United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR NEIL ASHLEY (of Counsel) Instructed by: Essex County Council Legal Services Chief Executive's Office PO Box 11, County Hall Chelmsford Essex CM1 1LX
For the Respondent	MR ALISTAIR B HODGE (of Counsel) Instructed by: Messrs Howes Percival Solicitors The Guildyard 51 Colegate Norwich NR3 1DD

SUMMARY

The Tribunal's Decision is not vitiated by improper conduct or bias on the part of the Chairman. Various other criticisms of the Decision are rejected.


 


HIS HONOUR JUDGE RICHARDSON

1. This is an appeal by the Essex County Fire and Rescue Service ("ECF") against a Decision of the Employment Tribunal sitting at Bury St Edmunds entered in the Register on 16 February 2004. The Tribunal upheld a complaint by Mr Raymond Lambard, a long serving retained fireman, that he had been unfairly dismissed from his employment.
2. The appeal has three main aspects. Firstly, it is said that in important respects the Tribunal reached conclusions of fact which were perverse or for which there was no evidence or no adequate reasoning: grounds a, b and d of the amended Notice of Appeal. Secondly, it is said that the decision was inadequately reasoned in numerous respects: grounds e and f. Thirdly, it is alleged that the Chairman conducted the proceedings improperly and in such a manner as to give an appearance of bias: ground g. Various individual allegations, some general and some specific, are made in support of this ground of appeal. It is also submitted that the errors of the Tribunal identified in the earlier grounds of appeal lend support to the allegation of bias, for (it is said) the Tribunal failed to deal adequately with important parts of ECF's case. A ground of appeal alleging a misdirection in law (ground c) was withdrawn.
3. In order to do justice to these wide ranging submissions it is first necessary to summarise the contractual and factual background to the Tribunal's Decision, then to summarise the Decision itself, and to turn to the individual grounds of appeal, including the individual grounds upon which misconduct and bias are alleged. It is also necessary, in view of the submissions made, to stand back after reviewing the individual grounds to see whether, taken as a whole, the hearing or the Tribunal's Decision was vitiated by misconduct and apparent bias as alleged.

Mr Lambard's terms and conditions of employment

4. Mr Lambard was a retained fire fighter. He had 28 years' service. He was promoted to leading fire fighter in 1988. By June 2002 he was 53 years old. He would have retired in October 2003 at the age of 55.
5. As a retained fireman Mr Lambard worked part-time. He had another job. There was an obligation upon him to attend a training night for a minimum of two hours per week. He was expected to turn out when called upon and when available. He was paid a retainer. Otherwise he was paid when called out.
6. As a retained fire fighter Mr Lambard's employment was subject to ECF's statement of conditions of service for retained fire fighters. This contained two provisions of importance to this appeal.
7. Firstly, clause 21 related to medical and x-ray examinations. It read:

"Employees will be required to undergo a medical examination and/or tests every three years or at other times by way of health surveillance because of exposure to certain risks or particular illness which, in the opinion of the Service Occupational Physician makes such examinations necessary.

Where the Occupation Physician so decides, the employee may be required to cease carrying out their normal duties for such periods as the Occupational Physician may require."

8. This provision contains an express power to require an employee to cease carrying out normal duties at the instance of the Occupational Physician.
9. Secondly, clause 22 was head and related to "Fitness". This read:

"There is a requirement for you to maintain an appropriate level of fitness commensurate with operational requirements; failure to do so may result in Capability Guidelines for fitness being applied".

10. This clause does not contain an express power to require an employee to cease carrying out normal duties. The Capability Guidelines to which clause 22 refers were not produced to the Tribunal. Nor, so far as we can see, did they play any explicit part in the way Mr Lambard's case was handled. It was, as we shall see, assumed on all sides that ECF had some power to remove a retained fire fighter from operational duties on fitness grounds. But (apart from the power to do so at the instance of the Occupational Physician) precisely how this related to Mr Lambard's terms and conditions of service and the Capability Guidelines does not seem to have been explored.

Fitness testing

11. By 2002 there was a fitness testing programme known as "Fitech" in place to monitor the personal fitness level of fire fighters. There was a document available for fire fighters giving guidance as to the Fitech system. There were various tests. They included the monitoring of blood pressure and the taking of an aerobic or stamina test. The test was a "Chester Step test". It involved stepping on and off a bench at increasing speeds while the heart rate was monitored. The test was scored. An aerobic capacity was worked out. The acceptable minimum varied with age. The Fitech guidance stated:

"The pass mark for this tests is related to your age (see chart). If you fall below this figure you will be given fitness advice by your tester and a re-test will be arranged. If your result is less than 37, in the interests of health and safety, you will be temporarily removed from operational duties, pending an appointment with the Occupational Physician."

12. Two particular points should be noted about the Chester Step test.
13. Firstly, a person taking a beta blocker drug was not to take the Step test, because the test relied on pulse readings and these would be suppressed by the drug and give false results. The Fitech guidance said that a fire fighter who was unsure of the type of medication should inform the tester of the name of the drugs. The guidance said that the tester had the facility to contact the Service Fitness Advisor for clarification. The Fitech instructions did not say what was to happen if the fire fighter was taking beta blocker drugs. It did not stipulate any other test to be taken.
14. Secondly, the results of the test would be affected if the person taking the test was anxious. Such a person's heart rate might rise, and give an inaccurate result. One indicator of anxiety might be the blood pressure test which was given prior to the Step test. The Fitech instructions provided that if a person's blood pressure was high they would be asked to go and sit down for some 10-15 minutes before blood pressure would be measured again. It specifically provided that if blood pressure was above certain limits the fire fighter would not be allowed to continue with the test.
15. There was another test of aerobic capacity used by ECF known as the Shuttle Run test. It involved running between fixed points at increasing speeds until unable to manage the stipulated speed. The test was used as a test of fitness for new recruits. They had to achieve a level of 9.6 on the test scale, and this was generally recognised by fire fighters as being a challenging level. It was the evidence of Dr Asbury, the Essex County Council Occupational Health Physician, that as well as being used for new recruits she would send fire fighters to do this test if they were on beta blockers or in they failed the Chester Step test for reasons linked with anxiety. However the Fitech instructions said nothing about this test.

13 June 2002

16. Mr Lambard had suffered for some time from weight problems and high blood pressure. He took beta blocker drugs. On one occasion in 1996 he had been referred to a fitness advisory programme. However on each occasion when he had been seen by the Occupational Health Physician he had been certified fit to undertake duties as an operation fire fighter.
17. In April 2002 Mr Lambard was told he had to attend a routine examination with the Occupational Health Physician on 1 July. It was said that as part of that examination he would be required to undertake a Step test.
18. On 13 June 2002 Mr Lambard went for his first routine FITECH fitness test. He failed the Step test, scoring 36 when, as we have seen, the minimum was 37. He was taken off operational duties by a senior fire office. He was in any event seeing Dr Asbury for a routine medical examination on 1 July. So it was arranged that he would see her about this matter as well.
19. There were two respects in which the Fitech guidance was not complied with on 13 June.
20. The Tribunal found that the test conducted on that day was "clearly not appropriate" (paragraph 37). The Tribunal made two criticisms.
21. Firstly, the Tribunal criticised the test as inappropriate because he was on beta blocker drugs. The Tribunal found that Mr Lambard fulfilled his duty under the Fitech guidance by informing the fitness advisor of the exact medication which he was taking, and that he did not know whether they were beta blockers or not. As the Tribunal pointed out, the guidance provided that the tester had the facility to contact the Service Fitness Advisor for clarification.
22. Secondly, the Tribunal criticised the fact that Mr Lambard was given the test notwithstanding that he had a blood pressure reading in excess of that laid out in the Fitech guidance. The fitness advisor (Mr Wilsher) did not mention this point to Mr Lambard and conducted the test notwithstanding it. The Tribunal criticised Mr Wilsher's lack of attendance to the appropriateness or otherwise of the test: paragraph 37 of the Decision. This second criticism was apparently first noticed (at any rate in the context of the Tribunal proceedings) by the Chairman of the Tribunal. He is criticised for raising it. To this point we shall return later.

1 July 2002

23. Dr Asbury saw Mr Lambard on 1 July for a medical and to deal with the failed Step test. Dr Asbury was aware that the medication he was on was a beta blocker. She asked him to take the test again. This time Mr Lambard passed the test with a score of 47 – a good score, which would have exceeded the minimum required for a man aged 25. The Tribunal records that between 13 June and 1 July Mr Lambard had lost three kilograms in weight. It records his evidence that he had trained for the test.
24. However, after he passed the test Dr Asbury told him the test was not valid, by reason of the beta blockers. She said he would have to take a different test – the Shuttle Run test.
25. Mr Lambard objected. The problem in his perception was that the Shuttle Run test was that it was aimed at young recruits. The Tribunal found that his conception of the Shuttle Run test was that he would have to score the 9.6 expected of recruits: see paragraph 12 of the Decision. This important finding is not challenged on appeal and is supported by an ECF internal memo dated 24 July
26. It emerged during the Tribunal hearings (and again is not challenged on appeal) that if Mr Lambard had undertaken a Shuttle Run test he would only have been expected at his age to achieve 7.2. But Dr Asbury, who did not herself administer Shuttle Run tests, did not tell him this. Nor was he told it (in spite of the memo dated 24 July) at any stage during the grievance procedure. As the Tribunal found, he first learned of it during the Tribunal proceedings.
27. This is a convenient moment in which to deal with Dr Asbury's evidence about Mr Lambard's fitness. It will be recalled that the appointment on 1 July was for a medical. Dr Asbury found Mr Lambard medically fit. In her statement she commented on a letter from Mr Lambard's doctor on his fitness. She said that whilst he may have been medically fit ECF did not have evidence that he was physically fit in terms of stamina and aerobic capacity. When she was cross-examined she expressly accepted that he was medically fit. In answer to another question she said "medically okay but fitness level not accurately tested".
28. The problem, therefore, in Dr Asbury's perception was that she did not have evidence of Mr Lambard's level of physical fitness. She did not reach a final conclusion about his physical fitness. She wrote that he needed to undertake the Shuttle test to confirm aerobic capacity as his blood pressure medication made the Step test inaccurate. She did not complete the medical form not because he was medically unfit but because he was "in a limbo" (Chairman's note of her evidence) over the fitness test.

The grievance procedure

29. After first speaking to his Group Commander Mr Lambard formally invoked ECF's grievance procedure on 25 July 2002. He set out his complaints in writing. He complained in essence that he had been given inappropriate tests, that there was no document saying what aerobic testing should take place if the Chester Step test was inappropriate, and he was at a disadvantage in being unable to prepare for an unknown fitness test. He said that the doctor had not been able to tell him what level of fitness he had to achieve. Underlying this, as we have seen, was a concern that he would have to reach the fitness levels of new recruits. We will consider later certain specific points made on ECF's behalf about the grievance procedure, but it is sufficient to note the following at this stage.
30. The grievance was not dealt with at stage one because the relevant officer was on sick leave. On 27 August it was rejected at stage two. Mr Blackett, who rejected the grievance at that stage, had not interviewed Mr Lambard. In the meantime the Union had instituted its own grievance. That was determined on 3 October. At the next level a grievance hearing took place on 19 December. It was adjourned for further inquiries. On 6 March 2003 a grievance was dealt with at that level. Mr Lambard was told that the Shuttle Run test was appropriate, but was still not told that it was set at a lower level for a person of his age, still less what the level was.
31. On 29 March Mr Lambard wrote his resignation. He said that he was "disgusted with the length of time it has taken to reach any sort of decision" and that he had still not received any notification of the level he was to achieve and he considered he was unlikely to receive a fair test.

The proceedings

32. Mr Lambard claimed (inter alia) that he was constructively and unfairly dismissed. The hearing was listed for two days on 17 and 18 December 2003. The Chairman was Mr B G Mitchell. Mr G Adams and Ms Dallender-Jones were the Lay Members. ECF was represented by Mr Ashley of Counsel, who has represented them again on this appeal. He was instructed by Mr Bogle. Mr Lambard was represented by Miss Young, a solicitor.
33. During the two days the Tribunal had before it a bundle containing 180 pages. There were 40 pages of witness statements. Oral evidence was heard from six main witnesses. Except for one query on the second day as to whether the Chairman was taking an adequate note, there was no complaint during the hearing about his conduct. By agreement at the end of the hearing the parties presented written submissions which the Tribunal describes as being highly detailed and helpful to it in arriving at its Decision in the case. We have seen the submissions. They are indeed detailed.

The Tribunal's Decision

34. In its written Decision, which was unanimous, the Tribunal set out findings of primary fact in paragraphs 3-26. It summarised in paragraphs 27-29 the evidence it had received, and the procedure followed. It set out relevant law in paragraphs 30-32. No complaint is now made as to its self-direction in law. The Tribunal then set out its findings and conclusions in paragraphs 34 to 43.
35. In paragraph 34 the Tribunal found Mr Lambard's reasons for resignation to accord with his memo of 29 March – namely that he was subjected to an unfair Fitech test and medical, was disgusted with the length of time to deal with his grievance, and was not informed of the level to be achieved in the proposed test.
36. The Tribunal considered whether Mr Lambard's resignation derived from a serious breach of the employment contract by ECF. In paragraph 36 of its Decision the Tribunal was highly critical of ECF's handling of Mr Lambard's case between 13 June 2002 and 29 March 2003. The Tribunal said that it demonstrated how easy it is for a large organisation to lose touch with the concerns of an individual. The Tribunal said:

"One short interview with the applicant in July of 2002 at which the alternative test was explained in detail to him with details of the level at which he had to achieve and the date upon which he would take the test would have resolved this matter one way or another by the end of July 2002 at the latest."

37. In paragraph 37 of its Decision the Tribunal pointed out that Mr Lambard had been removed from operational duties when he was "clearly medically certified as fit" and the only question was as to his aerobic capacity. The Tribunal criticised the testing, as we have already explained. The Tribunal said:

"In our judgment the respondent have been allowed to continue undertaking his operational duties until he was administered an appropriate test. This test was clearly not appropriate. The applicant was therefore entitled to continue with operational duties, bearing in mind Dr Asbury cleared him as medically fit to carry out all duties until the respondents by the application of an appropriately agreed procedure determined that his aerobic capacity was insufficient for their operational requirements."

As we have seen from paragraph 36, the Tribunal envisaged that this could have been arranged quickly.

38. In paragraph 38 the Tribunal said that no attempt seemed to have been made within ECF to establish a test appropriate for those for whom the Chester Step test was inappropriate.
39. In paragraph 39 the Tribunal criticised Mr Blackett for producing a wholly inadequate response to the grievance. In paragraph 40 the Tribunal pointed out that a constructive response would have been an early meeting at which the new test would be explained, including the level that had to be achieved. The Tribunal point out that Mr Lambard was never told that 7.2 was the appropriate level for a man of his age on the Shuttle Run test. In paragraphs 41 and 42 the Tribunal criticise the grievance procedure, saying that no real effort was made to address Mr Lambard's concerns although there were notes on file referring to the need to write to him and explain the position.
40. The Tribunal conclusion is in paragraph 43 and represents in our judgment the essence of their reasoning.

"A fire fighter that is not allowed to fight fires is bound to feel dissatisfied. The respondents removed him from those duties based upon an inappropriate test and failed to address his complaints about that or to arrange a suitably agreed test which would either restore him to full operational duties or trigger the commencement of a capability dismissal process. He was left "in limbo" for ten months and his grievance through two stages only was dragged out over a period of ten months. In our judgment that was conduct likely to seriously undermine the trust and confidence in the employment relationship and the applicant was entitled to accept this repudiatory breach by the respondents."

Grounds of Appeal relating to fact

41. Ground a: The first ground of appeal relates to the Tribunal's conclusion that Mr Lambard was "passed as medically fit for duties" (paragraphs 11) "clearly medically certified as fit" (paragraph 37) and "Dr Asbury cleared him as medically fit to carry out all duties" (paragraph 37). On behalf of ECF Mr Ashley submits that these findings of fact are erroneous and unsupported by evidence. He points out that Dr Asbury never completed the form which has to be signed following a medical examination, except to refer to Mr Lambard's need to undergo the Shuttle Run test. At no point did she sign any document passing, clearing or certifying him as medically fit. Mr Ashley submits that this erroneous finding undermines the whole of the Tribunal's Decision. He submits that the Shuttle Run test was required for medical as well as physical fitness, and relies on the reference to a Step test in the initial of ECF to Mr Lambard in April 2004. He refers to Mr Walsh's second hand evidence as to Dr Asbury's views, cited in paragraph 11 of his Witness Statement.
42. We have no doubt that in the three expressions which Mr Ashley criticises the Tribunal adopts the word "medically" advisedly. It reflects a distinction which is grounded in the Statement of Conditions of Service, which we have quoted above, and in Dr Asbury's own evidence, which we have also quoted.
43. Accordingly when, in paragraph 11, the Tribunal says that Mr Lambard was "passed as medically fit for duties" the Tribunal was not falling into the error of supposing that Dr Asbury had found him physically fit for duties. The Tribunal was well aware that this was not the case. In out judgment there was ample evidence for the Tribunal to draw the conclusion that Dr Asbury passed him as medically fit for duties. It was her own evidence that she considered him medically fit for duties: we have already adverted to this. If he was medically unfit for duties no question of taking or passing the Shuttle Run test would arise: it would have been her duty to certify him medically unfit for duties. This she did not do. Indeed the Shuttle Run test itself (unlike the Chester Step test) was a test to exhaustion. It is very difficult to imagine a doctor sending him on such a test unless she considered him medically fit to undertake duties. We consider that there was evidence on which a Tribunal could reach the conclusion it did and that it was not perverse to do so. Similar considerations apply to finding that Dr Asbury cleared Mr Lambard as medically fit to carry out all duties in paragraph 37.
44. Different considerations apply to the phrase "when he is clearly medically certified as fit" in the early part of paragraph 37. The phrase "certified" would normally indicate a written certificate. Dr Asbury never produced a written certificate. We think, however, that at the beginning of paragraph 37 the Tribunal was considering the time when Mr Lambard was removed from duties, more than a fortnight prior to Dr Asbury seeing him. At this time his medical fitness was still covered by his prior medical examination. As the Tribunal found, the prior medical examination on 12 April 2000 had confirmed that he was fit for operational fire fighting. We think this is what the Tribunal was referring to when it said, at the beginning of paragraph 37, that he was medically certified as fit when he was removed from operational duties.
45. A distinction between medical fitness and physical fitness is, as we have seen, important in contractual terms. On the Tribunal's findings the power to remove Mr Lambard from duties under clause 21 did not arise. When the power was exercised there was no decision by the Occupational Physician. Nor was the Occupational Physician making a decision that Mr Lambard was medically unfit on 1 July. The power to suspend from operational duties exercised by ECF did not derive from clause 21.
46. In the course of his submissions under this paragraph Mr Ashley made a further submission that as at 13 June 2002 ECF were entitled to remove Mr Lambard from operational duties upon the basis of test undertaken, even though on the Tribunal's finding it was not appropriate and no appropriate test was available for him on that date. This was not a ground of appeal (as was pointed out by Mr Hodge, Counsel for Mr Lambard) and there was no application for permission to amend the Notice of Appeal. The Tribunal seems to have been content to assume that the power existed if an appropriate Fitech test was passed, but did not make that assumption where the Fitech test was inappropriate. We see no error of law in the Tribunal's Decision. We point out that the capability guidelines were never produced in the course of the hearing. We doubt whether we would have granted permission to amend if it had been sought.
47. Ground b: The second ground of appeal relates to the Tribunal's conclusion in paragraph 38 that no attempt had been made by any part of the Respondent Organisation to establish a test which was appropriate for those to whom the Chester Step test was not available. Mr Ashley submits that this was a perverse finding. He points in particular to the evidence of Dr Asbury, which we have summarised above, that she would send those who were on beta blockers or failed the Chester Step test by reason of anxiety to do the Shuttle Run test, and that this was a frequent occurrence. He submits (correctly) that he pointed this evidence out to the Tribunal in his closing submissions. The evidence is, indeed, plain in Dr Asbury's statement.
48. We reject this submission. We have no doubt the Tribunal was well aware that Dr Asbury sent fire fighters to do the Shuttle Run test. The point the Tribunal is making in paragraph 38 is that the Shuttle Run test was nowhere established for this purpose. It is not documented in the Fitech guidance or (so far as the evidence went) anywhere else. This point is of some significance, for if the test had been established it would have been a straightforward matter to point out to Mr Lambard firstly that it was the appropriate test (a matter which he was entitled to doubt, having twice been subjected to the Chester Step test, and having been told it was inappropriate only after he passed it with flying colours) and precisely what he had to achieve under the test (about which he was under a misapprehension never corrected).
49. In answering Mr Lambard's grievance Mr Blackett wrote on 27 August:

"…there are two clear test methods utilised by the service. The Bleep test for potential recruits and the Fitech test for existing personnel."

Mr Blackett would not have made this error if the Shuttle Run test (also known as the Bleep test) had been established not merely for new recruits but also for circumstances such as those of Mr Lambard.

50. The Tribunal found (paragraph 12) that Dr Asbury was unable to give any information to Mr Lambard about the Shuttle Run test as she had never administered one. If the Shuttle Run test had been incorporated into the Fitech guidance in the same way as the Chester Step test, Mr Lambard would have known that he did not have to achieve 9.6 as for a new recruit.
51. We are therefore not persuaded that the Tribunal erred in any way in its finding in paragraph 38 of the Decision.
52. Ground d: Mr Ashley submits that the Tribunal, in holding that Mr Lambard resigned for the reasons set out in his memo dated 29 March, reached a conclusion for which there was no evidence or was perverse. Mr Lambard relies on certain answers in cross-examination and says that the operative reason was that Mr Lambard could not get an answer about the level of fitness he had to achieve.
53. In our judgment there is nothing at all in this point. There was ample evidence on which the Tribunal could reach the conclusion it did, including Mr Lambard's Witness Statement, which formed part of his evidence-in-chief, and the memo itself. His inability to get an answer about the level of fitness he had to achieve was indeed part of the reason given in the memo dated 29 March. The Tribunal did not err in law in reaching the conclusion it did.

The Grounds of Appeal relating to reasons

54. Ground e: Mr Ashley submitted that the Tribunal's reasons were deficient because they did not deal with ECF's arguments justifying the grievance procedure. He referred to the detailed submissions which he had made in writing in paragraphs 8.1-8.7 of his written submissions. Mr Ashley's grounds were not developed in his amended Notice of Appeal or in his Skeleton Argument, but he did so orally. Mr Ashley submitted that the Tribunal did not deal with his argument on the question whether Divisional Officer Blackett complied with the time limit of responding within seven days (see paragraph 41 of the Decision). He submitted that DO Blackett was excused from doing so because the seven day time limit ran only from the discussion of the grievance with the Applicant: see paragraph 5 on page 1 of the grievance procedure. But the Tribunal found that Mr Blackett made no effort to discuss the case with Mr Lambard. There is a certain irony in ECF arguing that its failure to hold any discussion with Mr Lambard justified its delay in dealing with the grievance.
55. A number of the submissions within paragraph 8 of Mr Ashley's written submissions related to reasons for delay within ECF: see paragraphs 8.2, 8.4, 8.5 and 8.6. We do not think these submissions required to be recorded and dealt with individually by the Tribunal. In our judgment the Tribunal's overall conclusion that the grievance was delayed, that ECF needed to be pressed into action and that Mr Lambard should have been seen at an early opportunity more than suffices to tell ECF why it had won and lost on the question of the grievance procedure. There is, however, one further submission within paragraph 8 that we should specifically note. It was submitted on behalf of ECF that Mr Lambard was responsible for a period of delay between 27 August and 3 October. The Tribunal do not deal with this submission in terms, but note in paragraphs 18 and 20 of their Decision that Mr Lambard had stated on 24 August that he wished to go on to the next stage. It is possible that at this point the Tribunal are conflating two different stages of the procedure. The memo on 24 August came following delay at level one. On 27 August Mr Blackett dispensed with level one and decided the case under level two. There is an argument, albeit technical, that by doing so Mr Blackett dealt with the request to go on to the next stage. However, if the Tribunal was in error at this point, it is in our judgment an error that has no effect on its overall conclusion. At no stage did Mr Lambard express satisfaction with the letter dated 27 August. At all material times until October there was an outstanding Union grievance. When this was dealt with the Union made it clear that Mr Lambard wished to continue to the next stage. A meeting with Mr Lambard, or an enquiry of him, would in any event have made this clear to ECF. If the Tribunal made an error of fact at this point we are entirely satisfied that it does not vitiate its overall conclusions about the way in which Mr Lambard's grievance was handled.
56. Ground f: Mr Ashley submitted (we quote from his Skeleton) that the Tribunal's Decision failed to comment upon or provide a reasoned explanation for the rejection of almost every piece of evidence which was raised in ECF's favour during the course of the hearing. The amended Notice of Appeal sets out ten specific matters which it is alleged the Tribunal failed to deal with in the course of its Decision.
57. Mr Ashley's written Skeleton did not develop any of these points. However, he did so orally and we have listened to them with care. If it had not been for the complaints of misconduct and apparent bias which followed we would have been inclined to regard these submissions as the kind of trawl through a Tribunal's Decision which is sometimes pressed into service impermissibly to persuade the Appeal Tribunal that there is some error of law or inadequacy in the Tribunal's reasoning. Having considered them carefully, we reject the submission that this Decision is deficient in its reasoning. In our judgment it is a full Decision amply meeting the criteria set out in Meek v City of Birmingham District Council [1987] IRLR 250 and English v Emery Reimbold & Strick Ltd [2003] IRLR 710.
58. The ten particular submissions set out under this heading in the amended Grounds of Appeal are indeed in our judgment a ragbag of different arguments, some in pejorative terms. One of them (paragraph F) we will deal with specifically with the complaint of apparent bias and misconduct. Another (paragraph I) suggests that in some way the fact of the Shuttle Run test and the level to be achieved were no part of the second stage grievance. The suggestion is (to put is colloquially) that the goal posts moved as the grievance procedure went on. We repeat that the Tribunal were fully entitled to reach the conclusions they did about the grievance procedure, and we note that the original grievance was in writing and was never withdrawn.

The Grounds of Appeal relating misconduct/apparent bias

59. In Locabail (UK) Ltd v Bayfield Properties Ltd [2000] IRLR 96 at paragraph 3 it was said:

"The proof of actual bias is very difficult, because the law does not countenance the questioning of a judge about extraneous influences affecting his mind; and the policy of the common law is to protect litigants who can discharge the lesser burden of showing a real danger of bias without requiring them to show that such bias actually exists."

60. The test for such apparent bias is whether the fair-minded and informed observer, having observed the facts, would consider that there was a real possibility that the Tribunal was biased: see Porter v Magill [2002] 2 AC 357 at 494 H applied in the context of Tribunals by the Court of Appeal in Jiminez v London Borough of Southwark [2003] IRLR 477 at paragraph 25. The test in an objective one.
61. The premature expression of a concluded view or the manifesting of a closed mind by the Tribunal may amount to the appearance of bias. However, neither comments by nor questions relating to difficulties in the case of a party are in themselves suggestive of bias. But the premature expression of factual conclusions or anything which may prematurely indicate a closed mind is always unjustified. The judgment of the Court of Appeal in Jiminez v London Borough of Southwark contains at paragraphs 25-32 a valuable discussion of the principles at stake.
62. In accordance with its practice the Employment Appeal Tribunal invited comments from the Chairman and Lay Members after receiving Mr Bogle's Affidavit. In the light of Mr Bogle's assertion that no proper note was taken by the Chairman, his full note has been made available and is in our papers. ECF did not comply with the Appeal Tribunal's Practice Direction as to agreeing any other evidence required until the last moment. However, with the helpful cooperation of Mr Hodge a document has been placed before us entitled "Evidential Issues" which contains notes of other evidence to which Mr Ashley wished to direct our attention, together with the comments of Mr Lambard's representatives on the extent of its agreement. We have had regard to all this material. It was not suggested by either party that we should take any other evidence before reaching our conclusion.
63. We will deal first with specific allegations made by Mr Bogle. He suggests that the Chairman showed bias by raising the issue of Mr Lambard's high blood pressure at the time of the fitness test on 13 June. We do not accept that the Chairman in any way acted improperly in raising this matter or that it showed any apparent bias. It was in our judgment a relevant point. If the only default in the test had been its administration while Mr Lambard was on beta blockers, it might have been said that the error was in his favour, because beta blockers will tend to produce a better result. But when there was also a default in administering the test while Mr Lambard's blood pressure was high, the error cannot be said to have been in his favour. High blood pressure is associated with anxiety and might tend to produce a worse result. Once the Chairman had noted the point he was in our judgment well within his rights to raise it. It is in our judgment precisely the kind of point which a Chairman should raise, once it is in his mind, so that the parties have an a opportunity to deal with it. It may be that EFC's professional advisers considered that the Chairman was forming an adverse view by reason of his taking this point. But, considered objectively, we are entirely satisfied that no such view was justified.
64. In paragraph 5 of his Affidavit Mr Bogle complains that at the end of the first day during a discussion of housekeeping matters with representatives the Chairman said in relation to the proceedings "it was surprising that it had got this far" and "if there is a prospect of settlement I do hope that it can be explored". We find the Chairman's explanation, which is supported by that of the Lay Members, entirely satisfactory. He says:

"My remarks at the end of the first day were not intended to give any indication as to which side would be successful. Having regard to the cost to both sides of the second day, the relatively low damages award likely to flow from a finding in favour of the applicant in view of the short period to retirement and the moderate weekly pay involved, I expressed a hope that some form of reconciliation between parties who had worked together for 27 years could be achieved."

65. Sentiments of this kind expressed by a judge or chairman are not to be taken as evidence of partiality. See Jiminez at paragraph 32. Although Mr Bogle says that he and Counsel were left with the impression that the Chairman had already made up his mind, viewed objectively there is no justification for their conclusion. The Chairman did not express, and it is not alleged that the Chairman expressed, any opinion on the merits.
66. In paragraph 6 of his Affidavit Mr Bogle complains of a single answer by one Lay Member, Mr Adams. There is no allegation in the Notice of Appeal that Mr Adams was biased. In any event, we are entirely satisfied having regard to Mr Adams' explanation that what he said could not objectively be regarded as manifesting a closed mind. In paragraph 7 of his Affidavit Mr Bogle complains that the Chairman invited the last witness for EFC to come forward with the words "Mr Walsh, you're in the hot seat next". Mr Bogle says this may seem an insignificant comment. We agree with him. The Chairman says that he often uses the phrase accompanied by a smile and a gesture towards the witness table in inviting witnesses to come forward. Mr Adams and Ms Dallender-Jones support the Chairman. No complaint or protest was made at the time. We are not satisfied that the Chairman committed any act of misconduct in this respect, or in any way evidenced a closed mind. In paragraph 8 of his Affidavit Mr Bogle complains that the Chairman did not take a proper note of evidence. This matter was raised with the Chairman at a point when Mr Ashley believed the Chairman had not taken a note. The Chairman had taken a note. It was to do with ECF's assertion that by December Mr Lambard was not questioning what level of fitness he needed to achieve on the test. The note ("no question re level required") is perfectly adequate, given the documentary evidence available and the Witness Statements.
67. We have carefully reviewed the Chairman's notes. Given 40 pages of Witness Statements and a substantial bundle of documents, the notes are in our judgment adequate. More to the point, they do not demonstrate either misconduct or a closed mind. Answers which assist both parties are included. Mr Ashley seeks to make good his point that the Chairman's mind was closed by reference to material, on pages 10 -20 of the "Evidential Issues" document, which he says the Chairman did not note which was "relevant". We have looked that this part of the "Evidential Issues" document with care. Nothing in it comes within any measurable distance of persuading us that the Chairman's mind was closed, or that he had misconducted himself.
68. We turn finally to paragraph 3 of Mr Bogle's affidavit, in which he alleges that the Chairman gave the impression of favouring Mr Lambard and of hostility "throughout the proceedings". An allegation of this kind, made moreover by a professional person who should be acquainted with tribunal proceedings, always requires careful attention by an Appeal Tribunal. But, having given it such attention, we are quite unpersuaded that the Chairman misconducted himself or showed apparent bias by any objective test.
69. We take into account the following matters. The allegation is denied not only by the Chairman but also by the lay members. No objection was made on this ground at the time: this is never conclusive, but always relevant, and ECF's advisers had overnight to consider their position. Only one specific instance is given. One might have expected other instances to be forthcoming if the Chairman's interventions had been so striking as to cross the line into misconduct and evidence of apparent bias. The other allegations made by Mr Bogle in his Affidavit, which are more specific and therefore can be tested, we have found to be neither improper nor evidence of a closed mind.
70. Within paragraph 3 the only specific instance given relates to a question concerning the grievance procedure. The point being made by Mr Ashley as he explained it to us is the point which we have dealt with above – that the ground in the grievance procedure had moved, so that Mr Lambard was by December no longer concerned with his complaint that he did not know the level he had to achieve in the Shuttle Run test. We can well understand that this may have provoked an intervention from the Chairman to clarify the question. But we are not satisfied that any intervention was improper or indicative of a closed mind.

Conclusions

71. We have considered ECF's submissions individually and rejected them. We stand back to look at them in the round. We are satisfied that the Tribunal committed no error of law, that the Tribunal gave reasons which satisfy its legal duty, and that the Chairman did not evince bias or engage in misconduct. This appeal is therefore dismissed.