United Kingdom Employment Appeal Tribunal

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Cite as: [2006] UKEAT 85_5_106, [2006] UKEAT 0085_05_0106

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		BAILII case number: [2006] UKEAT 0085_05_0106
		Appeal No. UKEAT/0085/05

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HF

	At the Tribunal
	On 1 June 2006

Before

THE HONOURABLE LADY SMITH
MR P PAGLIARI
MR R THOMSON

(1) EDINBURGH PHARMACEUTICAL PROCESSES LTD
(2) DR S NEWLANDS APPELLANTS

DR A P LOTHIAN RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellants	Mr M McLaughlin, Solicitor Messrs Biggart Baillie Solicitors Dalmore House 310 St Vincent Street GLASGOW G2 5QR
For the Respondent	Mr G Bathgate, Solicitor Messrs Allan McDougall & Co Solicitors 3 Coates Crescent EDINBURGH EH3 7AL

SUMMARY

The tribunal found that the claimant had been subjected to detriment on grounds of sex, by her employers. She had been in their employment for a number of years. The last occasion on which discrimination was alleged to have occurred was almost three months prior to the lodging of her application with the tribunal. The respondents disputed that anything that happened on that date was discriminatory. The tribunal failed to make findings of fact and, despite lengthy summaries of evidence, failed to show that there was any evidential basis for a "continuing act" finding for the purposes of s.76(6)(b) of the Sex Discrimination Act 1975. The Employment Appeal Tribunal were also satisfied that their decision was perverse in various respects and that a bias case was made out. The claim was dismissed.

THE HONOURABLE LADY SMITH

Introduction

This is an appeal at the instance of the employer (and a director) from the decision of the Employment Tribunal sitting at Edinburgh, Chairman Mr A McArthur, registered with reasons on 21 September 2005, following a hearing that extended over thirteen days between 2 September and 22 December 2004. The appeal is at the instance of both respondents and we will refer to parties as claimant and respondents.

[2]

The tribunal decided that the first and second respondents discriminated unlawfully against the claimant on grounds of sex and awarded her the sum of £24,505.95 together with £11,478 as interest.

[3]

Before the tribunal, the claimant was represented by Mr Bathgate, who also appeared before us. The first respondents were represented by Dr Newlands, the second respondent, at the hearing, who also represented himself. Before us, however, both respondents had the benefit of representation by Mr McLaughlin, solicitor, who was responsible for the preparation of a well structured and clear notice of appeal which was of considerable assistance to us in preparing for the hearing.

The Relevant Law

[4]

The relevant law is contained in three sections of the Sex Discrimination Act 1975 ("the 1975 Act") and in a series of authorities.

[5]

Section 1(1)(a) of the 1975 Act provides:

"…..a person discriminates against a woman if-

(a) on the ground of her sex he treats her less favourably than he treats or would treat a man…"

[6]

By virtue of the provisions of section 5(3) a comparison of the cases of persons of different sex under section 1(1) must be such that the relevant circumstances in the one case are the same or not materially different, in the other.

[7]

Discrimination in the employment field is covered in Part II of the 1975 Act. By virtue of section 6(2)(b) it is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her by:

"subjecting her to …….detriment."

[8]

The provisions of section 76 of the 1975 Act include:

"(1) An employment tribunal shall not consider a complaint…unless it is presented to the tribunal before the end of –

(a) the period of three months beginning when the act complained of was done……

…………………………

(5) A …tribunal may nevertheless consider any such complaint …which is out of time if, in all the circumstances, it is just and equitable to do so.

(6) For the purposes of this section –

(a) ….

(b) any act extending over a period shall be treated as done at the end of that period ……………….."

[9]

The first chapter of relevant authority concerns appeals on grounds of perversity. The principles are well known and do not require to be rehearsed at length. We consider it sufficient to refer to two of the authorities relied on. In the case of Stewart v Cleveland Guest (Engineering) Limited

[1996] ICR 535

"This tribunal should only interfere with the decision of the industrial tribunal where the conclusion of that tribunal on the evidence before it is 'irrational,' 'offends reason,' 'is certainly wrong' or 'is very clearly wrong' or 'must be wrong' or 'is plainly wrong' or 'is not a permissible option' or 'is fundamentally wrong' or 'is outrageous' or 'makes absolutely no sense' or 'flies in the face of properly informed logic' ……………………………….What matters is the substance of the tribunal's decision looked at 'broadly and fairly' to see if the reasons given for the decision are sufficiently expressed to inform the parties as to why they won or lost the case and to enable their advisers to identify an error of law that may have occurred in reaching the conclusion."

More recently, in the case of Yeboah v Crofton

[2002] IRLR 634

"Such an appeal ought only to succeed where an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached."

The second chapter of relevant authority concerns the matter of a judge's duty to give reasons. The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, set out, in rule 30, the obligations of a tribunal and chairman in that respect. In particular Rule 30(6) provides:

"Written reasons for a judgment shall include the following information –

(a) the issues which the tribunal or chairman has identified as being relevant to the claim;

(b) if some identified issues were not determined , what those issues were and why they were not determined;

(c) findings of fact relevant to the issues which have been determined;

(d) a concise statement of the applicable law;

(e) how the relevant findings of fact and applicable law have been applied in order to determine the issues; and

(f) where the judgment includes an award of compensation or a determination that one party make a payment to the other, a table showing how the amount or sum has been calculated or a description of the manner in which it has been calculated."

[12]

The principle of fairness and the right of parties to be given a clear and intelligible explanation of a judicial decision that lies behind that rule was also discussed relatively recently, by the Court of Appeal, in the case of Flannery and Another v Halifax Estate Agencies Ltd (trading as Colley's Professional Services)

[2000] 1WLR 377

"That today's professional judge owes a general duty to give reasons is clear …………………………

We make the following general comments on the duty to give reasons:

(1) The duty is a function of due process, and therefore of justice. Its rationale has two principal aspects. The first is that fairness surely requires that the parties especially the losing party should be left in no doubt why they have won or lost. This is especially so since without reasons the losing party will not know …..whether the court has misdirected itself, and thus whether he may have an available appeal on the substance of the case. The second is that a requirement to give reasons concentrates the mind; if it is fulfilled, the resulting decision is much more likely to be soundly based on the evidence than if it is not.

(2) The first of these reasons implies that want of reasons may be a good self-standing ground of appeal. Where because no reasons are given it is impossible to tell whether the judge has gone wrong on the law or the facts, the losing party would be altogether deprived of his chance of an appeal unless the court entertains an appeal based on the lack of reasons itself.

(3) The extent of the duty, or rather the reach of what is required to fulfil it, depends on the subject matter………….

(4) ………………..the judge must explain why he has reached his decision. The question is always, what is required of the judge to do so; and that will differ from case to case. Transparency should be the watchword."

In that case, the Court of Appeal rejected the argument that because there was a stark choice between the two experts, the judge could do no more than prefer one of them. At p.382–3, they said that there were four things wrong with that approach:

"First, we do not know whether the assumed thought process was the judge's actual thought process. Second, on what the judge said we do not know why he preferred the defendant's experts, nor whether that was for good reason or bad. We do not know because reasons were not given. Third, if the judge had the difficulty of choosing between the two accounts assumed ….he must at least have been close to the situation where the cause of the damage could not be resolved…… But if this was his difficulty he should have said so. Fourth, why did the defendant's expert's performance in the witness box tip the scales? The judgment does not tell us.

………………………………….

…in our judgment, this judge was under a duty to give reasons and did not do so. Without such reasons, his judgment is not transparent, and we cannot know whether the judge had adequate or inadequate reasons for the conclusion he reached."

[14]

For reasons which we will explain, we consider the principles that can be deduced from Rule 30 and the discussion in Flannery to be pertinent to any consideration of the present appeal.

[15]

The third chapter of authority which we require to bear in mind concerns the subject of bias, an aspect of the Article 6 right to fair and public hearing before and independent and impartial tribunal. In Porter v Magill

[2002] 2 AC 357

"….the question is whether the fair- minded and informed observer, having considered the facts would conclude that there was a real possibility that the Tribunal was biased." (per Lord Hope of Craighead)

In the case of Lawal v Northern Spirit Limited [2004] 1 AER 187, Lord Steyn approved comments made by Kirkby J in another case to the effect that the reasonable member of the public is neither complacent nor unduly sensitive or suspicious and, at p.864-5, said:

"…one starts by identifying the circumstances which are said to give rise to bias ….[a court] must concentrate on a systematic challenge and apply a principled approach to the facts on which it is called to rule."

[17]

In the case of R v Spear

[2003] 1 AC 734

Findlay v United Kingdom (1997) EHRR 221

"…must also be impartial for an objective viewpoint, that is it must offer sufficient guarantees to exclude any legitimate doubt in this respect".

Then, in the case of R ex parte PD v West Midlands and North West Mental Health Review Tribunal

[2004] EWCA Civ 311

"…the search is for the reaction of the fair minded and informed observer. The court has to apply an objective assessment as to how such a person would react to the material facts."

A recent and useful example of circumstances which persuaded the Employment Appeal Tribunal to uphold an appeal in which it was alleged that the tribunal, particularly the Chairman, gave the appearance of bias during the hearing, is the case of Miss X H Diem v Crystal Services PLC UKEAT/0398/05/DM. We note that the claimant there was Vietnamese, that she was claiming to have been the object of victimisation contrary to the Race Relations Act 1976 s.2, that the Chairman questioned her at some length as to why she was claiming to be non-white and that he said to her that her skin looked whiter than his. In their conclusion, the Employment Appeal Tribunal said:

"Complaints of race discrimination require sensitive handling by Tribunals. The importance of understanding diversity amongst litigants coming before Tribunals has been recognised increasingly in recent times ….High standards of understanding and communication by all judicial officers are rightly expected.

We are here not concerned with actual bias but the perception of bias, according to the standards of the modern fair–minded observer. That perception extends to the perception of unconscious bias.

…..we conclude that the Chairman's desire to establish whether in evidence, the Claimant was departing from her case as outlined by her Counsel at the outset of the hearing was perfectly legitimate. Where that enquiry crossed the line, in our judgment, was in prolonged questioning as to how the Claimant viewed her own skin colour and in making comparisons with the Chairman's own skin colour. We find that the fair minded observer would conclude that the remarks made were likely to cause the Claimant to feel unsettled, humiliated and embarrassed. We emphasise that this, we think, would be the perception of that observer, whether or not the Claimant subjectively experienced those feelings."

The Facts

[20]

It would be normal for us, at this stage of our judgment, to set out a summary of the facts of the case. That is, however, something that we cannot here do, because of the absence of findings of fact in the tribunal's judgment. Although, at paragraph 4, the tribunal state that they will narrate the general tenor of the evidence of each of the witnesses and then indicate the findings that they make, they fail to do the latter. The former is an exercise which extends throughout paragraphs 5–628 in which they summarise and paraphrase what each witness said in evidence. At paragraph 629, they assert:

"We have recorded the evidence with some care."

[21]

They then proceed with some discussion of credibility. At paragraph 646, they say:

"All in all therefore, we incline to the view that, on the balance of probabilities, the account given by the claimant of the content of much of what she was told by Dr Newlands is true."

[22]

At paragraph 655, they comment:

"As we say, we are of the view that the version of events given by the claimant is in substance, correct. In particular, we reach the conclusion that the language used by the second respondent over the period of the claimant's employment contained a sexual content of the kind which the claimant described, and that the conduct was unwanted."

[23]

Nowhere, however, has the tribunal made any findings of fact as to what happened, where, when or between whom. Despite an inordinately lengthy summarising and paraphrasing of the evidence of each witness, they fail to state what evidence they have accepted and what they have rejected beyond the broad indication that, in general, they accepted the claimant's account of what was said to her by the second respondent. We note, from that indication, that the tribunal's stated acceptance of the claimant's account extends only to some of what she told them about what the second respondent said to her. They appear to have discounted any evidence as to anything he did or tried to do to her.

[24]

We should, at this point, indicate that whilst we recognise the reference back procedure that is available to us, as discussed in the cases of Burns v Consignia (No 2)

[2004] IRLR 425

Barke v Seetec Business Technology Centre Ltd [2005] IRLR 633

What we can identify is as follows. The claimant was employed by the first respondents as, firstly, an organic chemist and subsequently, a laboratory manager, between December 1997 and 21 March 2002. She alleged in evidence that, although she was very friendly with the second respondent at first, she came to the conclusion that he was a "filthy talker" in respect that he made comments about both male and female private parts, something which she found disgusting.

[26]

The claimant also said that the second respondent noticed personal details about her and that she disliked that. She alleged that he wanted her to dye her hair and wear red nail varnish, that he would pretend to cut off her grey hairs and the he would try to touch her legs. No dates of the alleged conduct appear to have been specified (other than, under reference to some alleged copy diary entries though the chairman accepted that some of the dates were wrong) nor its frequency.

[27]

It does not appear to have been disputed that on 21 March 2002, the claimant collapsed at work and was taken to hospital by the second respondent. There were no allegations of conduct of the above type having occurred on that date. It was not alleged that the claimant's collapse was caused in any way by the second respondent's conduct. The tribunal characterise his conduct on that date as having been deliberately "intrusive" (paragraph 648). There were two aspects to it: one was that they said he led the hospital staff to believe that he was the claimant's husband. The tribunal do not explain how they reached that conclusion in the face of them having before them the relevant Accident and Emergency department sheet in which it is recorded that the claimant attended hospital with a "work colleague". The other was that he asked questions the answers to which he was not entitled. No specification is given of what those questions were or to whom they were asked and there is no indication of the claimant having been involved in either aspect of the alleged conduct.

[28]

All the claimant's allegations were, clearly, strongly refuted by the second respondent. In support of his own denials, he relied on the fact that notwithstanding the extent of them, no witness spoke to having seen or heard anything untoward happening between him and the claimant. That was in circumstances where 20 witnesses had given evidence and some 12 of then had been able to observe the interaction between the two of them in the workplace over a considerable period. He also pointed to the fact that diaries in which she had, allegedly, kept a contemporaneous record of the abuse had been destroyed and that documents which she alleged to be copies of entries therein had been shown to be wrong in respect of the dates alleged (some being non- work days) and were, in any event, of questionable veracity because of the way in which they were written. Further, he pointed to the claimant having accepted that she frequently had lunch with him and gave him presents and cards. He also relied on the fact that she had remained in the employment of the first respondents for such a long time.

[29]

We can also discern from what is recorded by the tribunal that the claimant's credibility was attacked further by reference to the fact that at one point of her evidence she attributed a hearing difficulty from which she suffers to her employment by the first respondents, saying that she had not suffered from any hearing loss prior to entering their employment whereas she had to concede in cross examination that her medical records showed that she had suffered from deafness in both ears for a year prior to starting work with them.

[30]

As regards the matter of lunches , gifts and cards , the claimant is not recorded as having given any evidence as to her reasons for doing so or, indeed, being asked for her reasons at any stage. We note that, in addition to giving evidence at, it seems, some length at the outset, she was recalled to give further evidence later on in the hearing.

[31]

The claimant appears to have given evidence that, at the insistence of her husband, she wrote a letter to the second respondent dated 21 August 2001 in which she made general complaints about his conduct to her (the text of the letter is set out at paragraph 55). The second respondent took no action in response since, according to his evidence, although he regarded it as a complete fabrication, he had become suspicious of the claimant by then and felt trapped by her by that stage.

Psychiatric / Psychological Evidence

[32]

Dr Colin Rodger, consultant psychiatrist, was called as a witness for the claimant, to speak to a report that he had prepared in respect of her dated 19 February 2004. It is evident from that report that Dr Rodger was not advised that the claimant had frequently lunched with the second respondent or that she had given him the presents and cards to which we have referred. We were advised that that was a matter which was raised with him by the Chairman. Mr McLoughlin advised that the second respondents' recollection was that Dr Rodger had answered by saying that it was "possible" that such actions accorded with those of a victim who was trying to appease a bully. Mr Bathgate approached matters on the basis that Dr Rodger's evidence had been that such actions were not inconsistent with those of such a victim. The tribunal, however, state, at paragraph 447:

"Dr Rodger indicated that he was quite satisfied with the claimant's account of the history of matters. He was asked particularly about whether the giving of gifts and sending cards was in any sense inconsistent with his conclusions. His reply was in the negative. Such a circumstances (sic) would be explained by the victim seeking favour with the bully."

and at paragraph 645:

"As for the giving of presents to Dr Newlands, we believe that the evidence of Dr Rodgers is correct, to the effect that the victim will often seek to appease the bully."

[33]

Dr William McKinlay, clinical psychologist, was called as a witness for the respondents and gave evidence under reference to his report dated 29 August 2003. There is no indication of the same question regarding lunches, gifts and cards, having been asked of him as was asked of Dr Rodger. He raised a different question, though. It is recorded by the tribunal at paragraph 630:

"Dr McKinlay had certain problems in regard to the claimant. Why he asked, as we have repeatedly asked ourselves, should an intelligent, well educated woman, if she is speaking the truth, have put up with language of the type described from Dr Newlands, for so long without walking out of the premises, job or no job. We shall return to that question later."

They never do.

The Tribunal's Judgment

(a) The claimant's allegations of discrimination:

[34]

At paragraphs 631-635, the tribunal set out what they refer to as:

"…four examples of matters which in our view affect the claimant's credibility."

[35]

They do not explain what matters comprise the full list of the matters affecting her credibility from which these examples are drawn. The first of the four examples is the claimant's evidence as to her hearing loss. The tribunal say:

"That answer is, as the claimant must have appreciated, to be regarded as wholly inconsistent with the information which she gave to the doctor or doctors at the North Staffordshire Hospital."

[36]

The second is the matter of the giving of presents and cards. We have already referred to the way in which the tribunal deal with that, at paragraph 645. The third is that the dates of some the diary entries put forward by the claimant as copies of her original entries, were clearly wrong. The fourth concerned the destruction of the principal diaries. The tribunal say, at paragraph 635:

"...the evidence pointed to the throwing out of the principals of her personal diaries after she had consulted a solicitor. We find it difficult to understand why these principals should have been thrown out at such a time, even after the copying of the relevant entries had taken place."

[37]

Later on in their judgment, the tribunal deal with each of these matters which they openly acknowledge as being problematic for the claimant's credibility. They dispose of the evidence regarding her hearing at paragraph 644 where they say that they are prepared to accept that her bitterness towards the respondents accounted "in large measure" for the conflict in her evidence which they had identified. They do not say what else accounted for it or why bitterness towards the respondents would make her lie about that matter but not about other matters.

[38]

They dispose of the problem with the diary entries by commenting, again at paragraph 644 , that although it had been shown that they were not contemporaneous, that did not necessarily mean that they were wrong.

[39]

They dispose of the problem regarding the giving of presents under reference to Dr Rodger's evidence, as we have already observed.

[40]

They dispose of the problem of the destruction of the diaries by saying, at paragraph 646, that they were prepared to accept that that action was "simply foolish".

[41]

At paragraph 637 they indicate that they are turning to the evidence of the second respondent.

[42]

Their first comment does not, however, relate to his evidence at all. They say:

"Firstly, the complaints of the claimant, in regard to the matter of sexual content, as alleged, of Dr Newlands' conversations, if untrue, could only be regarded as the product of an evil mind. We do not believe that the claimant is evil. We do not believe that her state of mind would in any event ever have influenced her to fabricate complaints of the kind she has made."

[43]

They go on and deal with the evidence about the letter that the claimant wrote to the second respondent in August 2001 and proffer the view that any responsible business manager would, if faced with such allegations, have taken steps to discipline the employee or dismiss her, if the allegations were false. We do not see any indication of the possible range of responses on the part of a business manager finding himself in such circumstances having been explored in evidence. Surprisingly, the tribunal do not explain how a reasonable business manager could have been expected to react by taking the serious step of dismissal simply in reaction to what he regarded as unfounded criticism of him being levelled by an employee.

[44]

The tribunal reject the second respondents' evidence that he felt trapped by the claimant as being "pure invention", because, it seems:

"…there is nothing in the contemporaneous records or in any of the other evidence, to support any such conclusion."

[45]

We observe, in passing, that there was no independent source of evidence that supported the claimant's allegations either.

[46]

Their fourth observation regarding the respondents' evidence was that much of it was:

"…of the character of 'any stick to beat the dog with'." (paragraph 642).

[47]

This seems to have been prompted by the fact that the respondents' led witnesses to discredit the claimant. At paragraph 643, they say:

"Indeed, we had the general impression from many of the witnesses adduced by the respondents that they had been encouraged long after (and in some cases years after) the relevant events, to make criticisms of the claimant with the object of discrediting her."

[48]

No further or other explanations are given by the tribunal for the conclusion expressed at paragraph 646, to which we have already referred, that they found that much of what the claimant said she was "told by Dr Newlands is true." In stating that much of it was true, the tribunal clearly imply that, as regards some of it, they were not satisfied that it was true. They do not, however, specify which parts of the allegations fell into that category.

(b) Time Bar

[49]

An important issue of time bar arose in this case. The claimant had presented her application to the Employment Tribunal on 19 June 2002. To be timeous, her claim required, accordingly, to be in respect of an act of discrimination that occurred no earlier than 20 March 2002 (Sex Discrimination Act 1975 s.76(1)(a)) or in respect of an act of discrimination extending over a period ending no earlier than that date (s.76(6)(b)). No question of whether or not it was just and equitable to allow the claim to he heard though late arose (s.76(5)), since it was made explicit in the submissions presented to the tribunal on behalf of the claimant that no such application was being made.

[50]

The tribunal dealt with the issue by firstly referring to the evidence about the claimant being taken to hospital on 21 March 2002. As we have noted, they described the second respondent's behaviour as being deliberately intrusive in two respects. At paragraph 651, they state:

"…we conclude that the second respondent did, by reason of his intrusive conduct, treat the claimant less favourably than he treated or would have treated a man in these circumstances. We have no doubt whatever that the treatment so afforded to the claimant was on the ground of her sex. The claimant was employed by the first respondents. The treatment given to the claimant by the second respondent on that occasion amounted to a detriment."

[51]

They then go on and state, at paragraphs 653 and 654:

"In these circumstances, no question of time bar arises. That is because the originating application of the claimant was presented within the period three months beginning when the act complained of was done (Section 76(1)).

Furthermore, in terms of Section 76(6)(b), any act extending over a period shall be treated as done at the end of that period."

[52]

They do not discuss the application of section 76 any further. In particular, there is no discussion of how and why it is that what they accept as true of the claimant's account of what the second respondent said to her could be regarded as part and parcel of what occurred on 21 March 2002 so as to be capable of properly being regarded as a continuing act.

Submissions for the Respondents

[53]

Mr McLoughlin began by referring to the tribunal's failure to make findings in fact. Without making such findings how, he asked, were they entitled to make conclusions, particularly in a case which was not a simple one and where the credibility of the two main protagonists was at issue?

[54]

He then referred to the fact that extensive written submissions had been lodged in response to the tribunal having directed parties to do so. The respondents' submissions had contained about thirty separate points challenging the claimant's credibility. The second respondent had understood that he would be able to make oral submissions also, on 22 December 2004, the last day that parties had appeared before the tribunal. He was not, however, invited to do so. Mr Bathgate had, though, been asked a number of questions and had been able to address them in respect of his submissions for the claimant. Mr McLaughlin referred to paragraphs 627 and 628, where the tribunal state:

"…Written submissions were lodged on behalf of the claimant. Written submissions were also lodged on behalf of each of the respondents.

We consider it unnecessary to refer to these written submissions. In essence the matter is one of credibility."

[55]

In these circumstances, Mr McLaughlin submitted that the tribunal had not considered the respondents' written submissions and they had not been given an opportunity to put them orally to the tribunal. That was a failing in a fundamental matter.

[56]

He turned then to the tribunal's statement at paragraph 630 to the effect that they recognised that they needed to return to the issue raised by Dr McKinlay and to their failure to do so. He submitted that it was perverse of the tribunal to have concluded that the throwing out of the claimant's diaries could be dismissed as simply foolish.

[57]

Mr McLaughlin made some submissions relating to the tribunal having evidently misrecorded evidence about what was said by the claimant's husband in a telephone conversation on 21 March and relating to the content of the documents that the claimant said were copies of her original diary entries. They were not pressed, however, as he fairly conceded. His principal arguments lay elsewhere.

[58]

As regards the tribunal's observations at paragraph 638, to the effect that the claimant could not falsely have made the allegations about the second respondent that she did unless she had an evil mind and that they did not believe that she was evil, Mr McLaughlin submitted that the tribunal's conclusion was perverse. Firstly, cases did not turn on why people did things but on what it was that they had done. Secondly, that someone was "evil" was not the only explanation for them making false allegations.

[59]

Regarding the tribunal's criticism of the respondents for leading evidence from witnesses to discredit the claimant, referred to by them as "any stick to beat the dog with" (paragraph 642-3), Mr McLaughlin submitted strongly that such criticism was wholly inappropriate in a case where credibility lay at its heart. It was not at all surprising that, faced with the claimant's allegations, the respondents sought to refute them by leading what was a perfectly legitimate line of evidence. The claimant had led evidence from Neil Duffy for the sole purpose of criticising the second respondent – he had said in evidence that the second respondent had rudely mimicked him – but she was not criticised for having done so. Further, much of the evidence led on behalf of the respondents from the witnesses that was the subject of that criticism was evidence about the quality of the relationship between the claimant and the second respondent, in support of the respondents case that her allegations were not credible in the face of accounts of her having willingly engaged with the second respondent beyond the immediate requirements of work. Instances referred to involved her having son doing some work for the company website, her storing company property in her garage and her agreeing to go on a trip south of the border.

[60]

Mr McLaughlin founded also on the tribunal's treatment of the claimant's evidence about the cause of her hearing loss. She had, he said, been caught out in a way which was patently untruthful and it was perverse of the tribunal to excuse her having done so in the way that they did. Further support for his submission that the tribunal's approach was perverse could, he submitted, be gained from the way in which they had dismissed the second respondent's assertion that he had not responded to the claimant's letter of complaint because he felt he was trapped (paragraphs 640–1); the second respondent had not, he pointed out, lied nor was there any inconsistency in the evidence for the respondents. Yet he was condemned as having produced "pure invention"; a double standard appeared to be being applied.

[61]

Further support for a general submission that emerged from this part of his argument could, Mr McLaughlin said, be gained from the way in which the tribunal had dealt with the issue of whether the claimant's allegations were credible given that she had lunched with the second respondent so often and had given him gifts and cards. The tribunal had disposed of the matter on the basis of Dr Rodger's hypothesis but it was hypothesis for which there was no basis in fact in the evidence. The claimant had not said why she did these things and in the absence of that, Dr Rodger's hypothesis did not matter.

[62]

Separately, Mr McLaughlin submitted that the tribunal had misdirected itself regarding jurisdiction in respect that the claimant's case was evidently time barred. It was not possible to ascertain what they were relying on to reach their conclusion that the second respondent was deliberately intrusive on 21 March (paragraph 648). Even if it was a conclusion that was justified, their statement at paragraph 651 that it was treatment afforded on the ground of sex did not meet the statutory requirement for a gender specific act. There was no evidence that the second respondent would have treated a man any differently. Further, the tribunal had made no attempt to explain how they reached the view that there was a continuing act for the purposes of s.76(6)(b). Even in their summaries of evidence they gave no indication of the timing and extent of the allegations. Were the events complained of happening weekly, monthly, intermittently or randomly? When did they start? When had they last occurred prior to 21 March? Were they ever worse? Were they ever better? Without such information, it was not, he submitted, possible to tell whether what happened on 21 March could properly be regarded as the end of a continuing course of conduct.

[63]

Without evidence properly to support a finding that they could, the claimant had not established that the tribunal had jurisdiction.

[64]

Turning to the matter of bias, Mr McLaughlin submitted that it had been demonstrated that there was a real possibility of bias having occurred. In the usual way, the Chairman and members had been asked for their responses to the specific allegations of bias made and he referred to the Chairman's letter of response dated 30 December 2005. He drew our attention to the fact that, in the first page of the letter, unprompted and unasked, the Chairman had set out the history of other complaints having been lodged with the Employment Tribunal by the second respondent and to the fact that his solicitor had withdrawn from acting . It was odd that he had done so. We agree that it is puzzling. It is difficult to resist the conclusion that the intention is to cast the second respondent in a poor light, something which appears as singularly unfortunate and inappropriate in a case where the tribunal were critical of the respondents for leading evidence for discrediting purposes.

[65]

There were four principal aspects to the bias case. Firstly, the second respondent had gained the clear impression from what was said by the Chairman at the Preliminary Hearing in February 2004 that he was being told that his prospects of successfully defending the action were virtually nil. Mr McLaughlin very fairly stated, however, that it was accepted that he was not told that in so many words. Secondly, the Chairman became impatient and brusque with the second respondent. He, for instance, stopped him from noting down witnesses' answers as they came out. Thirdly, he took over examination and cross examination of witnesses to an extent that the second respondent felt that the Chairman was deciding how his case should proceed. He did not let him read out the statement that he prepared to give as his own evidence in chief. Fourthly, on at least eight occasions, the Chairman stopped the second respondent from asking any further questions by telling him that there was no need "to beat your wife to death with a stick".

[66]

Under reference to the responses from the Chairman and members, Mr McLaughlin submitted that enough was accepted as having occurred to support the case of bias. In particular, the Chairman accepted that he frequently indicates that a witness is not obliged to answer a question by referring to the example of "have you stopped beating your wife?". Further, one of the members said that she could understand to a degree why the second respondent said that the Chairman was impatient and disallowed lines of questioning which he saw as relevant and the other confirmed that the Chairman had acted as an unpaid examiner in chief and had conducted cross examination. The Chairman had also confirmed that he conducted cross examination for the second respondent and assisted him in leading his evidence in chief.

[67]

Mr McLaughlin referred, in particular, to the comment regarding wife–beating and submitted that its use in a case where it was alleged that the second respondent had been involved in inappropriate conduct towards a woman, including inappropriate touching, was bound to give the impression of bias. Further, in all the circumstances, a reasonable member of the public would have had doubt about the impartiality of the tribunal Chairman.

[68]

Finally, he made submissions regarding the awarding of interest which, he pointed out, amounted to almost half of the principal award. The lapse of time had, though, occurred due to a number of factors. The only postponement on the motion of the claimant was that which occurred from June to September 2003. Otherwise, the delays in the case were not the fault of the respondents. They should not, accordingly, have been penalised in this way.

Submissions for the Claimant

[69]

Mr Bathgate opened his submissions by commenting that this was a difficult case. He accepted that it was obvious that there was no statement by the tribunal that they made any findings of fact; the 600 or more paragraphs were not findings in fact. The question was, though, whether, looking at the decision as a whole, it was possible to conclude that there were findings of fact despite the absence of such a statement. He submitted that paragraphs 645 and 655 did contain findings regarding the salient issue of the acceptance of the claimant. Their acceptance of her as there stated could be seen as elevating her evidence to the status of findings of fact.

[70]

He accepted that Rule 30 was the statutory governing of the format that a judgment of the Employment Tribunal should fit.

[71]

As regards the matter of the written submissions, Mr Bathgate submitted that the tribunal's comment should not be read as indicating that they had not considered them; simply, it showed that they did not consider it necessary to refer to them within the body of their judgment. He did, however, confirm that, on 22 December, the last day of the hearing involving parties, he was asked two questions, one regarding the level of compensation and one regarding the apparent conflict in the claimant's evidence as to the cause of her hearing loss. The Chairman had, he said, then commented on the length of the respondents' submissions and asked him if he had anything to add to them.

[72]

Regarding the respondents' case of perversity, Mr Bathgate submitted that it was a high test that was not met. He referred to the case of Retarded Children's Aid Society Ltd v Day [1978} IRLR 129 for the passage in which Lord Russell warned against the Employment Appeal Tribunal searching around with a fine tooth comb for a point of law . He also referred to two passages in Kearney & Trecker Marwin Ltd v Varndell & ors [1983] IRLR 335 one in which the Court of Appeal commented that a conclusion of fact with which an appeal tribunal disagrees gives rise to no ground of appeal provided that it is justifiable on the evidence. In the other, at paragraph 35, the Court referred to earlier guidelines in which it had been stated that a tribunal was expected to record parties' contentions and make all necessary findings of fact in relation to them and also to the stricture that they were only guidelines; the overriding test was:

"..is the Tribunal providing both parties with the materials which will enable them to know that the Tribunal has made no error of law in reaching its findings of fact?"

[73]

He submitted that the tribunal had found the claimant to be credible and that that was a matter entirely for them. Regarding the points of detail upon which, as we have indicated, Mr McLaughlin did not dwell, he submitted that the respondents were seeking to have this tribunal usurp the functions of the Employment Tribunal.

[74]

Regarding the submissions made that the tribunal's criticisms in paragraphs 642-3 were inappropriate, Mr Bathgate submitted that those paragraphs showed that the tribunal were just highlighting that much of the evidence did not lead them to the conclusion that the claimant's version of events must not be credible; the evidence given by those witnesses did not undermine her credibility. Thus put, Mr Bathgate's submission appeared to be to the effect that the tribunal were entitled to take as a starting point that the claimant was to be accepted as credible and they could then look to see if anything in the respondents' case dissuaded them of that.

[75]

Regarding the claimant's evidence about the cause of her hearing loss, Mr Bathgate submitted that the tribunal had not attached weight to her bitterness but it was assessed as the cause of the conflict in her evidence.

[76]

Regarding the respondents' submission that, without actual evidence from the claimant as to her reasons for lunching with the second respondent and giving him gifts and cards Dr Rodger's evidence ought not to have been relied on as it had nothing more than the status of hypothesis, all that Mr Bathgate seemed able to respond was that Dr Rodger's evidence was that it was not inconsistent with the occurrence of abuse that the claimant should do these things. That was, he submitted, enough. The tribunal were entitled to dispose of the matter in the way that they did.

[77]

Regarding the issue of time bar, Mr Bathgate sought firstly to submit that the Accident and Emergency sheet ought not to be seen as determinative of the issue of whether the second respondent led the hospital staff to believe he was the claimant's husband. Secondly, he accepted that there was nothing in the summaries of evidence provided that pointed to detriment on the grounds of sex being meted out to the claimant on 21 March at the hospital. However, what was said in paragraph 651 should be seen as a relevant finding in fact on that matter. Whilst expressed as a conclusion, this tribunal would have to be able to say that no reasonable tribunal could have so concluded and that could not be said. The behaviour at the hospital was, he said, similar to what had happened before.

[78]

Mr Bathgate did not submit that the summaries of evidence showed that there had been a continuing act of the same character culminating in what happened on 21 March. He did, however, submit that the issue of whether or not there should have been an extension of time on the ground that it was just and equitable to allow the claim, though late had not been canvassed and that in the event that we were inclined to favour the respondents' submissions on time bar, there should be a remit for that matter to be considered. However, he subsequently seemed to accept that that was a difficult submission for him to make since, in his written submissions, he had specifically indicated that the claimant was not asking the tribunal to consider an extension of time on "just and equitable" grounds.

[79]

Regarding the bias case , Mr Bathgate was content to leave matters on the basis of the written material provided in the letters and affidavits contained in the bundle. For the avoidance of doubt, he accepted that the Chairman had used the "there's no need to beat your wife to death with a stick" expression referred to by the respondents.

[80]

Regarding the matter of interest, Mr Bathgate's approach was to say that "hiccups happen" and litigants just had to accept that although he did also accept that it seemed right that if a party had not caused delay then they should not have to pay for it. He thought that the matter of interest could be "sorted out" without a remit.

Discussion

[81]

It is a matter of considerable regret that, despite the considerable efforts that have clearly gone into this case in the course of its history so far, we have been faced with an unduly lengthy tribunal judgment which fails to achieve that which can reasonably be expected of any such judgment. It does not clearly identify the relevant issues of fact and law. It wholly fails to make findings in fact; we do not accept Mr Bathgate's submission that, in the circumstances, the summary of the claimant's evidence or the broad general comments in paragraphs 646 and 655 can be seen as having the status of findings of fact or that the baldly stated conclusion in paragraph 651 regarding the events of 21 March should be regarded as such. Indeed, we are not sure that Mr Bathgate was himself convinced that that was a tenable position although we can understand why he felt driven to adopt it. The judgment does not contain a sufficient statement of the applicable law; the requirements of sections 1 and 6 of the 1975 Act are not even acknowledged. In these circumstances, the tribunal have not explained how relevant findings of fact have been applied to the relevant law and how the issues have been determined in the light thereof. Further, the tribunal give a wholly inadequate explanation of their decision on interest notwithstanding the very substantial award thereof that they have produced.

[82]

It may well be that the above failures are to be explained by the tribunal becoming diverted by the unnecessary task that they set themselves of summarising all the evidence in the judgment leading them to overlook the need to make findings of fact in respect thereof. That task was, no doubt, an arduous one, particularly when carried out, as it appears to have been, many months after the end of the hearing. It may, equally, have been that the tribunal became diverted by the challenges presented by the fact that the respondents were represented by the second respondent, who was not legally qualified and not familiar with tribunal procedure. There seems no doubt, after all, from a reading of their response letters alone, that the Chairman became impatient with him. There may be other reasons. It is, however, not really for us to speculate as to why the judgment is in the form that it is. The point is that its form is, for the above reasons, quite deficient.

[83]

We turn then to the question of whether the deficiencies of the judgment are such as to cause us to uphold the respondents' submissions regarding it. In short, is it indicative of the tribunal having erred in law and is it indicative of a perverse decision having been reached?

Time Bar

[84]

We propose to deal firstly with the critical issue of time bar. As we have already observed, given the date that the claimant lodged her application, it was not open to the tribunal to find that they had jurisdiction unless there was evidence on which they could be satisfied that the claim was for an act of discrimination no earlier than 20 March or that the claimant had been the victim of a continuing act which ended no earlier than that date. The tribunal concluded that the second respondent had, on 21 March 2002, treated the claimant less favourably on the grounds of her sex. The immediate difficulty is the lack of findings of fact to underpin that conclusion. We have three additional concerns. Firstly, we do not see how, on the basis of their consideration that the second respondent's conduct was intrusive in the two respects stated, it was open to them to conclude that any treatment was afforded to the claimant by the second respondent at all. The description given by the tribunal does not involve the claimant. Secondly, the tribunal's conclusion appears to conflict with the entry on the Accident and Emergency sheet to which we have referred. In these circumstances, it was incumbent on them to explain how and why they considered that they could properly proceed on the basis that the second respondent had misrepresented that he was the claimant's husband but they do not begin to do so; rather, they appear to ignore that adminicle of evidence. Further, and also significantly, we cannot, in the judgment, find any basis on which it was open to the tribunal to conclude that any treatment afforded to the claimant that day was gender specific at all. There is no inkling of any comparator evidence, for instance, nor of the construction of a hypothetical comparator. Accordingly, we conclude that it was not open to the tribunal to find that a relevant act of discrimination occurred on 21 March 2002.

[85]

Separately, even if it were the case that a relevant act of discrimination occurred on 21 March, it would only have had the effect of keeping earlier discriminatory conduct alive for time bar purposes, if what happened on 21 March could properly be regarded as the end of an ongoing act. Without that, the requirements of s.76(6)(b) cannot be satisfied. It is not enough that the subsection be referred to and nothing more, which is what the tribunal have done here. In any such case it is incumbent on a tribunal to assess the evidence and to determine whether any proven discrimination was of such nature, frequency, character and quality as to be regarded as a continuum that was ongoing up until the final day complained of, in this case 21 March 2002. To make such an assessment, the tribunal needs to have evidence not only of the general nature of the allegations made but of their detail and timing. There is no indication of there having been sufficient such evidence here. The general character of the allegations made is recorded, with some details of what was alleged to have been said and done by the second respondent. However, it is also indicated that at first, the relationship was, according to the claimant, a good one and there is no indication of when it deteriorated or when and with what frequency the matters alleged occurred thereafter. Whilst there are references to copies of diary entries for April 2000, May 2001 and August 2001, that which is referred to was not sufficient to show a continuing act that ended on 21 March 2002. There were, as we have indicated, problems with some of the entry dates, and there is no sign of the tribunal having analysed it as such. There is, in particular, no indication in the summary of evidence of how long prior to 21 March 2002 was the last allegation of the generally improper conduct complained of or of the nature of the last such allegation or of any other detail that would enable a link to be deduced as between it and what happened on 21 March.

[86]

Further and significantly, the tribunal at paragraphs 646 and 655 appear to confine their view that the claimant's account is to be accepted to what she told them about what was said to her by the second respondent. We note, however, that some of her allegations were to the effect that he had not only said inappropriate things but that he had also touched her inappropriately. The tribunal make no attempt, when dealing with the time bar issue, to identify the timing of that alleged touching; yet that is something that, having apparently declined to accept the claimant's evidence on that matter, they required to do so as to exclude it from any consideration of the course of events for s.76(6)(b) purposes.

[87]

In all these circumstances, we are readily persuaded that the tribunal have erred in law in their decision on time bar. It was perverse of them to conclude that a discriminatory act had occurred on 21 March and, for the reasons above, also perverse of them to treat all the discrimination complained of as though it were part of a continuing act which came to a close on 21 March. Their decision is, we regret to say, evidently irrational. Even if the summaries of evidence were to be regarded as findings of fact, that would still be the case as support for their conclusion is not to be found in the evidence. Plainly, the conclusion they reached was wrong.

[88]

We are satisfied that this is not a case for a remit. The tribunal have provided lengthy summaries of the evidence and it did not contain sufficient material to support the claimant's case that her application was not time barred. There is no justification for giving her the chance to re-run her evidence in the hope that it might do so; in fairness to Mr Bathgate, he did not seem to suggest that that was his intention. Rather, his submissions were confined to seeking to persuade us that the tribunal's conclusion could stand which failing that the claimant should now be given a chance to present a case for an extension on "just and equitable" grounds. As regards that, we do not consider that a remit for that purpose can be justified either. The claimant had the opportunity to present a case for an extension at first instance, before the tribunal. The written submissions lodged on her behalf stated that she did not seek to do so. Justice between the parties would not be achieved by allowing her now to do that which she expressly refrained from doing at that earlier stage.

Taking account of written submissions, Dr McKinlay's issue, reasons for accepting the claimant's evidence, dealing with conflict in claimant's evidence re: cause of hearing loss, and Dr Rodger's evidence:

[89]

We turn to the group of matters raised under a separate perversity argument for the respondents. As regards the question of whether or not the tribunal took account of the respondents' submissions, we have some sympathy with the respondents' criticism. The picture presented is not a satisfactory one. Parties were in agreement that, at the final day's hearing (when the last oral evidence was heard), the second respondent was told that his written submissions were very long and simply asked if he had anything to add to them. He was entitled to proceed on the basis that the tribunal had read them, having called for them to be lodged in advance of that day's hearing. He was entitled to proceed on the basis that they would take them into account in their deliberations and determination of the case. There is, however, no clear indication in the tribunal's judgment that they did do so. To say, as they did (at paragraph 628) that they considered it unnecessary to refer to them and that, in essence the matter was one of credibility does, we agree, give the impression that if the written submissions were read and considered (and we do hope that they were since it would be a fundamental and serious failing if the tribunal did not do so), they were dismissed as being irrelevant to the credibility issues that arose. But they were not. It is clear from a reading of those submissions that the respondents were seeking to draw the tribunal's attention to a substantial number of points that, in their submission , indicated that the claimant should not be believed.

[90]

Acknowledging the nature and extent of parties' competing arguments and explaining its decision in the light of them can reasonably be expected to be found in the judgment of a court or tribunal. It is part of the duty to give reasons since, if it is not done, the judgment is unlikely to appear transparent; parties are liable to be able to say, with some force, that they do not know why they have won or lost – that they do not know whether the judge had adequate or inadequate reasons for the conclusion reached. Here, the reader is left wondering what the tribunal did with the respondents' arguments and how and why they rejected them so as to find in favour of the claimant. That is most unsatisfactory. We should add that we do not mean to indicate that tribunals are obliged slavishly to rehearse the whole of the parties' competing arguments in their judgments. There does, though, need to be something written which shows that the tribunal noted them, understood the substance of the points being made and took them into account in reaching their ultimate decision.

[91]

Turning to the reference to Dr McKinlay's evidence at paragraph 630, it is also unsatisfactory that the tribunal have failed to deal with the task that they there set themselves. They recognised the issue as an important one and their having thereafter apparently forgotten about it of itself calls the soundness of their subsequent conclusion into question.

[92]

Moving to the matter of the way in which the tribunal set about accepting the "substance" of the claimant's evidence regarding what the second respondent said to her, we again consider that there is force in the submissions made on behalf of the respondents. Firstly, the tribunal's comments to the effect that the allegations could, if fabricated, only be the product of an evil mind (paragraph 638), that was not a conclusion that a reasonable tribunal could have drawn. There was no evidence to indicate that that was the only possible explanation in this case. The reasons why a person fabricates an allegation can, clearly, vary widely. We do not see that the tribunal's conclusion was at all justified. Further, we cannot understand how the tribunal's observation to that effect was, in any event, anything to do with what they had to say about the second respondent's evidence which is what they were said they were dealing with at that stage.

[93]

Secondly, we consider that the respondents' submissions to the effect that the tribunal should not, in the circumstances, have been critical of their leading evidence for the purpose of seeking to discredit the claimant was well founded. As the tribunal themselves comment, credibility was a critical issue in this case. It is not at all surprising that the party against whom allegations were made sought to respond by leading evidence tending to show that the claimant was not credible and reliable. No reasonable tribunal would have been critical of such an approach yet it is evident from paragraph 642 that this tribunal was. Further, they were inconsistent in respect that they make no criticism of the claimant having led evidence from one witness (Neil Duffy) for the purpose of discrediting the second respondent. It is difficult for us to resist the impression that the tribunal's approach was not consistent with any recognition of where lay the onus of proof, namely on the claimant. That is, we have to say, an impression which was fortified by the approach taken by Mr Bathgate in submission under reference to paragraphs 642–3, to which we have referred above.

[94]

Thirdly, we agree with the respondents' criticisms of the tribunal's approach to the claimant's conflicting evidence about the cause of her hearing loss. The point is particularly acute because, in the event, the tribunal excused the claimant for having been untruthful in her evidence in circumstances where there was no independent source of evidential support for her account yet they refused to accept the evidence of the second respondent on the basis that there was no such support for what he said in circumstances where he had not been shown to be untruthful in any respect. In the circumstances, that approach strikes us as perverse. It plainly appears to defy logic and no explanation or reasoning is provided that sets that impression aside.

[95]

Finally, we are concerned to observe the way in which the tribunal have disposed of the evidence to the effect that the claimant was in the habit of lunching with the second respondent and giving him presents and cards, one of the latter having kisses marked on it. These were matters which the claimant accepted as having occurred. She gave no explanation as to her reasons for such conduct. Accordingly, the tribunal did not have before them any evidence to explain why, as a matter of fact, the claimant had conducted herself in that manner. Notwithstanding that, it is clear that they took Dr Rodger's evidence, elicited by the Chairman, that the victim of a bully could behave in such a way so as to appease the aggressor and used it as though it was evidence that that was what had been happening in the present case. Dr Rodger's hypothesis had no basis in the evidence though and it was not open to the tribunal to use it as if it did. It was perverse of them to do so.

[96]

We are, for these reasons, satisfied that the grounds of appeal founded on in this chapter are well founded.

Bias

[97]

We should set out what we have gleaned from the responses received from the Chairman and members and we will do so in relation to each of the four points focussed on in submissions.

[98]

Firstly, as regards what was said at the February hearing that the second respondent understood to be a view being expressed as to prospects of success of his case, the Chairman advises that it was suggested to the second respondent that both respondents may care to take legal advice and to be represented by a lawyer at the hearing on the merits – "The law relating to sex discrimination can be complex."

[99]

That seems unobjectionable and Mr McLaughlin wisely did not press the matter. However, we note from the response of one of the lay members that at the start of the merits hearing in September 2005, the second respondent was counselled about the seriousness of the allegations and the wisdom of employing a legal representative. The member continues:

"Having decided to ignore this advice, he should have been expecting the Chairman to direct the proceedings in accordance with legal requirements."

But that comment seems to be at odds with the Chairman's advice that the respondents' then solicitors withdrew from acting on 2 September. It seems unfair to accuse the second respondent of ignoring advice in those circumstances.

[100]

The second matter was that the Chairman was impatient and brusque, something which involved him stopping the second respondent from noting down witnesses' answers. One of the lay members describes the Chairman's manner as impatient and brusque, something which was, she said "normally" due to a desire to get to the point. The other lay member refers to the Chairman's firm manner and states that had the Chairman not intervened at times then the hearings would have lasted much longer without affecting the final decision (it is not clear how he considers himself able to say that without knowing what would have emerged in evidence without the interventions). The Chairman's principal response is to the question of evidence noting; he states that he cannot remember but that if it was taking an inordinate time, he may have advised that the second respondent should bring along an assistant to take notes . Regarding the allegation of impatience, he states that if the second respondent was unnecessarily repetitive in asking questions about the same point, he did not hesitate to stop him.

[101]

The third matter was the extent to which the Chairman took over examination and cross examination of witnesses, which included him preventing the second respondent from giving his own evidence in chief by reading out a prepared statement, the Chairman telling him that he would act as his "unpaid examiner in chief". One of the lay members states that the Chairman did act as an unpaid examiner in chief and also carried out cross examination. The Chairman explains that he did conduct cross examination for the second respondent as he considered his own style to be lacking; he therefore took it upon himself to establish the points in respect of which each witness could "assist the tribunal". He says that he explained to Mr Bathgate that he could object at any time to the questions which he was asking; he does not indicate that any similar option was afforded to the second respondent. He states that the second respondent was given the opportunity to follow up his questioning if he wished to do so. He makes no comment at all regarding the respondents' complaint that the second respondent was not allowed to read out his prepared statement and in the absence of his doing so, we consider it appropriate to proceed on the basis that that is what happened. Mr Bathgate did not suggest that it did not.

[102]

Finally, regarding the allegation that the Chairman repeatedly used the expression involving a scenario of wife beating, he appears, in essence to accept that he did so. Whilst he cannot, he says, be precise and has no specific recollection, he comments that the respondents may be referring to "an utterance which I frequently employ…..that a witness is not obliged to answer a question along the lines of 'Have you stopped beating your wife?'". Neither of the lay members comment on this allegation.

[103]

In approaching the allegation of bias, we bear in mind the line of authority to which we have already referred. The question is not whether there was actual bias but whether the fair minded and informed modern day observer would conclude that there was a real possibility of bias. Such an observer would, we consider, take account firstly, of it being incumbent on any court or tribunal to allow for the fact that a party litigant will not have the skills that can reasonably be expected of a qualified lawyer, nor may he have the assistance in court that such a lawyer will normally be afforded at an evidential hearing. That may involve, for instance, accepting that matters will progress more slowly if a party litigant has no assistance and wishes to take a note of the evidence as he proceeds with his questioning of witnesses. It will almost inevitably involve exercising greater patience than is called for where a party is legally represented, as the litigant is liable, through lack of knowledge and understanding, to have more difficulty with concepts such as relevancy, something which is particularly difficult in the tribunal context where the notice that a party requires to give of his case in advance is much less detailed than that which is expected in the civil courts. The court or tribunal requires, in particular, to be aware of the risk that undue brusqueness or impatience may inhibit a party litigant from advancing his case in a way which a lawyer would not be so inhibited.

[104]

Secondly, such an observer would also take account of the need, if there is to be a fair trial, for a party to be allowed to state, in evidence, what his case is and to be allowed, within reasonable relevance bounds, to question witnesses in refutation of his opponent's case and in support of his own.

[105]

Thirdly, such an observer would, as at the present day, be aware of the need for courts and tribunals to afford sensitive handling to cases where discrimination is alleged, particularly in a case where the allegation is of sex discrimination of a sort that is said to have involved improper conduct by a man towards a woman. That may require a careful choice of language at times.