United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR DANIEL STILITZ (of Counsel) Instructed by: Messrs Russell, Jones and Walker Solicitors Swinton House 324 Gray's Inn Road WC1X 8DH
For the Respondent	MR OLIVER SEGAL (of Counsel) Instructed by: Messrs Steen & Co Employment Solicitors Magdalen Court, The Oxford Science Park Robert Robinson Avenue Oxford OX4 4GA


 


SUMMARY

PRACTICE AND PROCEDURE

Bias, misconduct and procedural irregularity

Appellant complained of the conduct of a lay member at the Tribunal by way of her body language supportive of the Respondent, particularly during the cross-examination of the Respondent's Chairman. On consideration of the authorities and the evidence no case of pre-judgment or closed mind made out and consequently no real possibility of the Tribunal being biased.


 


THE HONOURABLE MR JUSTICE BURTON

1. This was the hearing of an appeal against the decision of an Employment Tribunal at Reading, after a hearing on 9 to 12 and 15 December 2008, by Reasons sent to the parties on 9 January 2009: the Tribunal consisted of Employment Judge Thacker and two lay members, Mr Mittal and Mrs Watts-Davies. The Appellant's complaints of unfair dismissal and unlawful detriment were dismissed, as was the Respondent's application for costs. The Appellant had not completed the 12 months' employment necessary for protection against unfair dismissal: her claim, for which such qualifying period is not necessary, was that the dismissal was unfair because the only or principal reason for her dismissal was the fact that she had made protected ('whistleblowing') disclosures, qualifying within the meaning of Part 4 of the Employment Rights Act 1996: she also alleged that she had suffered other detriments as a result of the alleged protected disclosures. It was those claims which were dismissed.
2. The issues consequently were whether there were such protected disclosures, and, primarily, whether the decision to dismiss her, taken by Mr Loosemore, the Chairman of the Respondent, was only or principally because she had made such disclosures: or whether it was, as Mr Loosemore asserted and (subject to an allegation of fabrication which the Appellant made in the course of the hearing) had recorded in documents, that the Respondent had lost confidence in the Appellant to provide the requisite level of support to the Chief Executive Officer, with whom her relationship had deteriorated, and to the Board. The Tribunal's decision is clear and fully reasoned, based upon detailed findings of fact. At paragraph 46 of the judgment it concludes that the passing of information by the Appellant, in relation to the Respondent's Italian operation, did amount to a qualifying disclosure, but that (paragraphs 54 and 57) Mr Loosemore genuinely had a concern as to the Appellant's judgment and competence, that (paragraphs 62 to 64) the documents said by the Appellant to have been fabricated by Mr Loosemore were not so fabricated, and that (paragraph 72) the principal reason for the Appellant's dismissal was not the making by her of qualifying protected disclosures, and (paragraph 79) "the question of protected disclosures did not operate on the minds of those alleged to have carried out the dismissal or to have subjected [the Appellant] to detriments."
3. The Appellant was represented by Mr McCarthy of Counsel at the Tribunal (but by Mr Daniel Stilitz before us). She gave evidence herself and called two witnesses, Mr Shinya and Mr Parsotam. The Respondent, for whom Mr Oliver Segal appeared both before the Tribunal and before us, called only Mr Loosemore, although a number of other witnesses had been present, ready to give evidence, but were not in the event called, because of the view taken by those advising the Respondent that, in the light of the way matters had ensued, particularly the cross-examination of the Appellant, there was no need to call them. Day 1 (Tuesday 9 December) was spent by the Tribunal pre-reading, so that when the case started on Day 2 they were fully informed about the facts and the respective cases of each party. Day 2 was taken up with the evidence of the Appellant in examination in chief and cross-examination, which continued until lunchtime on Day 3. Because the Appellant's two witnesses were not then available, by agreement Mr Loosemore was called to give evidence at that stage, and after giving evidence in chief for about three quarters of an hour, his cross-examination began at about 2.30pm and his evidence continued into Day 4, when the Appellant's two witnesses followed him into the witness box. Day 5 was taken up in submissions.
4. The Appellant's Notice of Appeal is based only upon one ground, namely of apparent bias by one of the lay members, Mrs Watts-Davies. The Notice of Appeal sets out matters relied upon in respect of Day 2 by reference to the affidavit of the Appellant, summarised in the Appellant's skeleton as follows, namely that Mrs Watts-Davies was (a) smiling openly at the Respondent's barrister (b) nodding at the Respondent's questions (c) muttering words of agreement or disagreement when the Appellant gave her answers (d) leaning back in her chair and looking disapprovingly down her glasses at the Appellant and (e) adopting an aggressive tone when questioning the Appellant.
5. No matters are raised by way of complaint in respect of the morning of Day 3. On the afternoon of Day 3, Mr Daniels, a partner in the Appellant's solicitors, attended instead of Ms Murray, who had attended on Day 2, and he took notes with specific reference to watching Mrs Watts-Davies's alleged behaviour, and the Notice of Appeal recites 12 subparagraphs by reference to his affidavit relating to alleged conduct by Mrs Watts-Davies during the cross-examination of Mr Loosemore by Mr McCarthy, between approximately 2.30 and 3 o'clock. These are summarised in the Appellant's skeleton as (a) smiling at the Respondent's Counsel (b) laughing/smirking at questions put by the Appellant's Counsel Mr McCarthy to Mr Loosemore (c) raising her eyebrows at a question put by Mr McCarthy (d) making huffing and sighing noises when questions were put to Mr Loosemore (e) nodding her head in agreement with Mr Loosemore's answers (f) shaking her head in disapproval at questions being asked by Mr McCarthy (g) wringing her hands in exasperation and (h) crossing her arms and sitting back in her chair. Shortly after 3 pm there was a brief break in proceedings, and, when the Employment Judge and the lay members returned into Court, Mr McCarthy raised a complaint to him about Mrs Watts-Davies. The Employment Judge recorded what Mr McCarthy said as follows:

"Conduct of member on right hand side. Have been 15 instances [in] last half hour of what could lead to appearance of bias. Comments laughing at certain points. Could be construed as making mind up. Reserving our position in relation to concerns so far. Care to be taken in future."

6. The Tribunal adjourned for half an hour and upon returning the Employment Judge read out the following note:

"Mrs Watts-Davies apologises if she has given the impression of having made up her mind. The parties can be assured that this is not the case, and I have reiterated the importance of ensuring that a decision is only made having heard all the evidence and submissions, this being something [of which] both members, who are very experienced, are well aware. Mrs Watts-Davies has been the Chairman of a FTSE 250 equivalent company, so [is] very knowledgeable of [the] role and function of [a] Chairman and Board of Directors. Of course, as Mr McCarthy says, we end up with provisional views, but the important word there is "provisional"."

7. The hearing then proceeded, and there is no complaint as to what occurred in the balance of Day 3.
8. As to Day 4, there is no reliance on any particular matter in the Notice of Appeal. As to the evidence, no complaint is made in relation to the completion of Mr Loosemore's cross-examination. Ms Murray, who was back in place of Mr Daniels, and the Appellant record that Mrs Watts-Davies asked questions of the Appellant's two witnesses which are said to have been challenging or dismissive.
9. In relation to Day 5, the day of submissions, one final matter is complained of. It is not in dispute that there was a number of occasions during the hearing when documents were produced by the Appellant which had not been previously disclosed, and which, it was alleged by the Respondent, ought to have been disclosed prior to the hearing. It seems that, although the evidence had closed and submissions had started, Mr McCarthy proffered another such previously undisclosed document on his client's behalf to the Tribunal. Ms Murray's note of what happened, as explained in paragraph 23 of her affidavit is as follows:

"When our Counsel tried to produce this further disclosure, Mrs Watts-Davies said that it was "ridiculous. It's just too late." Our Counsel said that it was not ridiculous."

10. Counsel collected together, for the purposes of the appeal, a veritable stash of decisions on the issue of apparent bias, in which decisions of the Employment Appeal Tribunal or the Court of Appeal relating to alleged apparent bias in employment tribunals formed a prominent part. There is no doubt that, although there are perhaps less bias appeals now than there used to be, appeals on the basis of bias have formed a staple part of the appellate diet of the Employment Appeal Tribunal: a practice has been developed, both by reference to Facey v Midas Retail Security [2000] IRLR 812 and successive Employment Appeal Tribunal Practice Directions, and self-directional warnings have been frequently given such as that by Rimer J in London Borough of Hackney v Sagnia [UKEAT0600/03, 0135/04 6 October 2005] that such complaints of bias can often amount "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" (paragraph 63). It has also been recognised that there is the very real risk, as pointed out by the Employment Appeal Tribunal in its Practice Direction (paragraph 11), that what is, in fact, firm case management by a tribunal will be seen or characterised by a party as unfairness. But nevertheless, regrettably, there are cases in which apparent bias by an employment tribunal has been found, e.g. in Peter Simper & Co Ltd v Cooke [1986] IRLR 19, and the Employment Appeal Tribunal, with guidance from the cases to which Counsel had drawn attention, have developed a jurisprudence, and an ability to approach and deal with such issues.

The Law

11. A number of principles, or at any rate conclusions, can be drawn from that jurisprudence.
12. The starting point is the helpful definition of apparent bias articulated in the seminal passage of the speech of Lord Hope in Porter v Magill [2002] 2 AC 357 at paragraph 103, namely "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". Peter Gibson J in Peter Simper applied that to an employment tribunal, emphasising at paragraph 10 that the Tribunal must not give the appearance of bias, such that "where there is an allegation of bias based upon the conduct of one or more members of a tribunal at a hearing, the test is, in our view, an objective one: would the reasonable observer present at the hearing, not being a party, or associated with a party, to the proceedings, but knowing the issues, reasonably gain the impression of bias." Such informed observer must be "fair minded … not unduly sensitive or suspicious" (paragraphs 2 – 3 of the speech of Lord Hope in Helow v Secretary of State for the Home Department and Another [2008] 1 WLR 2416 (HL)).
13. Robust language by a tribunal is not of itself objectionable nor of itself founds a case of bias. In the judgment of the Court of Appeal (Lord Bingham CJ, Lord Woolf MR and Sir Richard Scott V-C) in Locabail (UK) Ltd v Bayfield Properties Ltd [2000] IRLR 96, the Court stated at paragraph 25 that "the mere fact that a judge, earlier in the same case or in a previous case, had commented adversely upon a party or a witness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection". There are examples of cases where intemperate language by an employment tribunal chairman (Kennedy v Commissioner of Police of the Metropolis [19090] TLR 709), the asking by a tribunal member of aggressive questions (Docherty v Strathkelvin D.C. [1994] SLT 1064) and a vituperative exchange between a tribunal chairman and a party's Counsel (Egerton v Rentokill Initial Management Services Ltd EAT/141/98 22 January 1999) have not been adjudged by appellate tribunals to found a case of bias.
14. Bias, or the appearance of bias, save in the exceptional case where one incident alone can establish a closed mind, ordinarily falls to be examined by reference to a series of incidents over a period: in Ansar v Lloyds TSB plc & Others (No 1) UKEAT/0152/06 14 July 2006, unusually, and hopefully very exceptionally (see paragraph 57 of my judgment in that case), 3½ days of judicial time was spent at the Employment Appeal Tribunal in considering events at the tribunal, which were not found to constitute bias by the employment tribunal. But in cases such as this, what is being examined is whether there was bias, in the sense of a closed mind, by reference to pre-judgment, of which prejudice is simply the Latinate equivalent.
15. It is well understood in appellate courts that trial judges are required to make a decision on the facts before them, such that in many cases, perhaps all but the most difficult, they will gradually, as they hear the evidence and submissions, close their minds, in the sense of arrive towards a decision. What is objectionable is a closed mind early, or too early, in the case. In Peter Simper, the Employment Appeal Tribunal was satisfied that the tribunal chairman had a closed mind before hearing any of the employer's case (paragraphs 15 to 17 of the judgment of Peter Gibson J). A different conclusion was reached by the Court of Appeal, as appears from the judgment of the same judge, now Peter Gibson LJ, in London Borough of Southwark v Jiminez, overturning the contrary conclusion of the EAT, namely that (paragraph 39) "this is not a case like the Simper case where concluded views were being expressed in unqualified form against the employer even before his case was opened and its evidence heard. On the contrary, in this case the bulk of the evidence had been heard and the tribunal would have been well aware of the impression made on them by that evidence." At paragraph 38, Peter Gibson LJ had "some difficulty in understanding why a strongly expressed view cannot be a provisional view ... of course the more trenchant the view, the more the attachment of the label 'preliminary' may need scrutiny to see whether the view was truly preliminary and not a concluded view."
16. The situation here is of course not, as Mr Stilitz has emphasised, a question of the oral expression of a preliminary, or a concluded, view by Mrs Watts-Davies, but of a case being asserted by the Appellant that a conclusion as to an inappropriately closed mind can and should be drawn from what has been called Mrs Watts-Davies's 'body language'. This he says is more difficult to deal with at the time than the expression of hostile views, because those can be grappled with by Counsel or advocate or even by a party, and it is more difficult, though not impossible, to address someone who is exhibiting by body language approbation of one side's case or disapprobation of the other's. Nevertheless the issue remains the same, namely whether what is being exhibited demonstrates, or would be considered by an objective, fair-minded and informed observer, to demonstrate, an inappropriately closed mind. In the Court of Appeal of New Zealand in Siemer v Stiassny and Hodgson [2007] NZ CA 117 Young P stated, bearing in mind, and making express reference (in paragraph 41 of the judgment) to Marsh, to which I have referred in paragraph 13 above), that:

"38. Complaints of bias against a judge are not common but are not unknown either. It sometimes happens that an unsuccessful litigant will attribute the outcome of the case to judicial bias rather than the view the judge took of the merits. One of the problems with such a complaint is that there is usually no obvious reason why a judge with no personal or financial link to the parties or outcome of the case should be biased. Given this, the most likely explanation for impugned judicial conduct is usually that it was a reaction to unmeritorious arguments or evidence." (See also paragraphs 39 and 41.)

17. The case of Marsh, in which Peter Gibson LJ gave the second of his four reported judgments in this field (Peter Simper, Marsh, Jimenez and Stansbury v Data Pulse plc [2004] IRLR 466) is, on its facts, the closest to this case. There were substantial allegations against the tribunal chairman of the kind of body language alleged here - it is recorded in paragraph 18 that the chairman categorically denied "snorting, tutting, rolling my eyes, shaking my head or otherwise as suggested". The Employment Appeal Tribunal in its judgment, which was upheld by the Court of Appeal, rejected much of the description of the tribunal chairman's alleged conduct, but concluded (paragraph 28) that the chairman's questioning of witnesses was pointed, that the tribunal showed a greater warmth towards the evidence of Mr Marsh and that the chairman described a point taken before the tribunal as "nonsense": the EAT, by reference to "body language … concluded that the Chairman reacted in a way which might be capable of showing that she felt less enthusiastic of the case of BLP than she did of the case for Mr Marsh".
18. Very much as in the subsequent New Zealand case which relied upon his judgment in Marsh, Peter Gibson LJ recorded, in paragraph 39 of that judgment, that "it is inevitable that a tribunal will react to what is paraded before it. The worse the case is that is put before it ... the members of the tribunal would not be human if they did not form a view as to the strength of the case being argued". The issue then is whether, as was succinctly summarised by Counsel before me, Mrs Watts-Davies had what Mr Stilitz called an irrational animus or what Mr Segal called (by virtue of what he contended was the strength of his client's case) predictable acumen.
19. Lastly, so far as the jurisprudence is concerned, it was not in issue between the parties that if one of the three tribunal members, i.e. Mrs Watts-Davies, was tainted by apparent bias, then the decision of the tribunal cannot be saved by reference to the fact that there is no similar suggestion as against the other two members (Stansbury at 26, and Lodwick v Southwark LBC [2004] ICR 884).

The Evidence

20. It was not suggested that there should be any oral evidence in this case, as there was for example in Anwar No 1. We had the benefit of affidavits from, on the one hand, the Appellant herself, Ms Murray (present on Days 2, 4 and 5), Mr Daniels, present on the afternoon of Day 3, as described above), and a paralegal from the Appellant's solicitors, Ms Iwona Iuszczak, who took notes on all four days, and, on the other hand, affidavits from Mr Steen, the Respondent's solicitor, and Mr Paul Rodgers the Group HR director of the Respondent, who were present throughout the four days. It is always a difficult position for a respondent, seeking to uphold a judgment of the employment tribunal in its favour, where no case is sought to be made against that respondent, such as would normally be the case where the appeal is brought by reference to the merits of the tribunal's decision. Such deponents do their best to give their account in response to the allegations made by the appellant, and in particular Mr Steen, while protecting the interests of his clients, is obliged to act as an officer of the Court and of course give truthful evidence on affidavit. Neither Mr Rodgers nor Mr Steen deny that Mrs Watts-Davies's actions during Mr Loosemore's evidence (on the afternoon of Day 3, as put under a microscope by the evidence of Mr Daniels) were (paragraph 6 of Mr Steen's affidavit) "more noticeable than I would say is normal. All members of tribunals tend to reveal their views of the case as this is just human nature." Mr Steen opines, at paragraph 5, as follows:

"This case was not normal, in that the Tribunal scheduled a full day for reading in the absence of the parties. As such, the Tribunal had the unusual viewpoint of having read all the statements, pleadings and some of the documents before hearing any evidence ... in my view this is simply a case of a Tribunal member having done a day's preparatory reading and forming a provisional view. As the evidence developed, it became clear that the appellant really didn't have a case at all and I accept that at times Mrs Watts-Davies didn't take enormous pains to conceal her view of some of the evidence. However the Appellant presents a caricature picture of Mrs Watts-Davies that I simply don't recognise. It may have been the case that Mrs Watts-Davies found the appellant's evidence to be less than cogent, but in my view that would have been an opinion that anyone could have reached. In my experience one nearly always gets a view on what the tribunal is thinking and one does not expect the members of tribunal to remain poker-faced at all times."

21. So far as concerns the cross-examination of Mr Loosemore, the subject matter of Mr Daniels' evidence, which I have summarised above, Mr Steen says that he thought that the cross-examination by Counsel was "completely inept" (paragraph 8), because it appeared that he had no idea whatsoever of the role of the chairman of a listed company, that Mr Loosemore gave persuasive answers, in particular making clear that what was being suggested to Mr Loosemore was inconsistent with the role of a chairman of a company, and that he, Mr Steen, was receiving the impression from Mrs Watts-Davies that she was agreeing with Mr Loosemore's answers: (paragraph 11) "It later transpired that she had been a Chairman of a FTSE 250 company herself and therefore would have understood Mr Loosemore's answers and the inappropriateness of the questions perhaps better than Mr McCarthy. I understand that it is the role of the wing members to bring their industrial and employment knowledge to the Tribunal. … I have been in many tribunals where a wing member has indicated that by virtue of his or her industrial knowledge he or she agrees with a given answer."
22. We have also had, pursuant to the ordinary directions given pursuant to the Employment Appeal Tribunal Practice Direction, comments from the Employment Judge and the two lay members. The Employment Judge does not agree with a number of the comments made on the part of the Appellant. In particular he confirms that he did not notice any inappropriate conduct on Mrs Watts-Davies's part during Day 2, nor during Day 4, whether as suggested by the Appellant or at all. So far as the afternoon of Day 3 is concerned, he records as follows, in relation to the period of Mr Loosemore's cross-examination dealt with by Mr Daniels in his affidavit:

"It is correct to say that Mrs Watts-Davies made some audible sounds, which may have indicated unhappiness with some of the Mr McCarthy's questions. For obvious reasons, I am unable to make any comment about her facial expressions [i.e. because he was sitting alongside her]. However my recollection is that her impatience related only to those questions concerning the role of company Chairmen. I do not think that it occurred throughout the whole period of 30 minutes referred to by Mr Daniels in these paragraphs of his affidavit. Furthermore, the parts that I heard occurred nearer the time that we took a break at about 3pm, since I recall raising the matter in private with Mrs Watts-Davies. This was done at my own instigation during the break and prior to the issue being raised by Mr McCarthy. If I had noticed any such behaviour at an earlier stage, then I would have stepped in to stop it."

23. He then records the exchange with Mr McCarthy and the note he read out, as set out by me in paragraph 6 above, recording that such apology was given with Mrs Watts-Davies's full concurrence. I shall deal separately with the evidence about the exchange during Mr McCarthy's closing submissions, to which I have referred in paragraph 9 above. Mr Mittal has given short comments to the effect that he was not observing Mrs Watts-Davies's actions, and recalls that she was listening to the matter attentively and raised pertinent questions, and that nothing during the decision meeting (on Day 6) caused him to believe that Mrs Watts-Davies had a preconceived or biased opinion.
24. Mrs Watts-Davies's comments amounted to a complete rebuttal of the allegations in relation to smirking, smiling, huffing and enthusiastically nodding her head. She records that she did pass a note to the judge on the afternoon of Day 3 asking who the person was (Mr Daniels) who had come in to the hearing lately and was, as she described, "targeting her". Mrs Watts-Davies did not deal with what was said by the Employment Judge in his comments, because, as is clear from the covering letters from the Employment Tribunal, he prepared his notes after receipt of the comments from the lay members. Insofar as Mr Stilitz suggested at one stage that Mrs Watts-Davies ought to have given a fuller narrative of what occurred, that was, as Mr Segal pointed out, and as we accept, not a fair criticism where the direction of the Employment Appeal Tribunal was for her to comment upon the Appellant's affidavits, which she did very thoroughly, almost paragraph by paragraph.
25. It should be recorded finally, and is relied upon by the Respondent, that the Respondent made an application for costs, inter alia by reference to the suggestions that (paragraph 83 of the judgment) it was unreasonable to have alleged that Mr Loosemore's documents were manufactured only in the course of cross-examination of him, without any advance notice, and (paragraph 92) by reference to what the Respondent alleged to be the unreasonableness of the cross-examination of Mr Loosemore. But the Tribunal refused that application.
26. Notwithstanding the absence of oral evidence or cross-examination before us, we have to make up our minds as to what we conclude, on the balance of probabilities, to have occurred, so as to be able to decide whether a reasonable informed and fair-minded observer would have concluded that there was a real possibility that Mrs Watts-Davies was biased, in the sense of having a closed mind at a stage before she had heard all the evidence and the submissions.
27. The first matter we have borne in mind is that, in relation to Mr Daniels' evidence as to the afternoon of Day 3, it is clear from the evidence of Ms Murray that she was never going to attend on Day 3, and that it was always planned that Mr Daniels would attend, although, it seems, not until the afternoon session; but that Miss Murray had phoned him as he was on his way to the Reading Tribunal from London and reported to him what she described as "Iwona's concerns" (i.e. those of Ms Juszczak) about Mrs Watts-Davies's conduct. By the time he arrived he was therefore intending to look out for any signs of questionable conduct by Mrs Watts-Davies. He took notes, and recorded the incidents, which were summarised on the Appellants behalf as set out in paragraph 5 above. He commented in his affidavit that he had "never seen anything quite like this in an employment tribunal in terms of open disregard for the giving of a fair hearing and appearing to give a fair hearing" (paragraph 38). Something very similar was said by the witness in Marsh as to the conduct of the tribunal chairman there criticised (see paragraph 10.8 of that judgment). We take that into account, but must do so not only alongside the other evidence about that period of half an hour on the afternoon of Day 3, but also bearing in mind that we are considering, as we must in the light of the authorities, an objective approach and not the subjective view of the witnesses, however experienced they are (see in particular the Opinion of the Inner House of the Court of Session in Docherty at 1066F).
28. The significant fact is that the time when Mr Daniels was present was the period of the cross-examination of Mr Loosemore, when Mr McCarthy was putting to him what he was suggesting Mr Loosemore should have done as chairman of the Respondent company. I have already indicated that the Respondent's witnesses, in their evidence, do not shy away from the fact that they agree that Mrs Watts-Davies was visibly showing her feelings at this stage. Mr Rodgers describes the position as follows:

"4. Questions from Mr McCarthy were focused around an expectation that Mr Loosemore was acting [in], and would have knowledge about, the day to day management activities of the Micro Focus Company, which I would not expect any FTSE chairman to do or know about.

5. Mr McCarthy asked approximately 7 or 8 questions in succession of this nature and towards the end of his questioning, I can recall Mr Loosemore clearly stating that it was obvious that Mr McCarthy didn't know or was obviously unaware of the role and duties of a chairperson. I did notice Mrs Watts-Davies nod, as if in agreement with this statement from Mr Loosemore."

29. Before the afternoon of Day 3, we are satisfied that nothing that is said to have occurred previously (Day 2 or Day 3 a.m.) can be a matter of material criticism or can be said to evidence a closed mind by Mrs Watts-Davies. The Appellant was in the witness box during Day 2, and indeed for the morning of Day 3, and is likely to have been distressed and concerned, and far from objective. Ms Juszczak, the paralegal taking notes of the hearing at that stage, considered that Mrs Watts-Davies was clearly hostile to the Appellant, but she took no notes of any behaviour by Mrs Watts-Davies. Ms Murray, the solicitor, although she subsequently passed on to Mr Daniels over the telephone ""Iwona's concerns", had none of her own: "it... seems possible that Mrs Watts-Davies could have negative feelings towards our client, but it was still early on in the hearing and, at that stage, I had not noticed any evidence of this myself" (paragraph 9 of her affidavit). Nothing is recorded or put in evidence at all as to the alleged behaviour of Mrs Watts-Davies during the morning of Day 3.
30. It is, as has been said, the afternoon of Day 3, in respect of the half an hour of the cross-examination by Mr McCarthy of Mr Loosemore, upon which the Appellant's case must primarily depend. We note the following.
31. First, the notes and evidence of Mr Daniels and of Ms Juszczak and of the Appellant are not identical: in particular Ms Juszczak, who was specifically asked by Mr Daniels (paragraph 9 of her affidavit) to watch Mrs Watts-Davies closely and take notes in respective of her behaviour, did not note all of the matters recorded by Mr Daniels. However the general thrust of the three of them certainly coincides in establishing a case that Mrs Watts-Davies was expressing, through her body language and gestures, her impatience with the questions being put by Mr McCarthy, and her approval of, and agreement with, the answers being given by Mr Loosemore to them.
32. At one stage during Mr Stilitz's submissions we were impressed by his reference to my words in paragraph 45 of the judgment in Ansar No 1, when I said that it can, on occasions, be a matter of significance if a witness, giving evidence, is receiving assurance or reassurance from someone nodding in the courtroom, such that, submitted Mr Stilitz, how much more so if that assurance or reassurance was being given by a member of the tribunal. It seems to us however that that is not necessarily a good analogy. The objection to a witness being coached long range by someone at the back of the court is likely to be that he or she will be giving evidence which is dependent upon signals being received from someone who is not giving evidence. The real mischief would be if, by virtue of something said or done by a tribunal member, the witness was being called to change his evidence: as was alleged in Marsh - the allegation, though not accepted by the EAT, being recorded in paragraph 31 of the judgment as being that the Chairman had "intervened in such a way as to prevent witnesses giving the evidence which they wished to give, and failing to allow them to complete their answers".
33. Even though Mr Daniel's evidence is that on three occasions Mrs Watts-Davies shook her head at Mr McCarthy questions before Mr Loosemore answered, it is quite clear to us that, even if it were expressly alleged, which it is not, that in some way Mr Loosemore changed his answers, such is wholly unlikely. It is apparent to us that Mr Loosemore was a strong and convincing witness who was, from the beginning, expressing a view with which, it seems, Mrs Watts-Davies was expressing agreement, and was not being 'led' by her. Far from it, he was effectively 'seeing off' Mr McCarthy.
34. Second, while allowing for possible exaggeration or "theatricality" (paragraph 39 of Mr Steen's affidavit) in Mr Daniels' account, we are satisfied that Mrs Watts-Davies was nodding and making clear her reactions to this passage of cross-examination. In this regard we note the evidence of the Respondent through Mr Rodgers, to which we have referred in paragraph 28 above, and to the evidence which we have quoted in paragraph 20 above from Mr Steen and further that Mr Steen says, at paragraph 10 of his affidavit:

"… all Chairmen of such companies have, in addition to attendance at board meetings, perhaps 30 minutes to an hour's conversation with the company's Chief Executive once a fortnight or so. He or she would not, therefore, be involved in investigating matters, nor stepping in and dealing with matters he was satisfied others were dealing with. These were matters put by Mr McCarthy that Mr Loosemore dealt with, and in respect of which I accept that Mrs Watts-Davies appeared to agree with Mr Loosemore."

35. Above all, we note the comments from the Employment Judge which we have set out in paragraph 22 above. To that end therefore, we accept that, whereas Mrs Watts-Davies may feel strongly that she was not doing that which is described in the affidavits, namely nodding enthusiastically, huffing, shaking her head and wringing her hands, nevertheless she was, as the Employment Judge described, making inappropriate sounds and, as the Respondent describes, nodding her head and not taking "particular pains to disguise her agreement with some of the points made on the Respondents' behalf".
36. Third, there is no doubt that the Respondent's case was at this stage riding high. It was obviously the case that the Appellant had not done well in cross-examination, that the Respondent's case (which would have appeared clear from the documents which the Tribunal had had the opportunity to read), that the Italian events were known to the Respondent and were being fully investigated (paragraphs 58 to 61 of the Tribunal's judgment) was persuasive, that Mr Segal was in the process of deciding not to call any further witnesses, and that the belated allegation of fabrication of documents by Mr Loosemore and the drip of belated disclosure by the Appellant were not impressive. And now a case was being put to Mr Loosemore which is said by the Respondent, and which appears to have seemed to Mrs Watts-Davies, not to accord with reality. Without herself articulating any statements – never easy or normal for a lay member, as opposed to the employment judge or tribunal chairman – Mrs Watts-Davies was therefore expressing her view by way of reaction to (what she seems to have seen as) unmeritorious arguments or evidence (Siemer at paragraph 38) which were being paraded (Jimenez at paragraph 29) before her. Her reaction was given notwithstanding that she had observed that someone on the Respondent's side (which turned out to be Mr Daniels) was targeting her (see paragraph 24 above).
37. In paragraph 11 of his excellent skeleton, Mr Stilitz lists some ground rules for employment tribunal members;

"11.1 Tribunal members should avoid overt signs of friendliness or hostility towards either party or representative.

11.2 Accepting that it will sometimes be necessary for the employment judge to be firm with a witness or representative, tribunal members should at all times act respectfully and courteously towards those who appear before them.

11.3 Tribunal members should keep to a minimum demonstrative reactions to evidence or submissions (whether by way of facial expressions, gestures, the making of noises or body language), save in the form of direct questions.

11.4 Tribunal members should avoid "asides", comments and remarks, unless formulated as direct questions to the employment judge, a witness or the representatives."

38. He describes these as wholly uncontroversial, and indeed they are. They are and would be useful guidelines for training of tribunal members, and it does seem as though in a number of respects Mrs Watts-Davies failed to comply with such ground rules. However, there is in our judgment a substantial difference between falling below the standard set by appropriate guidelines for professional judging, breach of which would or could amount to discourtesy, and would unnecessarily add to what is already the strain and stress of a court hearing, and evidence of bias. The question is whether such an obvious display, by body language, of approval of what a witness was saying is, notwithstanding the authorities referred to above, sufficient to evidence a closed mind, that is a mind which is made up not, as in Peter Simper, at a stage right at the outset of the hearing, but at least at a stage, though well into the hearing, materially before its conclusion.
39. There is in our judgment nothing in Day 4 which materially supports the Appellant's case. In the Notice of Appeal it is asserted that "the conduct recorded by Mr Daniels on the afternoon of Day 3 was representative of the Tribunal member's conduct throughout the hearing". We have already concluded that that was certainly not the case so far as Day 2 and the morning of Day 3 is concerned. As for Day 4, Mr Daniels was not present. The Appellant alleges that Mrs Watts-Davies "challenged … repeatedly and rather dismissively" the evidence of her two witnesses. This does not appear to be made out by reference to Ms Murray's notes. Ms Murray only records one or two questions by Mrs Watts-Davies, none of which appears to us to raise any material concern: her notes appear to suggest that, at one stage, Mrs Watts-Davies was filing her nails, but this is not dealt with in her affidavit, and is firmly denied by Mrs Watts-Davies, and we do not accept it. So far as Ms Juszczak is concerned, she was there all day on Day 4, and makes no such or any complaint, either by reference to her notes or otherwise. The effect of the Employment Judge's comments is that, after Mrs Watts-Davies's apology, he noted no further inappropriate noises or conduct from her.
40. There is one further incident relied upon by the Appellant, and that is the incident, which we have described in paragraph 9 above, during the closing submissions of Mr McCarthy on Day 5. The Employment Judge did not hear this. Mrs Watts-Davies denies that she made the comment. She says that she heard Mr Rodgers, the Respondent's HR consultant, say it under his breath. Mr Rodgers however (prior to sight of Mrs Watts-Davies's comments) stated (in paragraph 11 of his affidavit) that as far as he could remember he "did hear something being said in response to the attempt to introduce a newly discovered document by the Claimant at such a late stage". He therefore is not in terms saying that he heard it said by Mrs Watts-Davies, but plainly is not saying that it was he who said it. Mr Steen, the Respondent's solicitor, confirms that, in his belief, it was Mrs Watts-Davies who made the statement. The Employment Judge has no recollection. We are satisfied that Mrs Watts-Davies did make the statement. However, in our judgment, it is no worse that the recorded statement of "nonsense" said by the tribunal chairman in Marsh (paragraph 17 of the judgment), and one which, in the circumstances of disapproval of yet further late disclosure by the Appellant, could well be regarded as a "human" reaction (paragraph 39 of Marsh).

Conclusion

41. Against this background, therefore, we come to reach our conclusion. Albeit that we are, as can be seen, critical of the conduct of Mrs Watts-Davies during the half an hour period of the cross-examination of Mr Loosemore on the afternoon of Day 3, as amounting to conduct which was intemperate (though less so than in Kennedy) and discourteous, we are not satisfied that it evidences a closed mind on the part of Mrs Watts-Davies. Although, as Mr Stilitz has said, more difficult to cope with, and therefore more insidious, than the making of express statements, such reaction to a particular passage of evidence was rational – particularly once it was explained by the Employment Judge by reference to Mrs Watts-Davies's background – and overt. Although the passage of evidence given during the cross-examination of Mr Loosemore was of importance, as going to the Appellant's case that Mr Loosemore could or should have done or known more, or possibly did know more, than he was alleging, it was not decisive of the case; and much else needed to be resolved, not least the question, which the Tribunal resolved against the Appellant, as to whether the reasons given for the dismissal (said not to relate to the alleged whistleblowing) were genuine and the documents corroborating such case not fabricated, as the Appellant was belatedly suggesting.
42. What this, in our judgment, amounted to was the clear expression of view by the lay member that, on one aspect of the case, she found it difficult, if not impossible, to accept what was being put by the Appellant's Counsel to the Respondent's witness. In our judgment this amounted not to irrational animus, as Mr Stilitz contends, but to a reasoned reaction. It came at a stage after the evidence of the Appellant, but before the conclusion of the hearing. We are invited to say that it evidences a closed mind, premature judgment as to the outcome of the case unfavourable to the Appellant, on the part of Mrs Watts-Davies.
43. There are two matters upon which Mr Stilitz naturally places considerable reliance. They are intertwined. The first is the disclosure by the Employment Judge that he, of his own motion, had, prior to Mr McCarthy's intervention, thought it right to have a quiet word with Mrs Watts-Davies as to her conduct, and the second is that Mrs Watts-Davies, in her comments, does not accept even that which we have found, namely that she did, by her body language and gestures, overtly show disapproval of Mr McCarthy and approval of Mr Loosemore's answers, and secondly that she did, contrary to her statement, make the comment that the late attempt to disclose documents was ridiculous and too late. We conclude that the Employment Judge did have cause to remonstrate with Mrs Watts-Davies because of her breach of what Mr Stilitz has suggested ought to be non-controversial guidelines set out by us in paragraph 37 above, but that does not mean that he either believed, or that it was the case, that Mrs Watts-Davies had closed her mind, or indeed even formed a provisional view as to the entirety of the outcome of the case. Equally the fact that Mrs Watts-Davies has not been able to accept that she did even what the Employment Judge has told us he was satisfied she did does not mean that she had such closed mind, but is entirely consistent with her own embarrassment at the discourteous behaviour, for which she did, through the Employment Judge, apologise.
44. Having carefully considered the evidence in this case, in the light of the authorities which we have summarised above, we are not satisfied that a fair-minded, informed, observer, watching the conduct of Mrs Watts-Davies which we have found to have occurred, and seeing the course of the proceedings as they developed, would have concluded that there was a real possibility that she was biased, or that she had closed her mind to the Appellant's case. This appeal is accordingly dismissed.