United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANTS


 


MR JUSTICE CHARLES:

1. The parties to this Appeal are Dr Ghosh and Dr McCollum who were the employers and a Ms Tilmouth. The matter comes before us today by way of preliminary hearing. Dr Ghosh, who has been the spokesman for the employers has written inviting us to deal with the matter on the papers, because of difficulties he has in leaving his practice.
2. The Appeal is against the decision of an Employment Tribunal sitting in Newcastle. The extended reasons were sent to the parties on the 5 July 1999 and the decision of the Employment Tribunal was that the Applicant's complaint of wrongful deduction from wages was well founded, and the Respondents were ordered to pay the Applicant £425.73, the sum so deducted. The issue before the Employment Tribunal appears from paragraph 5 of the extended reasons which are in the following terms: -

5. "It was common ground in this case that within her wage for the month of October 1998 the applicant had been paid by the respondents the additional gross sum of £60.37 (£39.58 after deduction of income tax and National Insurance contributions). It was further agreed between the parties that no part of this additional sum had been paid during any of the months which followed and up to her dismissal by the respondents on about 31 May 1999. The issue in this case was whether this additional payment had been made, as the applicant maintained, as a monthly pay rise which the respondents almost immediately rescinded because she would not sign a new written contract or, as Dr Ghosh maintained, as a one-off lump sum bonus intended as a mark of gratitude and made possible by a temporary reduction in the respondents' overall wage bill".

3. The extended reasons are closely argued and reasoned, and in paragraph 6 the Employment Tribunal set out their approach in the following terms: -

6. "As we heard this case, it became apparent that the applicant did not seek to place before us direct evidence in support of her position but asked us to infer from all the circumstances, including and in particular that which Dr Ghosh had since stated, that hers was the correct interpretation of the facts. In this respect, the case was similar to one in which discrimination is alleged. When deliberating in the matter, we considered that – as with a case of alleged discrimination – we should first reach our primary findings of fact and, having done that, should then determine such inferences as ought to be drawn from those findings".

4. Given the stance of the parties, it seems to us that this was a correct approach for the Employment Tribunal to adopt. Their conclusion is expressed in paragraph 8 of their extended reasons. At the end of that paragraph they said this: -

8. "We found this a very difficult case but on balance, and particularly bearing in mind that which Dr Ghosh had written at the time, we were satisfied that this payment of £60.37 must have been intended as a monthly pay rise when it was awarded to the applicant in October 1998 and that the true position was that subsequently, when she proved unwilling to sign a new contractual document which was urgently required by the health authority, the respondents changed their minds and purported to withdraw it".

That is a finding of a fact which the extended reasons show clearly is based on the oral evidence of the parties and the contemporaneous documentation.

5. Dr Ghosh sought a review of the decision of the Employment Tribunal, the extended reasons refusing such review were sent to the parties on 15 July 1999. Again the extended reasons are full and well argued, and the matters raised on review, reflect the matters raised on this Appeal.
6. As I have said, we have been asked to deal with this matter which comes before as by way of preliminary hearing on the papers, and in doing that we take the Grounds of Appeal from Dr Ghosh's letter, which is dated the 23 September 1999 and reflects the Notice of Appeal.
7. The first ground is headed "Justice which is legally and politically correct". This ground relates to the fact that, one of the members of the Employment Tribunal was a UNISON member. Paragraph 3 of the extended reasons shows how this was dealt with before the Employment Tribunal, and is the following terms: -

3. "At the commencement of the hearing, both parties were informed that one of the members of the Tribunal was a life member of UNISON, albeit through working not within the health service but in local government (and involvement with NALGO) and now retired from employment. The parties were invited to consider the matter and to state their positions: both Dr Ghosh and Mr Blackburn informed the Tribunal that they had no objection to that member remaining part of the Tribunal and the Tribunal remained as originally constituted".

8. The matter is also dealt with in the extended reasons relating to the review in the following way: -

"In his letter dated 9 July 1999, Dr Ghosh alleged that the decision was wrong and that the hearing was not conducted in an unbiased way. In support of that contention, he raised five matters. First, he referred to the fact that he was "told after the hearing started that one of the members was a UNISON member" and said that he had not had any option other than to agree that the case continue as he had taken a day off from his busy surgery commitments. We referred to this matter in the third paragraph of our Extended Reasons. The information was given to the parties before, not after, the hearing had started although of course the Tribunal had convened. I explained that the member concerned was now retired from employment and was a life member of UNISON through working in local government rather than the health service. I also pointed that the member concerned had no knowledge of any of those involved in the case. Both parties were given ample opportunity to raise any objection. If they had done so, some other arrangements would have been made. Both Mr Blackburn and Dr Ghosh were extremely quick to state that they had no objection at all".

9. It will be apparent from what I have just said that this ground of appeal is a bias point. We are aware that the Court of Appeal have recently heard a selection of cases raising points relating to bias based on the interests, or position, of a judge or a Tribunal member. So far as we are aware, judgments in those court of appeal cases which will, we believe, provide guidelines have not yet been delivered.
10. Also, as we understand it, those cases have at least in part been triggered by the Pinochet case which unsurprisingly is a case upon which Dr Ghosh seeks to rely. We have considered whether or not we should await the judgments in those Court of Appeal decisions, but have decided that there is no need for us to do so. It seems to us that applying the established tests in respect of bias set out in the Pinochet case in the House of Lords, the Gough case in the House of Lords, and the Peter Simper case in this Tribunal, that this is a case in which Dr Ghosh is doomed to failure.
11. The announcement of the connection or interest was made at the beginning of the hearing, both parties consented, the only connection or interest was the fact that the member of the Tribunal was a member of UNISON and it was made plain that he knew none of the parties and indeed that his connection with the Union did not arise from any service in the health service. It seems to us that an objective test (or indeed on the facts of this case a subjective test) as to whether there was bias, or apparent bias, would lead to the clear conclusions (a) that there was no bias, or apparent bias, and (b) that the relevant member of the Tribunal had no interest that would lead anybody to think that the matter would not be heard fully and fairly by him as one of the members of the Tribunal. For those reasons in our judgment this head of appeal raises no reasonably arguable point of law.
12. The other heads in Dr Ghosh's letter are headed "Evidence under oath", "Natural justice ie. common sense justice" and "Extra pay in October 1998", we propose to deal with these points together and to deal with them quite shortly. This is because the matters raised under these headings are all attempts by Dr Ghosh to reargue the factual case that was heard before the Employment Tribunal. It is plain that Dr Ghosh does not agree with the conclusion of fact reached by the Employment Tribunal but in our judgment the matters he raises under these headings are simply attempts by him to reargue the facts. The Employment Tribunal is the fact finding body. Our jurisdiction is limited to considering points of law that are reasonably arguable and in our judgment these three headings raise only points of fact and therefore do not raise any points of law that are reasonably arguable.
13. Accordingly in our judgment this appeal does not raise any points of law that are reasonably arguable and it is therefore dismissed.

Addendum

14. After we dealt with this case the judgment of the Court of Appeal in the cases referred to in paragraph 9 above was published in the Times on 19 November 1999 (one of the cases was called Locabail UK Ltd v Bayfield Properties Ltd). In our judgment the approach and conclusions of the Court of Appeal in that judgment confirm our conclusion set out in paragraphs 10 and 11 above.