United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	The Appellant in person


 


MR RECORDER BURKE QC

1. This is the preliminary hearing of an appeal by Mrs Affleck and Mr Close against the decision of the Employment Tribunal sitting at Newcastle, chaired by Mr Hildebrand and sent to the parties on 26 April 2000. By that decision the Tribunal dismissed two claims or sets of claims before it in which Mrs Affleck was the Applicant, and one claim before it in which Mr Close was the Applicant.
2. Mrs Affleck's first claim was that she had been the victim of sexual discrimination which had occurred when she was suspended from her employment by Newcastle Mind on 10 February 1995. Her second claim was one of unfair dismissal, unlawful deduction from wages and breach of contract, arising later in 1995.
3. Mr Close originally claimed that he had been unfairly constructively dismissed by Newcastle Mind, but he withdrew that complaint. His surviving complaint was that he had been the victim of sexual discrimination between February and April 1995, at the start of which period he was suspended from his position of Director of Newcastle Mind and during which period he was so treated as to force him to resign from that position.
4. There was a long and chequered interlocutory history to these three claims before they came to be heard substantively, on their merits, by the Employment Tribunal whose decisions are now the subject of the present appeal. Much of that history involved questions as to who were the appropriate Respondents to the claims, and in particular, who were the employers of Mrs Affleck and Mr Close at the relevant times. Newcastle Mind, for whom, to use a neutral expression, Mrs Affleck and Mr Close worked, was an unincorporated charity; and thus the ascertainment of the correct individuals who would be responsible for any liability was not straightforward. It was eventually the case, after hearings in the Employment Tribunal and a decision of this Employment Appeal Tribunal, chaired by the then President, Mr Justice Morison, that there were no less than eleven Respondents to Mr Close's claim and Mrs Affleck's first claim, and nine Respondents to Mrs Affleck's second claim.
5. The complexity of these proceedings and the various interlocutory steps were such that, although the relevant events took place in 1995, the hearing of the complaints on their merits did not start until 27 September 1999. That hearing was intended to last for ten consecutive days but was not completed in the time allotted and required a further four days in January 2000, the last of which was 20 January.
6. The Tribunal consisted of a Chairman and two members, all of whom were strangers to Newcastle; this was arranged, no doubt, because of the height of feelings arising from the collapse of Newcastle Mind and the presence of Newcastle upon Tyne City Council as a Respondent to the claims. In the course of the interlocutory proceedings, there was a hearing in February 1998 before a Tribunal consisting of Mr Rich, sitting alone. According to the decision of the Tribunal against which the present appeal is brought, the purpose of that hearing was to decide whether the Respondents, named up to that point, should continue as Respondents.
7. On 16 February Mr Rich held that the employees of Newcastle Mind were employed by all the members of that charity, and dismissed from the case all Respondents other than Newcastle Mind itself, the City of Newcastle and Mr Metcalf, (who was an employee of the City of Newcastle). Having thus decided, Mr Rich went on to consider whether the City of Newcastle and Mr Metcalf should remain as Respondents.
8. Before turning to his decision on that issue, we should mention that the Employment Appeal Tribunal, on 13 April 1999 reversed the decision made by Mr Rich on 16 February 1998, and held that the employers of the Applicants were the members of Newcastle Mind's Executive Committee for the time being.
9. The issues before Mr Rich in relation to Mr Metcalf and Newcastle City Council arose from the submission of Mrs Affleck and Mr Close that Mr Metcalf had so involved himself in the affairs of Newcastle Mind, before and during the period relevant to the complaints, that, in effect, he and his employers had taken over from Newcastle Mind as the employers of Mrs Affleck and Mr Close. It can clearly be seen from paragraph 15 of Mr Rich's decision, which we have considered at length, that he also had in mind an issue as to whether Mr Metcalf was an agent of Newcastle Mind so as to render Newcastle Mind or those liable for it, as vicariously responsible for sex discrimination pursuant to section 41 of the Sex Discrimination Act 1975, and whether, if Mr Metcalf was such as agent, Newcastle City Council became an agent of Newcastle Mind by virtue of its vicarious responsibility for Mr Metcalf.
10. In order to determine these issues, Mr Rich heard a great deal of evidence about what Mr Metcalf and others had done in the relevant period; the evidence lasted over more than four days; the decision deals in detail with that evidence and makes numerous findings upon it. It is clear that Mr Rich was critical of Mr Metcalf, in particular, in various respects.
11. However it is important to note that, for the purposes of Mr Rich's decision, or the decision of the Employment Appeal Tribunal, as to the correct Respondents to the three claims, it was unnecessary for the Tribunal to make findings as to whether any of the Respondents had behaved well or otherwise, or as to whether there had been any discrimination or unfair dismissal, breach of contract, or unlawful deduction from wages in the case of either Mrs Affleck or Mr Close. Mr Rich was only determining whether Mr Metcalf and Newcastle City Council were appropriate Respondents; and in so determining he was only considering whether Mr Metcalf and Newcastle City Council had become employers of the Applicants and whether they were agents of Newcastle Mind.
12. He concluded that Mr Metcalf and Newcastle City Council should remain as Respondents to the discrimination claims, by reason of the application of Section 41 of the Sex Discrimination Act 1975, [but not to the other claims].
13. Mr Close, on behalf of Mrs Affleck and himself, put forward in a joint Notice of Appeal, five principal grounds which Mr Close has supported today by his Skeleton Argument and his oral submissions. Despite the obvious strength of feelings which this long drawn out dispute has naturally engendered, Mr Close was given every opportunity to develop his submissions in front of us and was able to put his points to us cogently, succinctly and temperately.
14. The first two grounds put before us by Mr Close can be summarised as follows: namely that the Tribunal erred in law in holding that it was not bound by the findings of fact made by or by the evidence given to Mr Rich in February 1998. Mr Close submits that the principles of issue estoppel arise; the evidence, he submits, was not limited to who were the employers of Mrs Affleck and Mr Close, but ranged much more widely over the details of the events which were central to his and Mrs Affleck's complaints.
15. As a result, he submits, the parties had in 1998 a full opportunity to present all their evidence and to make all the submissions they wished as to those events. The 1999 Tribunal, he submits, should not have re-opened all of those matters and should have regarded itself as bound by the findings and evidence in relation to those matters in 1998. Without going into detail, comparison of the two decisions shows immediately that the 1998 findings were much more favourable to Mrs Affleck and Mr Close than the findings of the 1999 Tribunal.
16. In our judgment, this ground of appeal is not arguable. While the decision of the Employment Tribunal in 1998 constituted res judicata or created an issue estoppel between the parties, it created res judicata or issue estoppel only in relation to the issues which were before it. It did not arguably create res judicata or an issue estoppel in respect of factual details which were not directly in issue. It is highly unlikely that the parties, and in particular the various Respondents (and the individual Respondents, other than Mr Metcalf were not, as we understand it, parties to the hearing, other than for the purpose of the initial decision on 16 February) did put, or even wished to put before the Tribunal all of the relevant evidence as to the events leading up to the suspension or purported suspension of Mrs Affleck and Mr Close and the subsequent dismissals. Indeed, the issue as to the status of Mr Metcalf and Newcastle City Council took four or five days of evidence and submissions, and not fourteen, as did the merits hearing. The findings of fact were made only in the context of the preliminary issues then being decided and of the evidence then presented.
17. The parties, we have no doubt, never intended, and the law does not require, that they should thereafter be bound at the full merits hearing by the findings made at the preliminary issue in February of the previous year. The 1999 Tribunal held that it was not restricted by the February 1998 decision, or findings, in carrying out the investigation required of it, so as to reach a conclusion on the merits of the Applicants' claims; and in our judgment it is not arguable that, in proceeding as it did, the 1999 Tribunal fell into error. The decision of the 1999 Tribunal was, in this respect, consistent with the principles demonstrated by the decision of the Court of Appeal in Munir v Jang Publications Ltd [1989 ICR 1].
18. Mr Close further argues that the 1999 Tribunal erred in failing to take into account the evidence given to, and findings made in February 1998, and the differences between that evidence, as set out in the February 1998 decision, and the evidence being given in 1999. This too, is in our judgment, not properly arguable; in paragraph 8.5 of its decision, the 1999 Tribunal expressly referred to Mr Rich's findings and the differences between his findings and the views on the evidence which commended themselves to the 1999 Tribunal. They clearly took the 1998 decision, in detail, into account in arriving at their conclusions.
19. Mr Close makes two more submissions, referable to the 1998 decision. Firstly, he argues that the 1999 Tribunal erred in law in accepting a submission from Counsel for some of the Respondents that they had been unprepared to argue all of the issues which were relevant in 1999 at the 1998 hearing; but, firstly, such a submission was probably correct; and, secondly, the Tribunal simply decided, at paragraph 3.3 of its decision, that the earlier findings of fact had been made on a narrow preliminary issue, and that the evidence related to aspects which the Respondents against whom they were made had not anticipated would be the subject of consideration, prior to that preliminary issue commencing. We see no basis for an attack on the Tribunal in this respect.
20. Secondly, Mr Close draws attention to the fact that one of the Respondents, Mrs Bates, who had given evidence favourable to Mrs Affleck and Mr Close in 1998, had died between the two hearings, and was therefore unable, in 1999, to give to the Tribunal the evidence which had been influential in 1998. We have some sympathy for Mr Close and Mrs Affleck on this point; but the argument is not one which gives rise to any arguable error of law on the part of the 1999 Tribunal as opposed to sympathy. Either it was right or it was wrong for the 1999 Tribunal to approach the 1998 Tribunal's decision as they did; the unfortunate death of Mrs Bates could not affect that position. In our judgment, the Tribunal were right in the way in which it dealt with the 1998 decision, and its decision is not arguably undermined by the absence of Mrs Bates in 1999, however unfortunate that absence turned out to be for Mr Close and Mrs Affleck.
21. Next, in grounds three and five of the Notice of Appeal, Mr Close raises three issues of alleged perversity. It is to be noted that he does not, under ground three of the Notice of Appeal, identify any specific findings in the 1999 Tribunal's decision which he submits are perverse; the criticisms are put, for the most part, in a very general and broad way. We are not persuaded that any of them gives rise to an arguable case of perversity.
22. Firstly, it is submitted that the Tribunal acted perversely in failing to give any or any proper weight to the evidence heard by Mr Rich and to inconsistency between the evidence given to Mr Rich and that given to the 1999 Tribunal by at least one of the Respondents, Mrs Ferguson. We have, however, already pointed out that the 1999 Tribunal plainly considered all of the material set out in Mr Rich's lengthy decision. The weight they gave to the findings made by Mr Rich and to the evidence before him, as recorded in his decision, and to any inconsistencies between the evidence and the findings on each occasion were a matter for the Tribunal to assess. The Employment Appeal Tribunal cannot interfere by way of appeal on the basis that the Tribunal are alleged to have given too much or too little weight to evidence or to individual inconsistencies.
23. Next, it is argued that the Tribunal allowed the Respondent to produce and rely upon an excessive amount of hearsay evidence; but there is no limit to the extent or nature of hearsay evidence which the Tribunal has power, in the exercise of its discretion, to admit Whether the Tribunal gives such evidence any weight, and if so, what weight, is a matter for the Tribunal.
24. Thirdly, it is argued that one of the Respondents, Mrs Eccleston, was allowed to produce documentation which Mrs Affleck and Mr Close were not allowed to see, and to cross-examine from that material. There is nothing in the decision to indicate that this occurred; and it is open to a party to use a document as material which provides it with questions which it wishes to ask in cross-examination without that document necessarily having to be put in evidence, or indeed, being admissible. Mr Close does not point to any specific finding of the Tribunal which was affected by this alleged error, if error it was; and we see no arguable ground of appeal arising in this respect.
25. In ground 5 of the Notice of Appeal, Mr Close makes two further points. Firstly, he submits that the Tribunal erred in concluding, as it did at paragraphs 4.2(r) and 7.5, that Mr McVay who was not suspended at the time of Mrs Affleck's suspension, but who was found to have made a remark regarding his personal opinion of the action taken against Mr Close, was not an apt comparator, for the purpose of considering whether Mrs Affleck had been less favourably treated.
26. The Tribunal found that Mr McVay had been treated differently from Mrs Affleck, but that he was not a true comparator because, in contrast to Mrs Affleck, he had not demonstrated a desire to subvert the whole process by which Newcastle Mind had decided to suspend Mr Close or helped Mr Close to defy the Chairman and Vice-Chairman of Newcastle Mind when they sought to enforce the decision to suspend Mr Close; Mr McVay had only made a statement of his opinion of the acts taken. This was a decision for the Tribunal. The Tribunal were entitled to find there were factual differences between the two cases. In considering whether the comparison relied upon by Mrs Affleck was apt, they were entitled to consider whether the circumstances relating to Mrs Affleck and Mr McVay were the same or were not materially different, and to conclude that they were materially different. See section 5(3) of the Sex Discrimination Act 1975.
27. Secondly, in ground 5, Mr Close argues that the Tribunal acted perversely in ignoring evidence that he had complained of the treatment he was receiving in terms of sex discrimination, in a letter dated 16 March 1995 which was put in evidence. We do not see how it can be successfully argued that the omission, on the part of the Tribunal, to refer to one document in the course of a very full decision covering thirty four pages, could give rise to a conclusion that the Tribunal had acted perversely. The Tribunal considered, in paragraph 7.4, what were the reasons for the treatment of Mr Close and whether he was the victim of sexual discrimination, and concluded that there was no less favourable treatment on the ground of sex. In our judgment, it cannot successfully be argued that those conclusions could be disturbed on the basis of the failure to refer to one letter of complaint.
28. We have considered all of the perversity arguments put forward by Mr Close, with care, but decided that none of them gives rise to any arguable grounds of appeal.
29. In the fourth ground set out in the Notice of Appeal. Mr Close raises, on behalf of himself and Mrs Affleck, a number of specific points which he submits support the allegation that the 1999 Tribunal were biased against the Applicants, and should have disqualified themselves from hearing the case.
30. Pursuant to the usual practice, Mrs Affleck and Mr Close were asked to provide affidavits setting out the basis for the allegations of bias and did so. The Chairman and lay members have separately responded to Mr Close's affidavit; the Chairman has responded to Mrs Affleck's affidavit and has indicated that the lay members do not wish to add to their replies to Mr Close's affidavit which have already covered the matters referred to by Mrs Affleck. Mr Close does not accept the accounts or explanations given by the Chairman and the lay members of the Tribunal; he described them to us as "contemptuous".
31. The principles which apply, where an allegation of bias is made, were examined by the Court of Appeal in the leading case of Locabail (UK) Ltd v Bayfield Properties Ltd [2000] IRLR 96; Mr Close drew our attention to the subsequent decision of the Court of Appeal in re Medicaments and Related Classes of Goods (No. 2) reported in The Times newspaper for 2 February 2001; in that case the Court of Appeal set out the principles again in the light of the jurisprudence of the European Court of Human Rights; and for the purpose of this preliminary hearing, we apply those principles, namely:

1) A court should ascertain the circumstances which had a bearing on the suggestion of bias and then ask whether those circumstances would lead a fair minded and informed observer to conclude that there was a real danger of bias.

2) The material circumstances should include any explanation given by the Tribunal and a review.

3) Where that explanation is accepted by the Appellant, it can be treated as accurate.

4) Where it is not accepted, it becomes one further matter to be considered, from the viewpoint of the fair minded observer.

5) The Court does not have to rule whether the explanation should be accepted or rejected, but to decide whether or not the fair minded observer would consider that there was a real danger of bias, notwithstanding the explanation advanced.

We do not regard it necessary to require any of the further steps described by the Employment Appeal Tribunal in Facey v Midas Retail Security [2000 IRLR 812] to be taken.

32. The first point taken by Mr Close in this area of his submissions is that, during the course of the hearing, a reference was made by Counsel for one of the Respondents to information about a supposed costs warning given at some earlier stage in the proceedings by a differently constituted Tribunal, which reference, Mr Close submits, should not have been made. This incident is referred to by Mr Close in paragraph 26 of his affidavit, in which he says that

"the Chairman said the he did not want to hear anything about that".

Mr Close made two complaints about this incident. Firstly, he complained that the Tribunal ought, having received this information that they should not have received, to have disqualified themselves and, indeed, that he asked them but they declined to do so (although there is no reference to such a request in his affidavit). Secondly, he complains that the Chairman refused to allow Mr Close to explain the history of what had happened in relation to a costs warning.

33. The Tribunal, in refusing to disqualify themselves in the light of what had happened, were exercising a discretion of a broad nature and we do not see any arguable basis on which they could be criticised for exercising that discretion as they did, in the middle of a long, protracted and involved merits hearing. In the course of such a hearing, it is not infrequently the case that matters are referred to which should not have been referred to; Tribunals are used to putting such matters out of their minds. We take the same view as to the refusal of the Tribunal to allow any further explanation in relation to the costs warning; the Chairman explained, in his response to Mr Close's affidavit, that to have permitted any further development of the matter would have been to add to its prominence; and although Mr Close does not accept that explanation, having regard to that explanation and the circumstances of what happened, we do not see any arguable case of bias or any arguable error of law.
34. Next, Mr Close alleges that a conversation took place between one of the Tribunal's lay members and Mr Flynn, the Leader of Newcastle City Council, who had been brought to the Tribunal as a witness under Witness Order, but who had not, in the event, been called to give evidence. Mr Close contends that that conversation displayed familiarity between the witness and the lay member. In paragraphs 22 - 24 of his affidavit, Mr Close enlarged upon this event. What he says happened is that as Mr Flynn who was no longer required as a witness, was leaving the Tribunal, he, Mr Close, was taking note of what the Chairman was saying, but was aware of the lay member smiling and seemingly passing some remark to Mr Flynn. He goes on to say that Mrs Affleck then told him that the lay member had appeared to converse with Mr Flynn, and both had smiled at some shared pleasantry or joke. Mrs Affleck, in her affidavit, gives a slightly different version; she describes that as Mr Flynn left the room, he stopped and had "a little chat" with the lay member. The Chairman describes his recollection as that Mr Flynn simply walked directly out of the room when he was released; the lay member concerned says that no such incident occurred at all.
35. In our judgment, having regard to the circumstances which we have described in full, no real risk of bias has arguably been demonstrated. In the course of a lengthy hearing, eye contact, facial expressions and occasional remarks are passed between the various persons concerned within the Tribunal; such events do not arguably indicate a real danger of some knowledge or familiarity or relationship between the persons concerned; there is no other material which suggests any relationship between Mr Flynn and any of the members of the Tribunal, all of whom had been specifically selected from another area, and not from within the area of Newcastle.
36. The third specific incident referred to in the Notice of Appeal arises from the fact, which is not in dispute, that on 28 January 2000 the two lay members of the Tribunal shared a taxi from close to the Tribunal building to Newcastle Central Station with Mrs Eccleston, one of the Respondents. Mr Close sought a review of the Tribunal's decision on the basis of this incident; as a result the comments of two lay members as to this incident were specifically sought; they are in our bundle and we have read them. We have also read the decision of the Chairman, given with Extended Reasons, to reject the application for a review on the grounds that it had no reasonable prospect of success.
37. In considering this incident we first draw attention to the chronology. The hearing of Mr Close and Mrs Affleck's case had concluded on Thursday 20 January. On that day and the next day the Tribunal deliberated and reached decisions on some of the complaints. Over the next week, the same Tribunal heard the case of a similar claim involving Newcastle Mind, brought by Mrs Colback. The taxi incident occurred at the end of the fifth day of the hearing of Mrs Colback's case, when the lay members sought to get into a taxi to take them back to the railway station on a Friday afternoon and found that that the taxi they were getting into was, in fact, one ordered by Mrs Eccleston. In the result the three shared the taxi as far as the station. The lay members both say, in their comments on this incident, that there was no discussion about the various proceedings. The members both say, and Mr Close accepted before us, that they told the Chairman about this incident when they next met, for further deliberations, two weeks later. Mr Close criticises the fact that the Chairman did not then tell the parties and asserts that his failure to do so is further evidence of bias.
38. This incident, too, when considered in the light of Mr Close's assertions and the explanations given by the members of the Tribunal, does not, in our judgment, give rise to an arguable case of bias, i.e does not lead us to conclude that a fair minded and informed observer would arguably regard the circumstances as to consider that there was a real danger of bias. While we do not seek to decide precisely what happened, there is no evidence as to how the lay members came to share a taxi with Mrs Eccleston, or as to what was said between them, other than that provided by the lay members. Of course, the members would have been wiser not to have shared a taxi with a Respondent at all, and doing so is not entirely the same as happening to meet in a bus or in a queue, as one or both of the members have suggested. Furthermore it was, perhaps, unwise of the Chairman not to inform the parties of what had happened when he learned of it - although one can well see why he did not, the hearings of and Mrs Affleck's and Mr Close's case having by that time finished three weeks earlier. The fact that, after the event, it is possible to see how those concerned might have acted with more wisdom, does not mean that, arguably, there is a case of bias arising from this incident. Applying the principles set out above, we conclude that no arguable case of bias arises.
39. Fourthly, in the Notice of Appeal, Mr Close argues that in coming to conclusions which are in conflict with earlier findings, in particular those of Mr Rich, the Tribunal must have been biased or perverse. We have already addressed the perversity issue and the contention that the 1999 Tribunal was in error in the way in which it approached the 1998 decision. Again, applying the principles we have described, we do not see an arguable case of bias on the part of the 1999 Tribunal arising under this head of Mr Close's complaints either.
40. In his affidavit, Mr Close refers to a number of other events which, in his submission, demonstrate bias. He submitted to us that we should take into account all of those events as further evidence of or incidents of bias, even though they are not specifically referred to in the Notice of Appeal. We have done so. We do not propose, in this already lengthy judgment, to set out each matter relied upon and to address each separately. We have considered them all. Many of them relate to the way in which the Tribunal, or the Chairman of the Tribunal, controlled the proceedings; for example, Mr Close complains that he was limited in the time he was given to devote to the cross-examination of Mr Metcalf, in particular, and that he was subjected to other time limits by the Tribunal, that the order of cross-examination was changed, so that he said he had to cross-examine Mr Metcalf first, that the Chairman referred often to seeking to finish the case quickly, or without wasting public time and money and that therefore he was not given a proper opportunity to develop or put his and Mrs Affleck's cases.
41. Mr Close is no doubt aware, from his own experience as an advocate which he described to us, that the Tribunal is entitled to control its own proceedings, and to case-manage those proceedings, so as to efficiently to move the case along, without waste of time and costs, and to try to achieve an end within the allotted timespan, or, if that cannot be achieved, as speedily as is consistent with justice and fair opportunity to all parties to present their cases. Having considered the material provided by Mr Close, and his oral submissions, and the explanations provided by the members of the Tribunal, including the Chairman, we have, in relation to all of these matters, concluded that it is not arguable that a fair minded observer would consider that there was a real danger of bias arising out of the individual matters raised by Mr Close in his affidavit, or arising out of all those matters altogether. We have reached the same conclusion about the matters referred to in Mrs Affleck's affidavit, which supports, but also adds to the affidavit of Mr Close.
42. Finally, in relation to bias, we have taken a step back from the individual complaints and have considered the material overall; for Mr Close submits that the Tribunal was biased against the Applicants from the start, were determined to reach a decision against them, and that the individual matters complained of are manifestations of an ever present bias. Again, applying the principles we have set out, and having considered all the material, we conclude that there is no arguable case of bias, either in general or in the particular respects to which Mr Close and Mrs Affleck have drawn our attention. It does not follow that, because, to the perception of Mr Close and Mrs Affleck, the hearing did not proceed as they would have liked, that there was what would be seen, by a fair minded and informed observer, a real danger of bias.
43. Because of the nature of this case, we have, albeit in a judgment on a preliminary hearing, been through the grounds put forward by Mr Close on his own behalf, and on behalf of Mrs Affleck in our conclusion, in respect of all those grounds, is that they do not give rise to any arguable ground of appeal; the appeals are therefore dismissed.
44. We should add that the fact that this is a reserved judgment arises only because one of our number had a pre-arranged commitment on the day of the hearing as a result of which this judgment could not be delivered on that day. We explained the position to Mr Close who graciously accepted it.