United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR DRACASS (of Counsel) Instructed by: Messrs Jerome & Co Solicitors 98 High Street Isle of Wight PO30 1BD
For the Respondent	MR ROY LEMAN (of Counsel) Instructed by: Messrs Moore & Blatch Solicitors 11 The Avenue Southampton SO17 1XY


 


JUDGE D M LEVY QC

1. This is an unusual appeal. By an application received at the COAT in Scotland on 23 October 2000, Thomas Arthur Attrill, now deceased, complained of unfair dismissal, there was a short statement in box 11 of the IT1 of the grounds.
2. The response of the Respondent, his employer Wightlink Ltd, was received on 8 January 2002. The background to the dismissal of Mr Attrill was that there had been fraud carried on in the Respondent's premises of which the Appellant was thought to be a party. Mr Attrill committed suicide on 2 April 2001. In connection with the date of complaint and the suicide of the complainant, we have been referred to that part of section 206 of the Employment Rights Act 1996. Thus where it deals with who is an appropriate person to carry on an action in the case of death, one such appropriate person is a widow of a deceased. We assume, though it is not said anywhere in the papers, that the Employment Tribunal had appointed the widow of Mr Attrill to be such an appropriate person.
3. In September 1999, the deceased underwent Ileostomy surgery and was on sick leave. In January 2000 he was readmitted to hospital for further surgery. In February 2000 he returned to work. At that stage, according to a chronology, helpfully produced by Mr Dracass he was aware of malpractice and frauds by other employees taking place at the Respondent's business premises. He claimed that he integrated with such activities in order to uncover the 'scam' and later reported to higher management, whether that was right or not, we do not know because, because there had been no hearing.
4. In February-March 2000, the chronology tells us that he informed Captain Frampton (General Manager) of his findings and there were subsequent clandestine meetings between the deceased and Captain Frampton which took place away from the work premises. This is what is alleged on behalf of the deceased, but we make no findings on it. He was interviewed by the police in April-May 2000 and no charges were brought against him. In May 2000, he was involved in a serious road traffic accident and was on sick leave. On 30 May 2000 there was a lengthy fact-finding meeting between Mr King (Route Manager) and the meeting was tape recorded.
5. On 11 July, there was a letter to the Deceased asking him to attend a disciplinary hearing and answer a number of allegations. On 25 July 2000, there was a disciplinary hearing conducted by Mr McLeod. On 28 July he was summarily dismissed, following that hearing. On 30 July, he gave notice of his wish to appeal the decision. Then came the IT1 and the IT3 which we have mentioned.
6. On 27 November 2000, there was a directions hearing at the Employment Tribunal sitting at Southampton before the Chairman Mr Toomer who made an Interlocutory Order not only on the deceased case but of the case of four others who had similarly brought proceedings in the Industrial Tribunal. The case of Mr Attrill was adjourned generally and the combined proceedings Order was made in respect of the others who had made applications to the Employment Tribunal at the hearing on 27 November, when Mr Attrill was shown as represented by his wife.
7. 19 March 2001 was the first day of the hearing in the Employment Tribunal of four applicants other than Mr Attrill in the combined proceedings. We understand, and this is common ground, that on 20 March, the second day of the hearing, that certain advice had been given to the parties by the Tribunal which was chaired by Mr C E H Twiss and that the complaints of all Applicants other than Mr P Davies, were withdrawn. The Tribunal then continued to hear the complaint against Mr Davies of unfair dismissal and the last hearing date was 23 March. On 2 April 2001 Mr Attrill committed suicide.
8. On 26 April the Extended Reasons were given in Mr Davies' case against the Respondent and then the next thing that appears to have happened is the Tribunal decided to restore the case of Mr Attrill. In that connection, the Respondent wrote a letter dated 14 June to the Tribunal Secretary in Southampton:

"Attrill -v- Wightlink Limited
Case no 3104736/00

Thank you for your copy letter dated the 13 June to Mrs Attrill with its enclosure. From the Respondent's point of view the Tribunal will understand that it has been to considerable expense in having a number of these related cases heard in the Tribunal and which were determined in a consolidated hearing lasting one week. Having regard to the Tribunal's finding in the case of Davies (Case Number 3104266/00) it is the Respondent's intention, if this case remains effective, to make an application to have the action dismissed. At the present moment the old procedural rules apply and at the very least this matter will require a pre-hearing review under rule 7 of the existing rules as well as further directions.

Mr Twiss was the Chairman who dealt with this matter and bearing in mind the issues of proportionality that are coming to the fore in Tribunal proceedings, we are concerned about the effective use of Tribunal time as well as doing justice to both parties.

We would be grateful if this matter could be reviewed by a Chairman in the light of this letter."

Mr Leman confirmed to us that a proper inference to be drawn from that letter was that the Respondent's solicitor was suggesting that it might be suitable for Mr Twiss to be the Chairman of the proposed rehearing of the review under Rule 7. There was such a review and that review was indeed chaired by Mr Twiss sitting alone. That hearing took place on 12 July 2001.

9. Having heard from Mr Dracass, of Counsel, on behalf of the Applicant, and Mr Miles, a solicitor on behalf of the Respondent, the Tribunal ordered that the Applicant should:

"1……… pay, within 21 days, beginning with the date upon which a copy of this Order is sent to the parties, a deposit of £10.00 as a condition of being permitted to continue to take part in these proceedings.

2. The Applicant's application to amend the Originating Application is refused."

The Applicant is shown as Mr T A Attrill (Deceased). This must have been a slip of the Chairman, because of course, the Applicant was the representative of Mr T A Attrill (Deceased).

10. On 18 July the Chairman gave Reasons for that Decision. We think it is helpful to read these Reasons in full:

"1 These proceedings are brought by Mrs Attrill as personal representative of her deceased husband, Mr T A Attrill."

[In point of fact she was continuing proceedings brought on by him]

"2 In coming to my determination on the Pre-Hearing Review and application for the amendment of the Originating Application, I have read the Originating Application, the Notice of Appearance and the decision in the case of Davies v Wightlink Ltd referred to by Mr Miles in his submissions. [that is the advocate for the Respondent] I have also listened carefully to the submissions of counsel.

3 I was the Chairman of the Tribunal dealing with Mr Davies' case. It was a long hearing with a number of unusual features, and I have a vivid recollection of it. Our consideration of the case of Mr Davies involved reading a substantial part of the fact-finding interviews conducted by the Respondent with Mr Attrill.

4 Mr Dracass [ Counsel for the Appellant and Counsel below] has raised the issue whether or not I should refrain from hearing this Pre-Hearing Review because of my involvement with the Davies' case in view of my intimate knowledge of it. I have considered carefully whether I am likely to be biased for or against Mr Attrill and whether my knowledge of a considerable amount of the circumstances of his dismissal would be likely to prejudice me in deciding this application.

5 I have decided that it would not. I cannot emphasise too strongly that today I am not trying the issue between the Applicant and the Respondent in this case: that is something for another day. What I am doing is determining whether or not the Applicant's case stands a reasonable chance of success. I believe it is appropriate and helpful that I should bring my knowledge derived from the previous hearing to bear on the matters I am now considering. There is a great deal of commonality between his case and that of Mr Davies and the other Applicants whose cases were settled. The Tribunal at the previous hearing conducted a close examination of a mass of evidence, and I have the circumstances surrounding Mr Attrill's dismissal clearly in my mind. It had been intended that his case should be heard jointly with that of Mr Davies and the others, but this could not be done because he was too ill to attend.

6 While I have the very greatest sympathy for Mrs Attrill, I am in no doubt that Mr Attrill's case does not stand any reasonable chance of succeeding. It is my clear recollection (confirmed by the documents considered and the submissions made today) that the Respondent's investigation led them to a reasonable belief in the guilt of Mr Attrill of the disciplinary offences for which he was dismissed. I therefore consider it appropriate to make an Order requiring Mrs Attrill to pay a deposit."

[Our underlining]

Paragraph 7 gave details of the Appellant's modest means and the rest of the Decision dealt with the application to amend the Originating Application. The sentence in paragraph 6:

"It is my clear recollection (confirmed by the documents considered) …."

must refer to the documents which were considered in the earlier cases of which the Appellant may have had little knowledge of what they were and the submissions made today were those which have been summarised.

11. From that Decision, there was a Notice of Appeal which was received on 23 August 2001. That came before another panel of this Tribunal headed by Wall J on 24 October. After hearing from Mr Dracass, the Tribunal, in the short Reasons given, said this in paragraph 8:

"8. The question the Chairman asked himself was whether or not he was in fact unable to deal with the case before him on the basis that he might be biased because of his knowledge in the Davies' case. He says that he considered carefully whether his knowledge of the background and the considerable amount of material with which he had previously to deal would be likely to render him unable judicially to deal with Mrs Attrill's case. He came to the conclusion that he was not so biased and proceeded.

9. It is however reasonably clear from the authorities that the proper test which should be applied is whether or not a reasonably objective person would perceive bias even if it did not actually exist; and by that standard it seems to us with respect to him that the Chairman may have misdirected himself - alternatively it is certainly arguable that he did and that is sufficient of course at this point to allow that aspect of the case to go forward to a full hearing."

12. There had been an affidavit on 12 September by Mrs Attrill which was before the Tribunal in the ex parte hearing on which the Chairman was invited to comment. He did so by letter dated 9 October 2001 which was also therefore before the Tribunal and he said this in reference to paragraphs 10 and 11 of Mrs Attrill's affidavit which read:

"10. During the pre-hearing review itself, Mr Twiss referred to having heard evidence at Mr Davies' hearing about the investigation relating to my husband. I am not sure exactly what evidence he heard about my husband during Mr Davies' hearing, but I recall he referred to having read my husband's 'statement'. This document, I believe, runs to some 150 pages and I find it hard to believe Mr Twiss was entirely familiar with it. The circumstances of my husband's dismissal are not something that the tribunal in Mr Davies' case would have been directly concerned with. Moreover, my husband was not present at Mr Davies' hearing to challenge or explain any of the evidence that the tribunal may have heard about his case. I was concerned that Mr Twiss had regard to such material.

11. Mr Twiss found that my husband's complaint had no reasonable prospect of success and ordered me to pay a deposit to continue the proceedings. He warned me that if I pursued the action and lost I could be ordered to pay the Respondent's costs."

Of those paragraphs the Chairman said this:

"The hearing of Mr Davies' complaint took five days. Much of the first day was taken with reading the considerable volume of documentation arising from the respondents' investigations which included much which related to Mr Attrill. We certainly did not, however, read all the documents relating to him. We considered from our reading that it might be proper for the respondents to consider settling three of the claims and that suggestion was put to their counsel. The claims were, as Mrs Attrill says, settled on the first day of the hearing.

Similar considerations did not, however, apply to the other three dismissed employees, Mr Attrill, Mr Davies and an employee who resigned before the disciplinary proceedings were completed. The case against Mr Davies proceeded and he lost; Mr Attrill's of course, did not.

Whilst we did not, by any means, read all of the documentation relating to Mr Attrill's case, we saw enough evidence relating to his activities to form the opinion that, as in the case of Mr Davies, the respondents seemed to have ample evidence from which they might reasonably conclude that he was guilty of active participation in the fraud.

I hope I made it clear in the pre-hearing review that I was not trying Mr Attrill's case, merely expressing the opinion that it was unlikely to succeed. This was not arrived at lightly. I had in mind not only the interests of Mrs Attrill, but also those of the respondents (and also, as a secondary consideration, those of the trade union supporting her who might wish to have a relatively informed view as to whether the case was likely to succeed).

Mr Attrill's case will be a long one. The costs on both sides will be very substantial. During the pre-hearing review, Mr Dracass admitted that I knew a good deal more about the case than he did. It seemed to me that justice and the best interests of the parties were most likely to be served by a decision on the pre-hearing review from someone who knew something of the case, rather than a chairman who knew nothing of it."

We should add in parenthesis that as a result of the view expressed by the Chairman, we understand from what Mr Dracass has told us this morning that the trade union support was withdrawn, but that does not affect the decision which we have to make.

13. Now, the matter which the Tribunal below allowed to come forward for a full hearing was whether the Chairman applied the wrong test and it is common ground that the right test was thus expressed by Lord Hope in Porter -v- Magill [2002] 2 WLR 37 and the passage which is central to this case is this at paragraph 102:

"…The Court of Appeal took the opportunity in In re Medicaments and Related Classes of Goods (No 2) [2002] 1 WLR 700 to reconsider the whole question. [of bias] Lord Phillips of Worth Maltravers MR,. giving the judgment of the court, observed, at p711 A-B, that the precise test to be applied when determining whether a decision should be set aside on account of bias had given rise to difficulty, reflected in judicial decisions that had appeared in conflict, and that the attempt to resolve that conflict in R v Gough had not commanded universal approval. At p 711 B-C he said that, as the alternative test had been thought to be more closely in line with Strasbourg jurisprudence which since 2 October 2000 the English courts were required to take into account, the occasion should now be taken to review R v Gough to see whether the test it lays down is, indeed, in conflict with Strasbourg jurisprudence. Having conducted that review he summarised the court's conclusions, at pp 726-727:

"85. When the Strasbourg jurisprudence is taken into account, we believe that a modest adjustment of the test in R v Gough is called for, which makes it plain that it is, in effect, no different from the test applied in most of the Commonwealth and in Scotland. The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased." "

That test was approved by Lord Hope and the other Lords of Appeal sitting with him on that appeal. We should add that the In re Medicaments and Related Classes of Goods case was reported on 12 December 2000 so it was a matter, to which the Chairman could have referred. It is perhaps desirable that where a question of bias is raised, those considering the issue should ensure that they are fully familiar with the current state of the law.

14. We turn back to look at the position as it was on the day in question. There had been a hearing with which Mr Twiss was concerned in which Mr Attrill was not party, but in which he had featured. The Chairman and his colleagues had formed some views as a result of that hearing which were not necessarily known to Counsel representing the Appellant, and did not take into account matters which were put in the Deceased's IT1. Furthermore, he was asked to recuse himself, because of the circumstances of the case.
15. We were reminded by Mr Leman, of what the Court of Appeal, in a judgment given by Lord Bingham, Lord Chief Justice, in a Court comprising of him, Lord Woolf and Master of the Rolls in Locabail (UK) Ltd v Bayfield Properties Ltd [2000] IRLR 96, it said at paragraph 25, page 102 of the judgment:

"It would be dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias. Everything will depend on the facts, [of the case] which may include the nature of the issue to be decided. We cannot, however, conceive of circumstances in which an objection could be soundly based on the religion, ethnic or national origin, gender, age, class, means or sexual orientation of the judge. Nor, at any rate ordinarily, could an objection be soundly based on the judge's social or education or service or employment background or history, nor that any member of the judge's family; or previous political associations; or membership or social or sporting or charitable bodies; or Masonic associations; or previous judicial decisions; or extra-curricular utterances (whether in textbooks, lectures, speeches, articles, interviews, reports or responses to consultation papers); or previous receipt of instructions to act for or against any party, solicitor or advocate engaged in a case before him; or membership of the same Inn, circuit, local Law Society or chambers …..[and reference to another authority]…..By contrast, a real danger of bias might well be thought to arise if there were personal friendship or animosity between the judge and any member of the public involved in the case; or if the judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of any individual could be significant in the decision of the case; or if, in a case where the credibility of any individual were an issue to be decided by the judge, he had in a previous case rejected the evidence of the person in such outspoken terms as to throw doubt on his ability to approach such person's evidence with an open mind on any later occasion; or if on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind …….or if for any other reason, there were real ground for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues before him. The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection. In most cases, we think, the answer, one way or the other, will be obvious. But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal. We repeat: every application must be decided on the facts and circumstances of the individual case."

[our underlining]

16. On the facts of this case, the Chairman sitting alone had heard the Davies case. He had read about the Appellant in the Davies case, he expressed strong views in the course of the hearing before him of the merits of the case which the Appellant was bringing. The Appellant's Counsel, though they might have had the chance, on receipt of the letter shortly before the hearing, to find out what had been said in the Davies case, knew not what the Chairman had in mind when the hearing commenced.
17. Mr Leman submitted to us that if we were to allow this appeal it would be opening the floodgates. As Lord Bingham made clear in the Locabail case, every case depends on its individual circumstances. None of us were there at the time, but each of us sitting on this Tribunal are strongly of the opinion that, to take the words of the Master of the Rolls, Lord Phillips in In re Medicaments, a fair minded and informed observer would have concluded that there was a real possibility or a real danger that the Tribunal was biased.
18. We each have come to the conclusion that such an observer, in the circumstances of this case, and given the attitude taken by the Chairman, might have been. That, in our judgment, is sufficient for us to say that the appeal should be allowed. We do stress that the Chairman might have been right in saying that the Appellant would have an uphill struggle in her battle which she wanted to wage in the Employment Tribunal, and it might well be that if this case proceeds with a further interlocutory application, that there could be a similar result and we say no more of this. What we do have to say though, is that in our judgment, the hearing below was flawed, and in those circumstances it is our duty to set the Decision aside. We will ask Counsel what other Order or other relief is sought.

Earlier on in this judgment, we have said that Mr Twiss must have had in his mind the provisions of section 206 of the Employment Rights Act when he referred to the present Appellant as the personal representative. Because that might well have been a slip in his judgment, although we have somewhat criticised him in this judgment, we would respectfully ask him to correct his judgment under the slip rule and to show that that was how the Appellant came before him and as, indeed, she appears before us.

The question of costs - I say hesitantly because I know that only in exceptional circumstances would costs be awarded against all or other party in this Tribunal. So, very briefly, the situation is that as a result of what occurred on 12 July, and you may feel Sir, having looked at the letters that were written by the Respondent's solicitor, that there was an implied suggestion that Mr Twiss ….

I think we said in our judgment that is what we thought and Mr Leman very clearly accepted that it was.

And in those circumstances, what in effect the Appellant would say this is that …

We cannot say that the Respondent behaved unreasonably therefore we do not make any Order for costs