United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr D Daly ELAAS


 


JUDGE PUGSLEY:

1. In this case, the Appellants are represented by Mr Daly, who is appeared under the ELAAS, and we are grateful for the dignity and professionalism of his submissions to us.
2. The Ground of Appeal in essence are the Tribunal, in particular the Chairman, was biased in his approach to the Applicant. The position as is set out in the grounds for alleging bias set out a number of particular instances which is as said show bias against the Applicant's in the case. Said that: -

2.1 "the Respondent's witnesses were permitted to read from their statements whereas the Appellant's witnesses were not"

2.2 the Appellant's witness was told he should remember what he had written, whereas this was not said to the Respondent's witness.

2.3 The Chairman constantly interrupted the cross-examination of the Respondent's witnesses, whereas this was not the case with the Appellant's witnesses.

2.4 The Chairman refused to permit questioning save as to race, whereas other issues were important to establish the credibility of the Respondent's witnesses

2.5 The Appellant's representative accused the Respondent's witnesses of falsifying documents and she and the Appellant were sent outside to "rethink the accusation". The Appellant should have been allowed to put his case to the Respondent's witnesses, particular when credibility was a crucial factor in the case. The Respondent's representative was not prevented from presenting his case

2.6 The Respondent's representative was allowed to present new documentation to the Employment Tribunal on the second day of the hearing, 24 March 1998 without the Appellant being afforded a proper opportunity to look at it and consider its implications, and in the light of the Chairman's remarks on the first day of the hearing that he would not admit further papers

2.7 On the third day of the hearing, the Appellant was not given an opportunity to question Mr Harvey, the Respondent's Personnel Officer, or to raise further points in evidence concerning the documents adduced on the second day of the hearing.

3. The Chairman constantly interrupted cross-examination of the Respondent's witnesses and told to accept the first answer given. This was not the case when the Appellant had been cross-examined.

3. We say right away, that, it is part of the human condition that we all make mistakes. That we all say things that, on reflection, that could have been more aptly expressed. It would be unrealistic to look for absolute perfection in any walk of life. Those who hold judicial office can be tired, can be bad tempered just like any other member of the community. The reality is at the end of the day when you look at it, was the decision just? And was there an appearance of justice to any impartial observer?
4. The decision in our view as stated does not disclose any bias. It is not a decision where we can see a predisposition to ignore one case and to sympathise with the other party irrespective of the evidence and arguments before it.
5. The first decision drew an affidavit from the applicant and that was sent to the members as well as the Chairman. It is right to say, that the Chairman's reply was brief. He says this: -

"The Appellant was treated with every consideration by the Tribunal and given ample opportunity to present and call evidence. It will be apparent from the Extended Reasons that we formed an unfavourable view of Mr Uguarti's evidence.

I do not wish to comment further save to emphasise that there were no irregularities. In so far as the Appellant alleges impropriety on my part I reject his claim both false and malicious".

The lay member Ms Ann Brown wrote in support that:-

"Most people would have found Mr Uguarti's behaviour at the hearings unacceptable and the Chairman was incredibly patient, tolerant, respectful and courteous of both Mr & Mrs Ugarti".

Mr Reid the other member wrote: -

"Despite not having my notes of this case I can recall it quite well as the applicant was represented by Mrs Uguarti who despite undoubtedly preparing herself for the case had great difficulty in preventing the Applicant from interjecting during her cross examination.

He wrote in support and he concluded: -

"I totally reject this claim and I consider it both false and malicious. The Tribunal considered all the evidence in a fair and unbiased manner and came to a unanimous decision based on the facts as presented to it".

6. Thereafter, the Appellant's grounds came before this court on the 16 June, and Mr Justice Charles and together with Mr Chadwick and Ms Switzer, ordered that the further grounds be submitted. The Chairman and members, the Chairman answered the grounds in fairly global terms, his answer short letter concludes: -

"His tendency to accuse others of conspiring against him and his refusal to accept any responsibility for his own short comings in the teeth of straight forward evidence is I suggest apparent both from his original claim, his conduct since the decision was promulgated and his present appeal. Since you ask me to comment, and it is not a comment I would make lightly or indeed would feel it appropriate to venture normally, I am forced to the conclusion that the present appeal is motivated by malice or delusion.

For the avoidance of doubt I transverse all the applicant's grounds seriatim".

7. I think for the avoidance of doubt transverse should be traverse, but it is a rejection of the criticisms. Ms Brown repeats her earlier view: -

"that the Chairman was very patient, tolerant, respectful and supportive of …Mr Uguarti".

8. Mr Reid now deals in that he can with a specific allegations the high watermark matters upon the appellant relies is that at 2.6 says: -

2.6 "The Respondent did present new documentation on the 2^nd day of the Hearing. The Appellant was given a copy of the documentation but it may be that as the Appellant was not legally represented insufficient time was afforded for him to consider the fresh evidence".

9. It is right to say that he then repeats the difficulties that Mrs Uguarti had in the case, and in cross-examining and concludes: -

"On these occasions Mr Ash behaved in a professional and judicial manner by the use of timely and appropriate questions or rulings".

10. Mr Reid does give some support to the allegation in ground 2.6. We note, from the grounds alleging bias a subsequent allegation 2.7 is that, on the third day the Appellant was not given an opportunity to question a Mr Harny or to raise further points of evidence concerning the documents produced on the second day of the hearing. Mr Reid was unable to comment on this. The reality is that there was a third day of hearing.
11. As we indicated on an earlier occasion we are well aware that in the conduct of any hearing, there may be matters where the Chairman or member does not get it completely right, they may perhaps with hindsight wish they had intervened more or less. At the end of the day we are totally satisfied this Tribunal hearing was conducted fairly, and we are quite satisfied that it had the appearance of being conducted fairly, justice was done, and seen to be done.
12. We do say for the general guidance, that we find it more helpful if it is possible if those against whom criticism made do actually deal with a specific as opposed to merely a generalised rejection of the allegations. If we may gently say so, those who hold judicial office, whose task it is to make criticisms of others, may be somewhat inhibited in the use of the word malicious to stigmatise those who disagrees with their position. They may be wrong, they may be misguided; they may be obsessive but it may be wiser not to stigmatise them for their view. Overall we cannot see any arguable grounds and the appeal is dismissed.