United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S DEVONSHIRE (of Counsel) Messrs Donne Mileham & Haddock Solicitors 100 Queens Road Brighton East Sussex BN1 3YB


 


JUDGE COLLINS:

1. This is an appeal from a decision by an employment tribunal at London South, the reserved extended reasons being promulgated on 8 November 1999, reviewing and revoking a decision which they had promulgated on 27 May of that year. By the earlier decision they had dismissed complaints by all three respondents alleging sex discrimination in relation to an appointment at the London Borough of Croydon. The hearing had taken some 4 days before the tribunal.
2. After they had announced their decision, the tribunal asked the local authority's solicitor to stay behind. They told him that they took a dim view of the fact that the local authority had placed obstacles in the way of employees attending the tribunal to give evidence. It was unfortunate that tribunal decided to have that conversation because in the absence of the respondents or their representative it was obviously open to misunderstanding. The respondents launched in parallel an appeal against the decision and the application to review. The flavour of the applications will not be unfamiliar to those who have encountered their lay representative in relation to other proceedings, as this constitution of this tribunal has earlier today. We ought to mention that the third respondent Mr Slack has been debarred from defending this appeal. The others have not attended to support any of the allegations which were made against the tribunal and Mr Kuttapan, their lay representative, although he was here this morning in relation to a case of his own, has not stayed to represent Mr Aldridge and Mr Thomas this afternoon.
3. It is alleged that the tribunal was very seriously lacking in honesty, integrity, impartiality and sense of responsibility. They were accused of bias and prejudice against the respondents and the decision of the tribunal is said to have been absolutely unfair, unlawful, perverse, biased and unjustifiable - the kind of scurrilous and baseless remarks which gave no assistance whatsoever to the respondents in the conduct in their case. But in particular attention is drawn to the conversation which I have mentioned and it is suggested that that meant the essential justice of the hearing was vitiated. These allegations gave the members of the tribunal great anguish; it is impossible for anyone to read the reasons which they promulgated on 8 November 1999 without being aware that the members of the tribunal found themselves very personally touched by these intemperate remarks and challenges to their integrity. In an extremely careful and considered judgment they went through every single allegation which had been made against them. It was an embarrassing procedure for them to have to go through in relation to their own conduct. They averred that there was simply nothing in the allegations which had been made.
4. Having concluded after much introspection that there was no aspect of the case in which they were anything less than impartial, honest and unbiased they said at paragraph 25 :

"However, we have seen affidavits sworn by the Appellants testifying upon oath that they believe the Tribunal had private and confidential dealings with the solicitor for the Respondents and whilst we knew that to be untrue, we must accept that three people hold that view. They believe they have not has a fair and impartial hearing and in these circumstances we revoke our decision and order a fresh hearing before a new Tribunal – to be listed as soon as possible."

5. We understand and sympathise with the approach of a tribunal who thought that the evil of allowing their decision to stand while there was a question mark over their impartiality was greater than the evil of adjourning the case for a rehearing.
6. Mr Devonshire who appears for the local authority has drawn our attention to a number of authorities, none of which deal directly with the point. This is an unusual case, in that the facts on which the tribunal relied to revoke their previous decision, only occurred after they had announced their decision in open court. None of the authorities cited deal directly with this situation. The closest which Mr Devonshire has been able to find was the decision in Greenaway Harrison –v- Wilds (1994) IRLR 380, a decision of this tribunal. It was a case where after the industrial tribunal had given its decision the Chairman is alleged to have said to other members, words to the effect of 'that will teach them not to settle when I told them' and it was suggested that that indicated bias and a lack of impartiality. This tribunal determined after looking at the authorities, that there had to be a finding of real danger of bias on the part of a Chairman and they were simply unable to draw that inference.
7. In our judgment if the tribunal had asked themselves if there was a real danger of bias presented by the facts, they would and should have concluded that, first, since the matters they were criticised about arose only after they had announced their decision in open court it could not impinge on the essential integrity of their decision and second, since the true facts had been stated that should have been sufficient to dispel the respondents concerns. The matter mentioned in private to the local authority's solicitor was in fact a matter where the tribunal were critical of the local authority and no one has ventured to suggest that anything other than that was mentioned. In those circumstances, although we understand why the tribunal came to the decision it did, we think that they were wrong. We do not think that there was material which justified them, in the interests of justice, in reviewing their decision. They should have taken the view that if their decision was to be attacked at all on grounds of real or apparent bias, it should be done by way of appeal to this tribunal.
8. That appeal is current and has not been disposed of; we say no more about it. In the circumstances we allow the appeal against the review decision which will mean that the tribunal's original decision of 27 May 1999 will be restored.