United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J SYKES (Representative) Employment Cases Direct 8 Bloomsbury Square London WC1A 2LP


 


THE HONOURABLE LORD JOHNSTON

1. This is a preliminary hearing into the appeal by the Appellant against a finding of the Employment Tribunal that he had been fairly dismissed by his employers, the Respondents whom he had served for a period of nine years without a blemish on his employment record.
2. The background to the matter, without going into any length, was that having apparently a number of grievances as to the way in which certain members of staff had been treated by the employer. The Appellant circulated a letter to a number of people, including some of prominence, and putting it simply, did not go down the track of the recognised grievance procedure which would have involved involving line management and the internal complaints system.
3. The employer convened a disciplinary hearing which was undertaken by two senior members of the employer's staff, one of whom, Mr Wright, the Warden of the London House institution, had only been employed for about six weeks. The Employment Tribunal, having considered the matter, determined the issue on paragraph 30, page 31 of their Decision, where they list the reasons why they consider the employer acted fairly, and we simply do no more than refer to them at this stage.
4. The main submission by Mr Sykes, who appeared on behalf of the Appellant, was that the Tribunal had misdirected themselves, not least in relation to the Burchell test, as taken from the well known case of British Home Stores Ltd -v- Burchell [1978] IRLR 379, inasmuch that he said what, first the employer and secondly the Tribunal, should have done was to look at the substance of the grievances that were being circulated in the letter, and determine by reference to them, whether or not the conduct of the employee, the Appellant, was as outrageous as apparently the Respondents determined it to be. This, he said, meant that the Tribunal had not properly applied the second part of the Burchell test to determine whether or not the employer had acted reasonably, and therefore their decision was flawed.
5. Dealing first with that argument, we consider that it has no substance. It is important to hear in mind that the first stage of the Burchell process deals with investigation, but becomes irrelevant if there is an agreement or a complete understanding as to the facts which led to the basis for dismissal. The second half of the test still has to be applied, namely whether the employer acted reasonably in all the substantial merits of the case in dismissing. We are entirely satisfied that in the present case the Tribunal did apply its mind to that question and upon the reasons given, we consider this was a decision that they, the Tribunal were entitled to reach, and thus it is one with which we will not interfere.
6. However a wholly different matter was raised by Mr Sykes before us which is shadowed in the Notice of Appeal in paragraph 6.5.1 and 6.5.2. Without rehearsing the detailed submission, it was to the effect that the Appellant did not get a fair hearing from the employer, firstly because (and this is not featured in any way in the Tribunal's findings) a senior employee of the employer Respondent apparently wrote, so Mr Sykes told us, to the Tribunal members in advance of the hearing indicating the view of the employer, namely that this conduct was outrageous and worthy of instant dismissal. This, it was said, was bound to prejudice the mind of the employees, however senior, conducting the appeal, not least that of Mr Wright, since he was a relatively new employer. In any event, he submitted that this was a close-knit organisation, everybody knew everybody else, and the likelihood, at least on the face of it, of the Appellant getting a fair hearing conducted by employees working in the same institution as that level was very uncertain.
7. We emphasise that we approach this question not by reference to the Human Rights Convention or Article 6 thereof, but rather on the simple, fundamental and long established rules of law that, in any quasi judicial position or situation, both parties, and particularly the party who is being investigated, namely the Appellant, is entitled to a fair and unbiased hearing, and that is to be judged not by whether or not, in fact, any bias was operated, but, more, whether, looked at objectively, bias could be seen to have the opportunity to exist, and if there was any doubt about that, the recent House of Lords cases and Court of Appeal cases on this whole question as summarised in Locabail, particularly by Lord Woolf, have put the matter beyond doubt.
8. The difficulty we have, of course, is that as Mr Sykes recognised, there are gaps in the Tribunal's recording of the evidence and argument and reasoning, if the matter had proceeded along the lines that he maintained it did.
9. In view of the fact that we are persuaded that if what is being said to us is representative of the position that was tendered before the Tribunal, and not considered by them, would raise a very serious question, we consider the appropriate thing to do, in the interests of justice, is to send this case on to a full hearing on the issue of bias only and, at the same time, remit back in the interim, to the Chairman of the Tribunal, to determine by reference to notes made by her at the time as to whether or not this question of bias was addressed in evidence or addressed in argument. On the basis of what answers are determined to those questions, the full hearing will be able to determine on a proper basis whether or not there is substance in this point.
10. In these circumstances, this case will be allowed to proceed to a full hearing on that matter only.