United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J STARK (of Counsel) Instructed by: Messrs Thompsons Solicitors Arundel House 1 Furnival Square Sheffield S Yorks S1 4QL
For the Respondent	No appearance or representation by or on behalf of the Respondent


 


SUMMARY

Unlawful deduction of wages case - allegation of bias on the part of the Chairman upheld on the appeal - case remitted for rehearing before a differently constituted Employment Tribunal


 


HIS HONOUR JUDGE PROPHET

1. On 30 September 2003 an Employment Tribunal sitting at Leeds, with Mr A J Simpson as the Chairman and Dr John-Baptiste and Mr Wilks as the lay members, heard claims by Mr H Harries and Mr D Simpson in respect of alleged unlawful deduction of wages under section 13 of the Employment Rights Act 1996. The Applicants were represented by Mr Draycott, of Counsel. The Respondents were not legally represented.
2. The Employment Tribunal considered whether Mr Harries and Mr Simpson were workers for the purposes of that section and duly concluded that they were not. Thus the claims of Mr Harries and Mr Simpson were rejected by the Employment Tribunal. A Decision with Extended Reasons to that effect was promulgated on 13 October 2003. We have been invited today by the Appellants to have the Employment Tribunal Decision quashed on three grounds and the case remitted for a fresh hearing before a differently constituted Tribunal.
3. The first ground of appeal for our consideration is an allegation of bias against the Chairman of the Employment Tribunal. It is submitted by Mr Stark, of Counsel, on behalf of the Appellants that the Chairman at the beginning of the hearing made comments about the merits of the case which indicated that he had formed a view that the claims could not succeed. That is the first point. Secondly, that he had decided to deal with the issue of whether the Appellants were workers as a preliminary issue, when this was never suggested by the respective parties or agreed to by them. Thirdly, that the Chairman refused to accept copies of the authorities which Counsel for the Appellants attempted to hand up to the Chairman at the beginning of his closing submissions, and which Counsel wished the Employment Tribunal to consider before reaching its decision.
4. Mr Draycott has prepared an affidavit dated 21 January 2004, in support of those submissions and we have the written comments of Mr Simpson, the Chairman, and one of the lay members in respect of the contents of that affidavit. Although we understand that Mr Wilks, the other lay member, was requested to provide his comments, it seems, for reasons which are not known to us, that he failed to provide any response.
5. With respect to the Chairman Mr Simpson, his comments do not appear to deal very fully with the various matters set out in Mr Draycott's affidavit. He does not, for example, take issue with certain specific remarks which it is alleged he said at the beginning of the hearing, as set out in Mr Draycott's affidavit.
6. The first of those is that when Mr Draycott indicated that the Tribunal had jurisdiction to hear the Appellant's claims, since in his view they were workers for the purposes of section 233 of the Employment Rights Act 1996, Mr Draycott recorded in his notebook the Chairman stating "I do not see how you will establish they are workers".
7. Secondly, Mr Draycott then indicated that the Appellants would be relying upon the Employment Appeal Tribunal's Decision in Byrne Brothers (Formwork) Ltd -v- Baird and others [2002] IRLR 96, to support the argument that the Appellants were workers. However, again noted by Mr Draycott in his notebook, the Chairman said that Byrne Brothers would be "no help whatsoever" to the Appellants.
8. Thirdly, a matter then arose as to the adding of the second and third Respondents to the proceedings, and again in Mr Draycott's affidavit, and noted by him in his notebook, the Chairman said that there could not be a novation of the Appellant's contracts if they did not know who their employer was.
9. In paragraph 3 of the Tribunal's Decision, it is stated that it was agreed that as a preliminary issue, the Tribunal would consider whether it had jurisdiction to entertain the complaint. Mr Draycott's affidavit indicates that no such suggestion was ever made to the parties by the Tribunal. Mr Simpson does not deal with that in his comments.
10. After the parties' evidence had been completed, Mr Draycott, in his affidavit, indicates that he sought to hand up a series of authorities in support of the Appellants' claims, but the Chairman refused to accept copies of those authorities, stating that he had "an office full of such documents", because of the documentation that advocates had insisted on providing to him in the past.
11. It is well recognised that Employment Tribunals often have to examine and clarify issues at the beginning of a hearing. In so doing, Chairmen have to be cautious that in that process, they do not give any indication that they are holding any concluded views. Chairmen frequently ask questions at the beginning of a hearing to representatives, in order to clarify those matters. We have noted from Mr Stark's submissions that most of statements indicated above, as said by Mr Simpson, are made as statements rather than questions, and there is some danger that in that situation, they could be interpreted as expressing concluded views.
12. In a situation where an Employment Tribunal decides, in the absence of any indication prior to the hearing, e.g. at a directions hearing, that it will deal with an issue as a preliminary issue, it is usual before any decision is reached to that effect that the Employment Tribunal will seek the input of both sides. We have considerable doubts as to whether that was done in this case. If the Employment Tribunal had decided, as it might well have done, that it would be suitable to have the preliminary issue of whether the Appellants were workers considered, then that should have been made clear before any evidence at all was submitted.
13. The matter which has caused us particular concern, however, is the final matter put forward here i.e. the refusal of Mr Simpson to allow any copies of authorities to be submitted by Mr Draycott. It is difficult to see any justification for his having refused to accept such copies, prior to submissions, if as presumably was the case, Mr Draycott was intending to make some reference to these in his submissions, and desired the Employment Tribunal to consider those, before reaching its judgment. It is notable that the Chairman does not refer at all to this matter in his comments, and presumably must be taken to have accepted that what was said about that matter about Mr Draycott's affidavit is correct.
14. We recognise that it is very difficult for this Tribunal to be able to know precisely what happened at any Employment Tribunal hearing, and to make a proper assessment as to how the parties perceived the comments and directions of a Chairman. There are indeed many examples of cases which come to appeal, where a party or representative misunderstands that actions or comments by a Chairman are simply a reflection of his duty to ensure, at times robustly, that cases proceed in the best and most expeditious way in the overall interests of justice.
15. We are quite sure that there was never any intention whatsoever for Mr Simpson to exercise actual bias in this case, but what has been put before us has to be looked at in the light of recent authorities in respect of the appearance of bias. This line of authorities is now well established, and in particular by the House of Lords judgment in the case of Porter -v- Magill [2002] 2 AC 359 where Lord Hope stated as follows:

"The question is whether a fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased."

Also helpful are the Court of Appeal's judgment in Jiminez -v- London Borough of Southwark [2003] IRLR 477, and that of the Employment Appeal Tribunal in Peter Simper & Co Ltd -v- Cooke [1986] IRLR 19.

16. It may be that without the matter relating to the Chairman's refusal to accept copies of authorities the appeal would have been on the borderline. Although, no doubt, Mr Simpson's views were expressed rather more forcefully than might have been appropriate, it would have been necessary to balance that up with the duty of Employment Tribunals to clarify issues at an early stage at the hearing. However taken as a whole, it seems to us that the submissions of Mr Stark today lead us to conclude that there are grave doubts as to whether this Employment Tribunal Decision can be considered safe, having regard to the application of the well known principles applying to the appearance of bias.
17. In that situation it seems to us that we have no reasonable alternative other than to quash this Employment Tribunal Decision, and to submit the case for re-hearing before a differently constituted Employment Tribunal. In the light of that, Mr Stark has indicated to us that he does not pursue any further matters relating to this appeal.