United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR TIM DRACASS (of Counsel) Messrs Warner Goodman & Streat Solicitors 89 College Place London Road Southampton SO15 2FF
For the First, Second and Third Respondents For the Fourth Respondent	MR SEAN JONES (of Counsel) Messrs Bond Pearce Solicitors Town Quay House 7 Town Quay Southampton SO14 2PT THE FOURTH RESPONDENT NEITHER PRESENT NOR REPRESENTED


 


MR JUSTICE HOOPER: This is an appeal from the decision of the Employment Tribunal sitting in Southampton on 13th November 2000 that the hearing of the appellant's applications complaining of race discrimination and victimisation continue to take place in the Southampton Region. The appellant is a lecturer in mathematics at Southampton University and he makes claims both of race discrimination and victimisation against the University in respect of the manner in which the University has conducted itself towards him as a member of the teaching staff of the University. The hearing is due to start this Monday and is scheduled to last for some ten days. We have been told that there are 17 lever arch files.

1. One of the many issues that will have to be resolved at the hearing concerns a series of events which led to the University asking the appellant to sign a performance agreement. The University had expressed considerable concern about the conduct of the appellant. It is not necessary for us to go into any detail regarding those concerns. There came a time when it appears that the Union, the AUT, through a Ms Cheeseman strongly recommended to the appellant that he sign the agreement. It appears that the suggestion of an agreement came originally from Ms Cheeseman. Some of the background is set out in an email dated 17th April 2000 sent to the appellant by the AUT. It reads as follows in part:

"As stated by both Roger and me [Ms Cheeseman] at our meeting on Friday we believe by entering into this agreement both sides are looking to draw a line under the past episodes and move to the future. AUT recommend that you accept the performance agreement."

On 22nd May 2000 Ms Cheeseman wrote to the appellant:

"Further to my letter of 17 May it is apparent from the grievance you have lodged with the Vice-Chancellor that there might be some confusion within the University as to how and why the performance agreement was drawn up.

At my suggestion AUT and the University negotiated the agreement in order to move the confrontational atmosphere and processes into a supportive mode with no admittance of fault on either side. This negotiation included a meeting between you, Roger Ingham and myself during which we tried to explain that the possible outcome of the disciplinary investigation could well be a hearing with a warning on future performance. Following that meeting further amendments requested by you were agreed by the University and incorporated. I then sent the amended document to you with a strong recommendation from Roger and myself that under all of the circumstances it was the best way forward. Your unilateral response to reject it came as a disappointment to both of us."

Following that rejection, the appellant was the subject of disciplinary proceedings and we are told that they concluded with a resolution in his favour.

2. In the case before the Employment Tribunal the appellant submits that by requiring him to sign the letter, the University was motivated by racial discrimination and also was victimising him for the complaints that he had been making.
3. There is no intention on the part of either the respondent or the appellant to call Ms Cheeseman to give evidence. Ms Cheeseman sits as a member of the Employment Tribunal in Southampton. As a result probably of some communication from her to the Employment Tribunal, the Regional Secretary of the Tribunals sent to the appellant's solicitors and to the respondents' solicitors a letter to the following effect:

"The Regional Chairman has been notified by one of his lay members, Ms Christine Cheeseman, that she had in the past advised the Applicant and it may be possible that either the Applicant or one of the Respondents is contemplating calling Ms Cheeseman as a witness. If this we were the case, it will be necessary to have the hearing transferred outside the Southampton Region. I will grateful if you will kindly let me know as soon as possible whether it would be your intention to call Ms Cheeseman to give evidence."

4. Notwithstanding that she was not going to give evidence, the appellant made the application the subject matter of this appeal to have the hearing removed from the Southampton Region.
5. In giving his decision, the Chairman, Mr Edwards, noted that Ms Cheeseman was not being called to give evidence and went on to say in paragraph 5:

"I note that it is not unusual for part-time Chairmen to be involved in the preparation of cases and similarly other lay Members from time to time have involvement in cases, and do not actually attend to give evidence."

He then went on to say in paragraph 6:

"The mere involvement in a case, without more, is not, in my view, a necessary reason for the transfer of a case out of the Region."

In paragraph 7 he went on to consider the balance of convenience to the parties. He noted that there were a large number of witnesses which the parties intended to call, possibly as many as 20. Those witnesses are based at Southampton University which is only a short distance from the tribunal office. The Chairman then, understandably, refers to the inconvenience which the witnesses would suffer if the case had to be moved. We have further been told that if it were not to be heard on Monday, that would cause considerable inconvenience particularly to the respondents' witnesses.

6. Criticism is made by Mr Dracass of the reference to the balance of convenience. It is submitted by Mr Jones that having decided that there was no question of bias in the case, then the Chairman was entitled to go on and consider whether, on the balance of convenience, the case could be in any event be moved out of Southampton. We do not need to resolve that issue for reasons which will become clear.
7. Mr Dracass has argued today that a close analysis of what is going to happen during the hearing indicates that it would be quite unsatisfactory for this case to be heard by members of the Southampton Employment Tribunal. At one point he seemed to suggest that the fact that Ms Cheeseman was a member of the tribunal would prevent the matter being heard at all, but he quickly and sensibly withdrew that.
8. Although Ms Cheeseman is not going to give evidence, Mr Dracass submits that her credibility, to use his words, is going to be important in the case. The tribunal will have to decide (amongst other things) whether or not the University was motivated either by racial considerations or by some desire to victimise the appellant that it asked the appellant to sign the letter. It is, so Mr Dracass argues, inevitable that the respondent will be saying to the tribunal "How can this be discrimination or victimisation? The idea for, and much of the contents of, this agreement, came from Ms Cheeseman and the AUT?" To put it another way "How can this be discrimination/victimisation when as one can see in the correspondence Ms Cheeseman strongly recommended that the appellant sign the document and indeed, as we have seen, expressed her disappointment that he had refused to do so." Mr Dracass then submits that the appellant will have that point put to him. He will then have to say, because he refused to accept her advice, that her advice to him to sign the agreement coupled with the strong recommendation was erroneous. It was advice, so he would have to say, that she should never have given.
9. Mr Jones submits that those are not realistic issues in the case. He submits the only issue is the attitude of the University towards this appellant in requiring him to sign the agreement.
10. We take the view that Mr Dracass is right. Whether it arises in precisely the way which he forecasts, we unanimously take the view that it is inevitable that the fact that Ms Cheeseman suggested the agreement and strongly recommended the appellant to sign it, will be a factor which the tribunal may well wish to take into account in deciding whether or not the University has behaved in the manner of which complaint is made.
11. We apply the test in The Director General of Fair Trading v Proprietary Association of Great Britain and another - unreported – 21st December 2000 (C.A.), namely, whether in the light of the findings which we have made as to the relevant circumstances, a fair-minded and an informed observer would conclude that there was a real possibility or real danger of the tribunal being biased if the members of the tribunal have had an opportunity through personal contact with her to assess her capabilities. We are unanimously of the view that he would so conclude.
12. We have, of course, to decide whether or not the Chairman reached a decision which was one that he was reasonably entitled to reach. It may well be that this case has been argued more fully today than it was at the time. It may be that it is now far clearer why the role that Ms Cheeseman played in these matters may be of significance. It is interesting to note that in the letter of 18th August 2000 it was accepted that if it was necessary for her to give evidence then the case would have to be moved. Although she is not giving evidence her judgment as to whether or not she should have suggested this agreement as a way of resolving problems, and whether or not she should have strongly recommended it, is likely to be an issue in the case. It also came clear this morning that it may well be that there will be an issue of fact as to whether Ms Cheeseman proposed a particular term or whether the University did. Mr Jones acting, if we may say so, most responsibly, brought that to our attention. That gives us further concern.
13. Mr Jones has asked us to resolve the matter today because of the nature of the hearing starting on Monday. We have considered whether it would be appropriate at the start of hearing on Monday to make the necessary enquiries of those who are sitting on the tribunal as to whether or not they have had personal contact with her enabling them to form views as to her judgment and credibility, views which could consciously or unconsciously affect their decision.
14. Given Mr Jones' concern given the understandable concern that this matter ought not to be left over to Monday and given our concerns that it may not actually be possible to find a tribunal made up of members of the Southampton Employment Tribunal who do not have the contact to which we have referred, we have decided that the case should not be heard by any member of the Southampton Employment Tribunal.
15. It does not follow that the case should not be heard in Southampton. As Mr Dracass, fairly conceded, the case could be heard in Southampton provided it is not heard by those members of the Southampton Employment Tribunal.
16. We allow the appeal to this extent: the case ought not to be heard by members of the Southampton Employment Tribunal, but that would not necessitate removing the hearing from Southampton.