United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D IBEKWE Representative


 


JUDGE McMULLEN QC

1. This is an appeal from a Leeds Tribunal Regional Chairman Mr DR Sneath (sitting alone) sent to parties on 3 October 2001. The Chairman ordered to be struck out of the Originating Application a claim for a declaration that the Applicant was entitled to a redundancy payment under Part XI of the Employment Rights Act 1996. He further ordered to be struck out a claim under the Race Relations Act 1976 in both cases on the grounds that they were misconceived. The Applicant's claim for breach of contract was ordered to go forward to a full Empoyment Tribunal on a date to be fixed. Extended Reasons were provided.

2. At today's Preliminary Hearing Mr Ibekwe representing the Applicant raises 3 points. He appeals against the dismissal of the redundancy payments claim. He appeals if leave is given to amend his Notice of Appeal to challenge the decision under the Race Relations Act and similarly if permission is given by us to add a claim of apparent bias. He has told us that he has not yet been able to give his client the benefit of his full advice on the two latter points and we acknowledge that time should be given for that.

3. The Applicant was employed by the National Westminster Bank. In 2000 the decision was taken by the Bank (the Respondent) to close its Leeds Card Centre where the Applicant worked due to what would ordinarily be described as a redundancy situation. The Applicant had been employed by the Bank for some time prior to that. The Bank took steps to offer alternative work at two other Centres.

4. In due course pursuant to a different initiative the Applicant competed for and was offered employment in Bradford by the Bank. The offer was made by letter on 21 February 2001. The Leeds Card Centre closed on 26 February. The Applicant took a week's leave, which we understood to be unpaid, and then started work at Bradford the following week. The Applicant claimed she was entitled to redundancy payment. She claimed she had been discriminated against contrary to the Race Relations Act and her claim was heard before Mr Sneath who exercised his powers to strike out as misconceived pursuant to Rule 15(2)(c) of the 2001 Regulations.

5. As to the claim under Part XI of the Employment Rights Act we see no error of law. It is submitted to us that Section 138 deals with fixed term contracts and Section 141 deals with ordinary contracts. We see no distinction between the two. According to the above chronology an offer of employment was made by the Respondent in writing prior to the termination of the Applicant's employment in the Leeds Card Centre and she started work in Bradford within 4 weeks of ending at Leeds. Section 138 expressly covers this situation and Section 141 is in similar language. There is no error of law in the Chairman's decision to strike out that claim.

6. We heard today Mr Ibekwe argue against the striking out of the race discrimination claim. We are prepared to give him permission to amend the Notice of Appeal to include this matter once he has his client's instructions. In respect of this part of the claim the Applicant who is black alleged that she was refused pay whilst payments were made to white colleagues. The Chairman pointed out that those colleagues had not been identified and invited the representative of the Respondent to indicate the evidence which would be relied upon. The Chairman then said this:

"It would be surprising if the respondent had committed such an overt act of racial discrimination. Whist I have chosen not to hear the evidence of Miss Hirst, (that is for the Bank) I have decided that I am entitled, in this situation, to say that such evidence is inherently likely to be believed. Further, I observe that there is no positive case in the applicant's written representations against what is said by the respondent."

6. We note that the Chairman (sitting alone) was exercising the often described draconian power of striking out by reference to the documentary pleadings. We have doubts about whether in a case which requires some balancing of evidence a Chairman (sitting alone) has this power. Certainly in respect of technical defects the strike out power appears to be unlimited, but where, as here, the Chairman was weighing the strength of evidence and deciding as to its credibility, the matter ought to have been the subject of a full hearing albeit, as a preliminary point, rather than as a strike out. We consider that the argument, to be run by the Applicant if so advised, should go to a full hearing.

7. Thirdly, the Applicant contended that the Chairman had been guilty of apparent lack of impartiality. We consider that the use by the Chairman of the language which we have described above is capable arguably of giving rise in the mind of a reasonably informed observer to a real possibility that the Chairman's mind may not be open. In these circumstances we think there is force in the Applicant's point and again if so advised would be prepared to allow this to go forward to a full hearing. In such circumstances the Employment Appeal Tribunal Practice Direction of 1996 Article 9 invokes a procedure.

8. We however consider that the allegation of apparent bias is succinctly encompassed in the Applicant's Skeleton Argument and emerges solely from the use of the words of the Chairman in paragraph 11 of his Extended Reasons. It is not necessary in our judgment for there to be further procedural steps as would otherwise normally be required, given the narrow context in which this complaint is raised. It is well-known that the response of a judicial officer to an allegation of apparent or actual bias carries very little weight and we do not propose to put him and the parties to the trouble of commenting upon the allegation since it will be a matter of construction as to whether the words which we have cited cross the threshold of apparent bias as we have defined it to be.

9. Estimated Time half a day. Category C.