of our interests to you to work your notice period. Accordingly we shall no longer require your attendance with immediate effect.

A cheque has been prepared to cover your notice period of four weeks, outstanding holiday entitlement of 10 days and two weeks salary compensation payment together with your P45. We obviously require surrender of keys and any other company possessions."

Following her dismissal, the applicant sought reasons for it, and she received, at some stage, a letter which in our papers is dated 9th September 1997. There is some doubt, but not of materiality, as to the true date. In that letter the Chief Executive of the firm indicates that the quality of the applicant's work was good. The letter continues:

"... but it soon became apparent that you felt the lack of status as Personnel and Training assistant/secretary and resented reporting to Pam Skinner. This is shown on your personnel file when Pam Skinner resorted to a written note to enforce a decision made on annual leave - I understand the note was torn up by you before reading and you refused to acknowledge this decision. This was further followed up by a discussion with ... and confirmed in writing where it was reinforced that Pam Skinner was the immediate line manager and further that it was considered to be part of the team was as important as a good standard of work. This letter you also failed to acknowledge as having read and understood its contents, but is referred to in your letter.

After a brief period of harmony in the department, you expressed disappointment in your salary review and your lack of status in May and once again disagreements occurred in the department. You made it clear that the post did not meet your career aspirations and we found it impossible to satisfy these within the constraints of the post. Despite instruction you continued to by pass Pam Skinner on day to day management issues such as sickness and annual leave forms. After several verbal attempts and two written attempts to bring together a team atmosphere it was felt that termination of your contract was unavoidable.

Helen Staines and Carol Smith expressed the personality problems encountered by the department in your final meeting, but did not dispute that you could produce good quality work. The department cannot function with a poor team atmosphere and it was considered appropriate to terminate your contract."

Earlier on in the letter the reason for the dismissal was succinctly stated in this way:

"... the personality problems encountered in the Personnel and Training department and your apparent inability to accept direction and criticism from your immediate line manager Mrs Pam Skinner. This inevitably led to a lack of team participation and the department felt they could no longer tolerate this situation."

Having received that letter, Ms Chaffin then made an application to the Industrial Tribunal. She did not have the requisite two years of continuous service and therefore could not bring a complaint of unfair dismissal, but she was entitled, as she did, to bring a complaint alleging breach of contract. In her complaint she says that the disciplinary procedure was not followed in her case and that there had been a breach of her employment contract in their failure to follow it. In their IT3 Wansbroughs, representing themselves, indicated that they accepted that the applicant had been dismissed and filled in Box 4 accordingly, and underneath Box 4 there is written in typescript on the standard form:

"Reason for dismissal:

Conduct"

They then set out, at some length, their side of the story and at paragraph 10 of their substantive response Wansbroughs said this:

"10. It is denied that the Applicant was contractually entitled to the disciplinary procedure."

They did not say at that time that if the disciplinary procedure was contractual it was followed, nor did they say that if the disciplinary procedure was contractual having regard to the reason shown for her dismissal the disciplinary procedure did not apply to the facts of her case.

The matter then came on for hearing. Both parties were informed that the Chairman would be sitting alone as they entered the tribunal premises. When the parties went into the tribunal room, the Chairman having been engaged apparently in other matters earlier on that morning, then disclosed that he knew one of the respondents' prospective witnesses. He would have become aware that this witness was to be called, a Mrs Staines, because at some stage the employers had made available to the Clerk to the tribunal papers on which they intended to rely, including this and one other witness statement.

The state of the evidence in relation to what occurred at this stage is as follows. In paragraph 3 of Ms Chaffin's affidavit she swore this:

"At the beginning of the hearing, the Chairman indicated that he knew Mrs Staines, one of the two people involved in my dismissal. I cannot recall the precise words that he used but he did not indicate the degree of contact he had with her as he now does and certainly gave the impression that he knew her well, both personally and professionally. He clearly regarded it as sufficiently serious to raise the matter."

Ms Chaffin went on to indicate in the affidavit that she thought that the issue with which the tribunal was going to be concerned was whether or not the circumstances of her termination required the application to her of the disciplinary procedure and, if so, whether it was contractual. She did not anticipate that she would have to deal with any wider submissions than that. She said that she had never been to an Industrial Tribunal before and as a litigant in person she was completely unfamiliar with the procedures. Her former employers, as she pointed out, a well-known firm of solicitors, had instructed Counsel, and she found the task of representing herself quite formidable and she was rather nervous.

The affidavit sworn by the relevant partner of Wansbroughs says this:

"The Appellant's Affidavit is accurate at paragraph 3 where it states that the Chairman of the Industrial Tribunal, Mr Griffiths, did indicate at the beginning of the hearing that he knew me. He did not say he knew me well, and did not suggest that he knew me personally."

and then she went on to indicate that her acquaintance with Mr Griffiths was purely professional and that in her capacity as a solicitor she had met with him on about three occasions between 1991 and 1994, but apparently nothing more recently than that. The affidavit then continues:

"At the beginning of the hearing, when Mr Griffiths raised the issue that he knew me, he invited the Appellant to consider whether she was happy for him to continue to hear her case. I recall that the Applicant at that time indicated that she wished the matter to be heard as quickly as possible. She did not ask for an adjournment to consider the matter, although it was open to her to do so. The Appellant did not raise the issue again during the hearing of the matter. It seemed to me that the Appellant was happy to continue with Mr Griffiths hearing her claim."

She then goes on to pass comment about the way that Mr Griffiths conducted the case and expressed the view that the appellant had been dealt with as fairly as she possibly could have been, having regard to the fact that she was representing herself.

The learned Chairman was invited to comment on the appellant's affidavit and did so as follows:

"(1) The Chairman did not know Mrs Staines personally. Both she and he are solicitors in private practice in Bristol: in that professional capacity they have dealt with each other on three separate occasions over the period of fifteen years. The Chairman informed the applicant of these facts at the outset and invited her to object to him hearing the case; she took time to consider, and decided to proceed."

Then the Chairman makes a comment about one of the findings that was made in the decision, a finding that:

"a reasonable employee would have concluded upon receiving the letter [to which we have referred - that is the June letter] that it amounted to a warning was in answer to the applicant's assertion that she had received no warnings and that her dismissal came as a surprise.

The issue for the Chairman was simply whether or not the respondent was in breach of the terms of the applicant's contract of employment. The Chairman's decision, entirely free of bias addresses exclusively that issue."

After the discussion which had taken place in the Industrial Tribunal about whether the Chairman should recuse himself from adjudicating on the case, Miss Omambala, Counsel for Wansbroughs, and the applicant were invited to indicate to the learned Chairman what issues arose for consideration. The applicant did so and we are told that Miss Omambala also did so, and we are told by her and accept, that she indicated to the learned Chairman that she would be dealing with three issues:

(1) was the disciplinary procedure contractual;

(2) did it apply in the circumstances; and

(3) if the procedure did apply, was there a breach of it.

Thereafter the applicant gave evidence and she was asked a number of questions about her relationship with her employers in the department in which she was employed. Her employers then gave evidence, including that of Mrs Staines, the person whom the Chairman knew, and one other witness. We have seen the statement of Mrs Staines and it is clear to us that she was giving a considerable amount of evidence as to why it was that the problems in the department in which the applicant was employed had been considered by her employers to be attributable to her behaviour. It was also clear that the applicant did not acknowledge that there was any problem, Mrs Staines was present at the meeting when she was dismissed, and when the applicant had suggested that they were not entitled to dismiss her in the way that they were doing. It would have been clear at the time when Mrs Staines came to give evidence, for the Chairman had an opportunity to read her witness statement, that she was going to be a crucial witness on the question as to whether the disciplinary procedure applied to the circumstances of the applicant's dismissal. He was therefore going to have to pass a judgment about her reliability as a informant giving evidence before him. It must have been clear to the learned Chairman that he was going to have to adjudicate on issues of fact of a sort which is familiar to an Industrial Tribunal when considering unfair dismissal cases.

The decision of the Industrial Tribunal is short. In paragraph 2 the learned Chairman identifies three issues:

(1) What were the terms of the applicant's employment?

(2) Was there a breach? If so, of what term?

(3) What loss flowed as a result of the breach?

It appears, although it is not entirely clear, that he decided that the disciplinary procedure was in fact a term of her contract of employment. That we deduce from paragraphs 3 and 4 of the decision. He then deals with the disciplinary procedure itself and the underlying circumstances in which the applicant came to be dismissed. On the basis of those facts he then said that he had to decide whether or not there was a breach of the terms of the contract of employment in having failed to comply with a combination of clause 15 and paragraph 7 of the handbook respectively. He then said this:

"8. Having considered the terms of the contract I am satisfied that the personality clash was not an "offence" under the disciplinary and grievance procedures as it was a matter that was not specifically attributed to either of the applicant or her line manager: it was not therefore necessary or possible for that procedure to have been strictly complied with by the respondent prior to terminating the contract of employment in order to comply with its terms."

Thus it was that he had decided, apparently, that the applicant was dismissed by reason of a "personality conflict" which was not a matter relating to conduct. He does not deal in paragraph 8 with the terms of the IT3 which make it plain that the employers were asserting that conduct was the reason for the dismissal. In paragraph 9 of his decision he says this:

"9. Accordingly there is no breach of contract by the respondent in failing to comply with those procedures. In addition I am satisfied that the impact of the agreed personality clash was made aware to the applicant as a result of various informal discussions and at least one letter written to her. It is accepted that that letter was not labelled as a warning but I am satisfied that (even if there was a contractual obligation upon the respondent to go through a disciplinary procedure) a reasonable employee would have concluded upon receiving a letter of that sort during the course of employment that it amounted to a warning as provided for by the disciplinary procedure."

It is not entirely clear whether this paragraph is intended to be a finding that if the procedure was contractual it was not broken but rather was followed; or whether, as he says in his letter dealing with the allegation of bias, he was saying no more than that in response to the applicant's contention that this had come as a surprise to her he thought that it should not have done so having regard to the earlier letters.

Ms Chaffin has had the benefit of the legal professions' pro bono service. The fact that Mr Hochhauser QC has represented her at this appeal and that he has been supported by Messrs Charles Russell & Co, is a great tribute to the workings of the scheme. We have been greatly assisted by Mr Hochhauser in this appeal.

There are really three principal grounds which he argued before us:

(1) The Chairman erred as a matter of law and fact in holding that there was no breach of contract by Wansbroughs.

(2) The Chairman failed wrongly to exercise his discretion pursuant to s. 4(5) of the Employment Tribunal Act 1996 and to order that the case be heard before a three member tribunal.

(3) His connection with a key witness of the respondent, amounted to a real risk of bias actual or apparent.

Mr Hochhauser drew our attention to the fact that the only pleaded issue before the Industrial Tribunal was that Ms Chaffin was not contractually entitled to the disciplinary procedure. That was an issue, which could readily and quickly have been resolved by a Chairman sitting alone because it required simply an analysis of the contractual documents and an answer to the question whether the disciplinary procedure had been incorporated into her contract. It was only as a result of an extension to the pleaded issue that the Chairman was required to consider any other matter. There was nothing in the pleaded case to show that the applicant had been dismissed for a reason which took it outside that procedure; nor was there any contention that Wansbroughs had complied with it; nor could either point be thought to have been implied from the terms of the IT3. Mr Hochhauser suggested that the learned Chairman therefore embarked on a case which was well beyond what was raised by the documents presented to the Court.

As to the issue of Wansbroughs' reasons for dismissing the applicant, he pointed out that the letter specifying the reasons for the dismissal on 9th September identified a perceived weakness in the applicant's behaviour which fell within the meaning of misconduct and drew particular attention to the allegation that she appeared unable to accept directions or criticism from her immediate line manager. Furthermore, he emphasised that Wansbroughs, a firm of solicitors, themselves had stated that the reason for dismissal was conduct, and that must of course mean misconduct, and that the detailed grounds on which it was intended to resist the application went well beyond the scope of a limited personality clash argument and obviously amounted to criticisms of Ms Chaffin's conduct. For example, in paragraph 2 they said:

"2. ... it became apparent that the Applicant felt the title Personnel and Training Assistant/Secretary lacked status, and resented reporting to Pam Skinner, the line manager."

...

5. ... the Applicant had expressed her disappointment in her salary review, and her lack of status. She made it clear that the post did not meet her career aspirations ..."

Accordingly, it is said with considerable force, as it seems to us, that a finding that the circumstances of the dismissal fell outside the scope of the disciplinary procedure was not an issue which had been raised at all by Wansbroughs before the hearing itself. Further, if the learned Chairman was intending by paragraph 9 of the decision to find that there was in any event compliance with the disciplinary procedure, it was a conclusion which was manifestly perverse. The procedure speaks for itself and involves a system of verbal and then written warnings and periods for adjustment.

As to the failure by the learned Chairman to apply his mind as to whether this was a case where he should be sitting on his own. Reference was made to a decision of the Employment Appeal Tribunal in Sogbetun v London Borough of Hackney [1998] IRLR 676, where the Employment Appeal Tribunal suggested a two-stage approach. Firstly, the Chairman must determine that the proceedings qualify under s.4(3) of the Industrial Tribunals Act 1996 to be heard by him sitting alone; and secondly, he must apply the statutory criteria contained in s.4(5) of the Act and exercise his discretion as to whether or not it would be desirable to refer the case to a full tribunal. There was no evidence that the learned Chairman had applied his mind to the exercise of his discretion, nor had he, contrary to what was said in Sogbetun indicated the reasons why he felt it appropriate that he should be continuing to sit on his own. Accordingly, since this was a case which involved issues of fact as to why the applicant was dismissed, and how the dismissal should be dealt with, the learned Chairman ought to have exercised his discretion in favour of sitting with two lay colleagues.

As to the third ground of appeal, Mr Hochhauser drew our attention to the classic formulation of the test in R v Gough [1993] AC 647 at page 670. (It is a passage which is well-known to the Employment Appeal Tribunal and does not need to be set out in this judgment.) Mr Hochhauser submitted that there were four questions which arose for consideration under this head:

(1) Should the Chairman have recused himself in any event?

(2) Was it correct to ask an unrepresented litigant to make a decision as to whether she objected to the Chairman continuing to hear the matter, and did the learned Chairman provide her with sufficient information and guidance in order to enable her to make a proper and fully informed decision?

(3) To what extent did Ms Chaffin actually agree?

(4) Having regard to the conduct of the proceedings as they unfolded, the extended reasons of the Chairman and the decision he reached, is it reasonable to conclude that to the objective eye, at the very least, there was an appearance of bias such that Ms Chaffin might reasonably feel that an injustice had occurred?

In relation to the first issue, Counsel rightly pointed out that, at the very least, by mentioning his acquaintanceship or friendship with Mrs Staines, the learned Chairman was thereby acknowledging the possible appearance of bias. The proper fulfilment of his duties, so it was submitted, because the applicant was unrepresented, was to provide her with sensible guidance to enable her to make an informed decision. Sir John Donaldson MR stated in Chilton v Saga Holidays plc [1986] All ER 841 at 844:

"The problem which arises where you have one represented party and one unrepresented party is well known to all judges and in particular to judges who deal with small claims in the county court. It becomes the duty of the judge so far as he can, without entering the arena to a point where he is no longer able to act judicially, to make good any deficiencies in the advantages available to the unrepresented party. We have all done it; we all know that it can be done and that it can be done effectively. That is the proper course to be adopted."

Mr Hochhauser says that in this case the learned Chairman failed to give any proper particulars of the nature or degree of contact between himself and Mrs Staines in the past. Secondly, to guide Ms Chaffin as to the normal practice in situations such as this. Reference was made to what Wood J had said in Halford v Sharples [1992] ICR 146 at 171:

"... when considering the desirability of a member standing down at the start of a case a rather less stringent test should be applied and unless the application is irresponsible, frivolous or wholly without content, it is infinitely preferable that an industrial tribunal should, where possible, be reconstituted so as to avoid any feeling of injustice."

Mr Hochhauser submitted that it was the tribunal Chairman's duty to encourage her to seek an adjournment or to give her adequate time to consider the question. Finally, that the learned Chairman failed generally to take account of the fact that she had never been to an Industrial Tribunal before, was unfamiliar with its procedures, and was inevitably nervous and somewhat intimidated.

Furthermore, and in any event, Ms Chaffin's consent could only have applied to the context of the case as she had perceived it to be at that time. In her affidavit she makes it plain that she thought that the only issue which was to be determined by the Industrial Tribunal was whether the disciplinary procedure was contractual. That was her understanding of the issue raised in the IT3. The question as to whether the Chairman should recuse himself was a question which was addressed by the Chairman before Ms Chaffin had had a sight of the witness statements of Mrs Staines and Mrs Smith, before she had had the benefit of hearing what Counsel had got to say as to her definition of the issues to be determined. Accordingly, in effect, Ms Chaffin never really consented to the learned Chairman deciding:

(a) whether the facts underlying her dismissal fell within the disciplinary procedure; and

(b) whether there had been compliance with those procedures.

Therefore, she never consented to the Chairman and the bias point was available to her.

In summary form, Counsel submitted that the learned Chairman ought to have recused himself on the facts of this case. What happened thereafter could reasonably have led the applicant to believe that indeed the learned Chairman was affected in favour of Wansbroughs by his contact with Mrs Staines. It was said that the finding that this was not a conduct dismissal to which the procedure applied, was obviously flawed. That the Chairman embarked on an enquiry which was wider than the pleadings permitted. The Chairman, inexplicably, concluded that the disciplinary procedure had, in fact, been satisfied when it should have been obvious that they had not been. The Chairman failed to exercise his discretion under s. 4(5) of the Employment Tribunal Act 1996 and he concluded, on the basis of this material, that there had been no breach of the applicant's contract of employment. Given that sequence of events, Counsel submitted that any reasonable observer who was unassociated with either party in the case, would have thought that Ms Chaffin did not received a fair hearing.

In an equally comprehensive submission, Miss Omambala submits to us that Mr Hochhauser has gone too far in his bias submission. She says that the tribunal Chairman is not under a duty to give advice to an unrepresented applicant, or respondent as to that matter; that he must remain even-handed throughout. It was correct for the Chairman to have invited the parties to say whether they objected or whether they wished the case to proceed. It would be wrong to suggest that the Chairman should have advised her that she should object, if that proposition was being advanced. The Chairman behaved properly by disclosing a connection with one of the witnesses in the case. He sufficiently outlined the nature of that connection and the parties were given a straightforward choice. They both chose not to take any point on the connection. Accordingly, the Chairman dealt with the case in a proper manner. If there was an obligation on the Chairman in the form of a duty to the unrepresented party, it would cause a breach of his duty to act in an even-handed way towards the other party. It was common ground that the test to be applied in the terms of the appearance of bias is objective rather than subjective.

Secondly, Miss Omambala submitted that the tribunal did not err in law in considering whether the circumstances of the dismissal fell within the dismissal procedure. She specifically raised that as an argument which would require evidence. No objection was taken by the applicant to her taking that course, no point was taken by the Chairman to indicate that it fell outwith the issues falling to be determined. This was, therefore, a question of fact for the tribunal to determine. Did the circumstances of the dismissal fall within the disciplinary procedure or not. The only way that the finding of fact can be dealt with on an appeal and overturned, is if the decision was obviously perverse.

As to the learned Chairman's sitting on his own, the respondents submitted that he did not embark on a fact finding enquiry as to whether or not the respondent had complied with its disciplinary and grievance procedure. Miss Omambala indicated that the learned Chairman was perfectly entitled to sit on his own. Nobody objected to him doing so. There were no other proceedings which might have been heard concurrently. There was an issue of law as to whether the relevant procedure was incorporated into the applicant's contract of employment, but there was no significant likelihood of a dispute arising on the facts making it desirable for the case to be heard by a three member tribunal. Therefore there were no grounds for interfering with the tribunal's exercise of discretion. He exercised his discretion in a proper way to sit on his own and was entitled to conclude that hearing having started and embarked upon it. Accordingly, the decision should not be overturned.

We have reached a very clear view in this case. We start with the allegation of bias.

It seems to us that one can divide the circumstances in which the court may have to disclose a connection with the case into two categories. Although by saying this, we are not intending to limit the responsibility on the Chairmen to make full and proper disclosure of any connection of any sort which might thereafter be thought to have influenced the way they arrived at their decision.

The first type of case is where it is undesirable that the legal officer should sit in judgment on the dispute between the parties because of its connection with the litigation (and we put that in general terms to include contact with the parties themselves, their witnesses or with the dispute itself). In such a case it would be the duty of the Chairman to recuse himself. For example, if the Chairman was related, albeit distantly, to one of the parties or, alternatively, to one of the witnesses who was to give evidence. That would be an obvious case where disclosure should be made and the Chairman should recuse himself. Preferably he should recuse himself before he ever gets into court. But there is a second broad type of connection where it might be appropriate to invite the parties to say whether either of them would object to him continuing to sit. Such a case might be where, for example, the judge has an indirect interest in the outcome of the litigation. For example, where he holds a few shares in a very large corporation which is party to the proceedings, where, for example, it could be said that the result of the decision in the case in question could affect the share price. In such a case if either of the parties objected, it seems to us, it would be his duty to recuse himself.

Miss Omambala suggested that there was a third category where the judicial officer reveals a connection but continues to sit despite objection. That seems to us not to be correct. If there is a connection which requires disclosure, then it seems to us that if either of the parties object, then it would be the duty of the legal officer to stand down.

We also accept that the way a legal officer should deal with matters of this kind, will be affected by the fact that one of the parties is legally unrepresented, particularly where, as here, not only was the respondent party a firm of lawyers with legal experience but also had the advantage of being represented by Counsel. It was, we think, important for the Chairman not simply to ask the applicant whether she had any objection, but to guide her about her approach to the question that was being put to her. She should have been told, for example, that occasionally connections were disclosed by the Court and where it would be not to her discredit at all if she were to say that she objected. She should have been encouraged to feel at ease in making that objection, if she had any doubts about the matter. Furthermore, in a case such as this it was important that the learned Chairman should make full and extensive disclosure of his connection with Mrs Staines.

During the course of argument it occurred to us that knowing one of the witnesses falls into the category of a connection which requires the tribunal to recuse itself without giving the parties the option of consenting effectively to him continuing to sit. The reason for that is that the nature of an acquaintanceship with a person is extremely difficult to define. It would require disclosure of the circumstances in which that acquaintanceship came about, the length of time of the acquaintanceship, and disclosure as to whether or not the judicial officer, so to speak, had an opportunity to form a view as to the reliability of that particular person. That would depend upon the nature of the dispute that was going to have to be resolved. In this case if it was not apparent straight away, it must have become quite apparent very shortly after the proceedings started that there was a dispute upon which a judgment might have to be made as to Mrs Staines reliability. If the acquaintanceship with her was such as to have led to the possibility that the learned Chairman had already formed a view about the witness' reliability, then he was not a person who was disinterested who should have been sitting in judgment on the facts of this case. The difficulty about cases where the judge knows one of the parties or one of the witnesses is that his perception of the acquaintanceship or friendship may be different from the perception of the witness or party concerned and because of the difficulty of defining its ambit. In this case we are quite satisfied that having regard to the fact that the applicant was unrepresented, the fact that the respondents were a firm of solicitors who were represented by Counsel, and having regard to the nature of the dispute between the parties, it was the duty of the learned Chairman to have recused himself in this case.

We wish to make it plain that in a case in the second category where it is perfectly proper to ask the parties whether they object, it is in our view the duty of the Chairman where one party is unrepresented, to make that unrepresented party feel, through guidance, quite entitled, without embarrassment, to make an objection. Chairmen should bear in mind that appearances in Industrial Tribunals may be a strange experience for the unrepresented party. They may never have been in a tribunal before, they may feel somewhat overwhelmed by what is happening, and may not fully understand the nature of the request which is made of them, particularly occurring, as it did, at an early stage of the proceedings. We are satisfied in this case that although there was consent given, she should not have been asked for consent, nor should she have been asked for consent in any event without having been given some helpful guidance as to how she could deal with the problem.

Accordingly, we are satisfied that justice has not yet been done between the parties. For that reason and for that reason alone, we would have been minded to have allowed the appeal. However, we can indicate that we are also of the view that the learned Chairman should have asked himself whether the applicant was in a position to deal with the way Miss Omambala was going to present the case on behalf of the respondents, having regard to the limited nature of the dispute on the IT1 and IT3. He should have been alert to the possibility that the nature of the proceedings is different from that which the unrepresented party had contemplated. In any case, it seems to us that he should then have asked himself whether it was appropriate that he should continue to hear this matter on his own, bearing in mind that the sort of questions with which he was concerned are precisely the sort where the lay members have an important contribution to make; that is, the nature and description of conduct and the question as to whether the procedure had been applied properly. Thus, we also consider that the Chairman was ill-advised to continue to sit on his own.

As to the finding by the learned Chairman that the personality clash was not "an offence under the disciplinary and grievance procedures", it seems to us manifestly clear in this case, having regard in particular to the terms of the IT3 and the surrounding correspondence, that this applicant was dismissed because it was perceived by her employers that she had not conducted herself in a manner which accorded with their requirements and expectations. Whether her behaviour was attributable to "a personality clash" is not of pertinence. She was being accused of misconducting herself in the course of her employment so as to damage personal relationships in the team. If the conclusion of the employers was that she was not at fault in any way, no doubt the other members of the team with whom she was said to have clashed would or might have been dismissed. This an obvious case of a dismissal due to conduct, as we see it. Accordingly, the finding that the disciplinary procedure did not apply to the circumstances of the dismissal can only be described as perverse. It caused the reaction in the Employment Appeal Tribunal of the sort that Miss Omambala suggested we would not have, namely "my goodness gracious me, this decision is surprising!"

Accordingly, we allow the appeal. It seems to us that there is only one issue to be determined in this case, namely has the applicant suffered any damage as a result of the employers' failure to comply with the disciplinary procedure which applied to the circumstances of her dismissal. That is an issue which must be determined by the full Industrial Tribunal comprising of lay members and will involve or might involve some difficult issues. Accordingly, the matter will be remitted back for that limited purpose. We substitute for the Industrial Tribunal's decision a finding that there was breach of contract in the dismissal and that compensation must now be assessed.