United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MOHAMMED ANSAR (The Appellant in Person)
For the Respondents	MR JONATHAN GIDNEY (of Counsel) Instructed by: Messrs Pinsents Masons Solicitors Dashwood House 69 Old Broad Street London EC2M 1NR


 


SUMMARY

Practice & Procedure: Bias, Misconduct and Procedural Irregularity

This case alleges bias at a PHR conducted by a Chairman in a second claim where allegations of bias are outstanding from his handling of the first claim. Vacated and bolted to a now-sifted FH in the first claim. Breeze Benton, Dobbs v Triodos Bank, Deman v The AUT and Hackney v Sagnia on recusal and bias to be considered. The legal principles for the hearing agreed and guidance given.


 


HIS HONOUR JUDGE McMULLEN QC

1. This case alleges bias at a PHR conducted by a Chairman in a second claim where allegations of bias are outstanding from his handling of the first claim. We have decided to take the unusual step of aborting today's proceedings, after hearing some evidence on oath. The reason we have done this, after canvassing various options with the parties, is that it is accepted to be a legal principle applicable in this case that we should make findings of fact as to how a fair minded observer of all the proceedings before an Employment Tribunal Chairman Mr Kolanko, fixed with a sufficient amount of knowledge, would have viewed his decision not to recuse himself.
2. It has been put by Mr Ansar, who represents himself, that some understanding of the first proceedings is necessary. We agree with that. If for example (and certainly not in this case) an objection were made to a Chairman who previously behaved outrageous, we would need to know whether there was any substance in that,
3. In the light of those submissions, I have looked at the file in the first "in time" appeal. The papers are substantial, but there has been delay caused by the late presentation of the Notice of Appeal and by a stay ordered by other EAT judges in order that the PD paragraph 11 procedure on bias can be complied with. Certain parts of the Notice of Appeal have been sifted out under Rule 3. A successful appeal on the first proceedings would obviously be very relevant to consideration of the second appeal. For example, if the allegations of bias were upheld, it would be unlikely that the Appeal Tribunal would consider it was fair for that same Chairman to have conducted a PHR. If the bias appeal fails, then it remains open as to whether or not certain matters in that hearing would affect the decision not to recuse himself.
4. Similarly, submissions have been made that there is linkage between certain findings in the first proceedings and the matters in the second. We accept that there might be substance in that and thus it is important for us to know more about the first proceedings.
5. At the moment, this is ready to be sifted by a judge. I have decided that this case will go to a full hearing. I do so on the basis of a very brief reading of the material which, in this case, is voluminous, the judgment itself extending to 65 pages and a very considerable exchange of evidence relating to the bias allegations. Generally speaking, on a sift when a case is to go to a full hearing, it carries with it the imprimatur that there are reasonable prospects of success. I make it clear that I am taking a practical approach to resolving the difficult circumstances which face us today and I am ordering a full hearing for practical reasons and not because I accept that every point now available stands a reasonable prospect of success.
6. I do not consider that it would be expeditious to conduct a Rule 3 exercise because I have no doubt, having heard the way in which Mr Ansar presents his case, that he would wish to take advantage of Rule 3(10) and the case would be more protracted. I have in mind the overriding objective to see that justice is done expeditiously and economically, and the interests of the Respondents in hoping not to have to respond to a weak case at a full hearing. The cases here are quite out of sequence. The first proceedings should have been the subject of a judgment so that then there could be consideration of the second or, if not a judgment, then at least consideration by the same EAT at the same time.
7. Again, for practical purposes, it is not expedient to continue this constitution of the EAT. We bear in mind that these issues are now quite old and need to be resolved and that there is yet further litigation for 15 days booked for May 2006 on a self-contained different issue. At least it appeared to be self-contained, but Mr Ansar has today suggested that there may be some linkage.
8. In the light of all that, the whole of today will not be wasted because we will direct that a note be prepared by the parties of the live evidence here of Mr Sultan and agreed, each of them having a note-taker; and if it cannot be agreed, then I will decide it on the basis of my notes. It will also be noted that Mr Ansar accepts the legal principles set out by Mr Gidney so that there is no need for further argument on them. The law to be applied in this case is as follows.
9. The test to be applied as stated by Lord Hope in Porter v Magill [2001] UKHL 67, at para 103 and recited by Pill LJ in Lodwick v London Borough of Southwark [2004] EWCA Civ 306 CA at para 18 in determining bias 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.
10. The EAT should test the Employment Tribunal's decision as to recusal and also to consider the proceedings before the Tribunal as a whole and decide whether a perception of bias had arisen: Pill LJ in Lodwick above, at para 18.
11. If an objection of bias is then made, it will be the duty of the Chairman to consider the objection and exercise his judgment upon it. He would be as wrong to yield to a tenuous or frivolous objection as he would to ignore an objection of substance Locabail (UK) Ltd v Bayfield Properties Ltd [2000] IRLR 96 at para 21.
12. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour: Re JRL ex parte CJL [1986] 161 CLR 342 at 352, per Mason J, High Court of Australia recited in Locabail above at para 22.
13. It is the duty of a judicial officer to hear and determine the cases allocated to him or her by their head of jurisdiction. Subject to certain limited exceptions, a judge should not accede to an unfounded disqualification application: Clenae Pty Ltd v Australia & New Zealand Banking Group Ltd [1999] VSCA 35 recited in Locabail above at para 24.
14. The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not without something more found a sustainable objection: Locabail above at para 25.
15. Parties cannot assume or expect that findings adverse to a party in one case entitle that party to a different judge or tribunal in a later case. Something more must be shown: Pill LJ in Lodwick above, at para 21, recited by Cox J in Breeze Benton Solicitors (A Partnership) v Weddell UKEAT/0873/03/SM at para 41.
16. Courts and tribunals need to have broad backs, especially in a time when some litigants and their representatives are well aware that to provoke actual or ostensible bias against themselves can achieve what an application for adjournment (or stay) cannot: Sedley LJ in Bennett v Southwark London Borough Council [2002] EWCA Civ 223, para 19.
17. There should be no underestimation of the value, both in the formal English judicial system as well as in the more informal Employment Tribunal hearings, of the dialogue which frequently takes place between the judge or Tribunal and a party or representative. No doubt should be cast on the right of the Tribunal, as master of its own procedure, to seek to control prolixity and irrelevancies: Peter Gibson J in Peter Simpler & Co Ltd v Cooke [1986] IRLR 19 EAT at para 17.
18. In any case where there is real ground for doubt, that doubt should be resolved in favour of recusal: Locabail above at para 25.
19. Whilst recognising that each case must be carefully considered on its own facts, a real danger of bias might well be thought to arise (Locabail above at para 25) if:

a. there were personal friendship or animosity between the judge and any member of the public involved in the case; or

b. the judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case; or,

c. in a case where the credibility of any individual were an issue to be decided by the judge, the judged had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person's evidence with an open mind on any later occasion; or,

d. on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on their ability to try the issue with an objective judicial mind; or,

e. for any other reason, there were real grounds for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues.

20. Three statements of principle by the EAT must always be borne in mind by those seeking to overturn an Employment Tribunal on the ground of bias or apparent bias. First, the Practice Direction 2004 sent to all users provides

11.6.2 The EAT recognises that Chairmen and Employment Tribunals are themselves obliged to observe the overriding objective and are given wide powers and duties of case management (see Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 (SI No 1861), so appeals in respect of their conduct of Employment Tribunals, which is in exercise of those powers and duties, are the less likely to succeed.

11.6.3 Unsuccessful pursuit of an allegation of bias or improper conduct, particularly in respect of case management decisions, may put the party raising it at risk of an order for costs.

21. Secondly, regard should be had to the statement by Rimer J for the EAT in Hackney v Sagnia UKEAT/0600/03 & UKEAT/0135/04 at para 63:

Allegations of bias against employment tribunals are raised as grounds of appeal to this tribunal with what appears to be increasing frequency. They are most commonly made by litigants in person, often with little or nothing by way of tangible support for the complaint, which on analysis commonly amounts to no more than the deployment of the fallacious proposition that: (i) I ought to have won; (ii) I lost; (iii) therefore the tribunal was biased. Our experience is that bias allegations based on complaints that the employment tribunal approached the appellant's case with a closed mind, having already pre-determined the matter against the appellant, have a low success rate. This is for the obvious reason that a tribunal cannot form a concluded view on the issues until it has heard all the evidence and the argument and so it will be a rare case in which a tribunal will at any earlier stage make any utterances which either side can rationally regard as the outward expression of some pre-judgment of the case.

22. Thirdly, the observations of Rimer J in Shodeke v Hill UKEAT/0394/00 as to the difficulty for an Appellant seeking to resolve disputes of fact on paper will also inform the approach to the proof of allegations of bias before the EAT.
23. These will therefore go forward as the legal principles to be applied in this case, subject to any further argument which either party may wish to raise on the authorities which we provided to them this morning: Dobbs v Triodos Bank [2005] EWCA Civ 468, Deman v The AUT UKEATPA/0666/06.
24. Standard directions; Respondents' answer within 14 days. Category A and any party will notify the others if they wish to cross-examine any witness viz the Claimant and Mr Doyle on the evidence lodged and if so, the paragraphs upon which such cross-examination is to occur.