At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE WALL
MS B SWITZER
PROFESSOR P D WICKENS OBE
APPELLANT | |
2) TROY HOLDINGS INTERNATIONAL PLC |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | The Appellant in person |
For the Respondents | No appearance or representation by or on behalf of the Respondents |
THE HONOURABLE MR JUSTICE WALL
"14 The Tribunal erred in finding its Unanimous Reserved Decision as one of the Members not only fell asleep during the hearing on 25 May 2001 but during a break on 20 July 2001 the same Member did express his disapproval of the Chairman and there was an extremely strong odour of alcohol on the Member's breath. This can further be substantiated by the Applicant's Counsel Mrs Kavanagh."
"The Tribunal erred in finding its Unanimous Reserved Decision as one of the Members not only fell asleep during the hearings of 25 May and 20 July 2001 but during a short break at approximately 12 noon on 20 July 2001 the same Member did express his disapproval of the Chairman and was apparently in a drunken state with an extremely strong aura of alcohol on his breath. This can further be substantiated by the Applicants Counsel Mrs Kavanagh."
"In paragraph 14, the Applicant refers to the conduct of one of the Members, but this alleged conduct was not drawn to the attention of the Tribunal at the hearing as it should have been, since the Applicant was represented by counsel. This is in accordance with the Court of Appeal's decision in R v Moringiello "The Times" 25 July 1997."
We will return to the decision of R - v - Moringiello slightly later.
"The Tribunal erred in findings its Unanimous Reserved Decision as one of the Members not only fell asleep during the hearings on 25 May and 20 July 2001 but during a short break at approximately 12 noon on 20 July 2001 the same Member did, whilst returning from the Gentlemen's toilet, express his disapproval of the Chairman and it was apparent he was in a drunken state with an extremely strong aura of alcohol on his breath. This can further be substantiated by my counsel to whom the Member expressed his opinion and was also witnessed by the Respondent's counsel"
"THE TRIBUNAL FURTHER DIRECTS that the comments of the Employment Tribunal Chairman and Lay Members be sought as to the matter raised in paragraph 16 of the Notice of Appeal and paragraph 17 of the affidavit sworn by the Appellant on 9th day of November 2001 such comments to be supplied within 56 days from today and similar comments be sought from Mrs Kavanagh the Appellant's Counsel below, and from Ms Thomson the Respondents' Counsel below and from the Respondents' solicitors within 56 days of today".
"1. This point is almost identical to the point raised by the Appellant when he sought a Review of our original decision. I refused that application on the grounds that I considered that it had no reasonable prospect of success. I dealt with this particular point in paragraph 13 of the extended reasons attached to my decision. A copy of the application and decision and reasons are enclosed with these notes."
2. At no time during any part of the hearing was I aware that either of my two lay members fell asleep; nor at any time during or, indeed, after the hearing did either of the party's representatives bring this allegation to my attention. Had they done so then I would have made enquiries and taken appropriate action.
3. Since clearly I was not present when one of my members is alleged to have expressed disapproval of me I was unaware of this. Again, at no time did either representative mention this matter to me.
4. During the course of the hearings which lasted two days I did on occasion smell alcohol on the breath of one of my members, Mr Eynon. I had no reason to think that this in any way impaired his ability to participate properly in the proceedings. Again, at no time did either representative mention this matter to me or make any representations about Mr Eynon's continued participation in the proceedings."
a. I confirm I did not fall asleep at any time during the hearing.
b. I have never taken alcohol before a hearing or during any break in the hearing.
c. I did not at any time during the hearing make any derogatory comment to either of the parties concerning the chairman or my fellow tribunal members. It would be most discourteous to do so and is not my style.
d. I am always very careful not to comment about the case or the hearing to any of the parties in a case if I should see them on the tribunal premises."
He then goes on to make further comments as follows:
"a. I did not observe my fellow lay member fall asleep. Whilst concentrating on the case being presented it is not easy to look back to the other side of the chairman without standing up to make such observation.
b. I did not witness my fellow lay member make the alleged comment about the chairman.
c. I am conscious of the fact that my fellow lay member was outspoken on a number of matters to do with the case but these were always resolved by the chairman in a fair and equitable way.
d. I do not know whether or not my fellow lay member took alcohol at any time during the hearing. The words "…. in a drunken state" are, in my view, not substantiated."
"I notice in paragraph 16 they refer to "a member", although not named. Given that I have been spoken to by the Regional Chairman, Mr Edwards, about this matter, I would assume that I am the person referred to.
In response I would say the following:-
1. Any comments regarding the Chairman were not made in any way in relation to his conduct of the case but in relation to how he was dealing with me personally on a question and answer basis.
2. I have never fallen asleep during a hearing although I may on occasion close my eyes to concentrate.
3. The allegations of me smelling of alcohol I dispute."
"2. Mr Stansbury says that a lay member of the tribunal fell asleep during the hearing. This is not something which I witnessed or which Mr Stansbury or any other person brought to my attention during the hearing."
And then under the heading "Drunken lay member" she says
"3. The Appellant maintains that the lay member was plainly drunk. This was never raised by Mr Stansbury with the Solicitor's representative, Mrs Lamacraft, or with me at the time of the hearing. Consequently I never raised the same during the hearing.
4. As to that lay member's behaviour at the hearing it is fair to say his behaviour was rather odd, and was such as to give the impression that he may have been drunk. Throughout the hearing he shuffled about a little, made facial expressions and occasionally made comments to the chairman.
5. Mr Stansbury is clearly of the view that this supports his view that the member was drunk. On reflection I cannot say whether this member was simply a more animated member than usual, whether he is an eccentric character or whether he was suffering some medical ailment or whether he was indeed drunk. However I cannot recall him smelling strongly of alcohol, slurring his word or falling about in a drunken stupor.
6. In any event his conduct did not interfere with the hearing, for as I recall he played no part in questioning the witnesses, and indeed, apart from his occasional muttered comment to the chairman he remained quiet throughout the hearing.
7. There was only one occasion when I had cause to be close enough to the lay member to smell his breath. That was when myself, the Appellant and Mrs Lamacraft were waiting to return to court, and the said lay member had to pass by the Respondents and through us. It was an awkward moment and the lay member muttered a comment. I do not recall the precise words said but I do remember thinking that the remark had no bearing on the proceedings. I do recall a slight smell of alcohol, yet as we were returning from lunch it was my assumption that he had taken a little something with his lunch.
8. For the avoidance of doubt it must be stated that during the hearing I did not raise the lay members conduct with the chairman because:
i) it was not an issue during the hearing. It only became an issue once Mr Stansbury received the determination of the Tribunal.
ii) Even had I been concerned at the hearing, which I was not, it would have been highly improper of me to cast aspersions on the demeanour of the lay member with no good, solid reason to do so."
"3. Mr Stansbury suggested in his affidavit that, on 20 July 2001, during a brief adjournment, I witnessed a lay Member expressing his disapproval of the Chairman to his Counsel, Ms Kavanagh, and suggests that I can specifically corroborate his allegation that the lay Member was in a "drunken state with an extremely strong aura of alcohol on his breath".
4. I have no particular recollection of the short adjournment at noon on 20th July referred to by Mr Stansbury but this may well have occurred. Over the course of the two days of hearing, there were a number of occasions on which I passed Members of the Tribunal in the corridors. I did not observe anything untoward in their behaviour at any point. I can categorically state that I did not smell alcohol on the breath of any lay Member. Nor did I hear any lay Member expressing disapproval of the Chairman, to Ms Kavanagh or any one else.
5. I have a reasonably clear recollection of the two days of hearings in this case. At no point did I observe any Member of the Tribunal sleeping or falling asleep. Further, throughout both days of hearings, witnesses on behalf of the Respondent were present in the Tribunal room either waiting to give their evidence, or observing the proceedings after they had done so. As they were directly facing the Tribunal, they were well placed to notice if a Member of the Tribunal was falling asleep. At no time did any of them tell me they had seen this happen. If they had done so, I would have drawn the matter to the Chairman's attention. At that stage, of course, no decision had been made, and it would have been as much in the Respondent's interests as the Applicant's to have such behaviour noted."
"I observed all three members of the tribunal panel during both days. At no point was I concerned about any of the members' understanding of or involvement in the proceedings. They all appeared to be paying attention and to be involved in the proceedings throughout."
Mr Ross, a customer services manager, says very much the same as does Mr Waddington. However, Mr Waddington says in paragraph 4:
"I did not see or hear anything in the course of either hearing that might have indicated that one of the lay Members was under the influence of alcohol. Nor did I see any Members of the Panel sleeping. I do, however, recall that on one of the hearing dates (I cannot remember which) the lay Member sitting on from my perspective the left hand side of the Chairman momentarily closed his eyes. It seemed to me that he was concentrating, not sleeping. This is because he was sat upright and with his head held normally. He appeared attentive throughout, fully participating when the Chairman conferred with the Members and asking questions."
"Is it true, during the hearings on 25 May 2001 or 20 July 2001, the Chairman, Mr Ross, was given to raising his voice on at least two occasions in a clear attempt to re-establish the attention of Mr Eynon, who not only had fallen asleep, but was also snoring and hence gave cause for the Chairman to raise his voice?"
That application for further enquiry was refused by the Registrar and those questions were therefore not addressed to the members.
19 If what we have summarised so far stood alone, we would have thought that it was so unlikely that Mr Stansbury's allegation was ever going to get home that there was not an arguable case in support of it. However, Ms Reindorf has shown us what appears to be an unsigned Opinion in Mrs Kavanagh's name. It is unsigned we are told because it was sent by email, by Mrs Kavanagh to Mr Stansbury's solicitors and then sent on to Mr Stansbury by him. We have seen an email from the solicitors to Mr Stansbury in which they send the Opinion on to him. On the face of it, it appears therefore that what we have got, albeit unsigned, is genuinely Mrs Kavanagh's Opinion".
"8. Another ground for appeal could be that the tribunal misconducted itself. In the present case that ground does have some merit because of the actions of one of the tribunal members who was plainly drunk and not following the proceedings.
In order to do so he is going to have to establish with the Reading Industrial Tribunal the name of that drunken panel member (My suggestion is that he enquires as to the name of the bald member, thus the drunken member was the other name).
9. If the appellant is to go down this route he will require an affidavit from both myself and Mrs Lamacraft to substantiate his allegations as to the drunken demeanour of the panel member."
"Of the drunken Member, you may recall there was a short break following Mr Waddington's evidence and before the commencement of my evidence at approximately 12 noon. During this break the alleged Member was returning from the men's room and expressed his disapproval of the Chairman. In doing so it was evident he had been drinking alcohol and was in a drunken state and did further, on occasions during the hearings on both days fall asleep."
"I accept that one of the tribunal members was drunk, and although I am told that Mr Stansbury has said that one of the members was asleep I am afraid I cannot confirm that. It was not something I witnessed."
She then went on to deal with the merits of his appeal.
"20 In that Opinion …….. Mrs Kavanagh is plainly expressing the view and the recollection that one of the members was "plainly drunk".
21 How it comes about that that appears in Mrs Kavanagh's Opinion but something rather different appears in her comments of 29 April 2002 is not for us to begin to explore; but we have to say, having considered it at some length and with great care, that the result of those two documents taken together, and looking at all of the documents on this issue, is that we think that here there is an arguable ground and that Mr Stansbury should not be shut out at this stage.
22 How it will be resolved is something we would not even begin to and should not speculate upon; but in the light of that conflict and in the light of the fact that it appears, on the face of what we have seen, that Mr Stansbury's counsel has at some stage said that a lay member was plainly drunk, we feel that Mr Stansbury must have the opportunity, however difficult the prospect for all concerned, to put this matter before the Employment Appeal Tribunal at a full hearing."
"By 27th of February 2003, 4 pm, Counsel for the Appellant below is directed to comment on the Appellant's allegation at paragraph 17 of his affidavit dated the 9th day of November 2001 and question 7 of the Appellant's Request for Clarification which was received at the Appeal Tribunal on the 18th day of July 2002 such comments to be by way of an affidavit which disposes to the truth of her comments dated the 29th day of April 2002 (if appropriate) and deals in detail with the Appellant's evidence, explaining the apparent conflict between her opinion and her comments to the Appeal Tribunal and exhibiting any relevant documents."
"such comments to be by way of an affidavit which deals in detail with the Appellant's evidence, and exhibits any relevant documents."
"Finally, we wish to say that whilst it is clearly preferable that the advocates, representatives or parties themselves should complain, at the time, that the Tribunal does not appear to be fully alert, in the context of litigation in the Employment Tribunals we regard it as unrealistic to expect that that will always be sensible or practicable. In the Moringiello case, there was a criminal trial before a Judge and jury. The jury are the fact finders. Both parties were represented by counsel at the hearing. It would have been possible, without difficulty, to make an application to the Judge, in the absence of the jury, about the Judge going to sleep, without fear that umbrage would or might be taken and the facts found against the complainant. In the Employment Tribunal, in many cases, one of the parties will be unrepresented by a lawyer. It would, we think, be a denial of justice were the EAT to refuse to intervene where a Chairman appeared to fall asleep, or was guilty of any other misconduct, if no complaint had been made at the time. There is an obvious distinction between the circumstances of the Moringiello case and what happens in Employment Tribunals. Whilst we would hope and expect that a professional advocate would raise the matter then and there, this expectation is not to be regarded as a pre-condition to making an appeal here on that ground. That said, when judging whether there has been an appearance of bias or impropriety, whether or not a contemporaneous complaint was made will be relevant. In this case, we were told that the Applicant was represented by a person who was a pupil in Chambers doing one of her first cases. It seems to us somewhat unrealistic to expect her to raise the issue before the Chairman who was part of the fact finding industrial jury."
So we take no point against Mr Stansbury that the matter was not raised below at the time. That is the effective burden of his first argument before us.