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Cite as: [2003] EWCA Civ 132

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Neutral Citation Number: [2003] EWCA Civ 132

(Mr Recorder Langstaff QC)

Royal Courts of Justice
London, WC2
16th January 2003

B e f o r e :





(Computer-Aided Transcript of the Palantype Notes of
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DR MALCOLM COHEN appearing as a Litigation Friend appeared on behalf of the Appellant.
The Respondent did not appear and was unrepresented.



Crown Copyright ©

    Thursday, 16th January 2003

    J U D G M E N T

  1. LORD JUSTICE PETER GIBSON: This is an appeal by the employer, BLP UK Ltd ("BLP"), from the order of the Employment Appeal Tribunal ("the EAT") on 19th April 2002. Thereby the EAT dismissed BLP's appeal from the decision of an Employment Tribunal sitting Sheffield. By that decision, which was sent to the parties on 24th January 2001, the Tribunal upheld the complaint of the respondent employee, Anthony Marsh, that he had been unfairly dismissed by BLP. The EAT refused permission to appeal, but this court (Robert Walker LJ) granted permission on three of the four grounds sought to be advanced by BLP. He refused permission on the fourth ground. Those three grounds, on which the appeal to us today is now based, all relate to whether the Chairman of the Tribunal, Miss H A McWatt, gave the appearance of bias at the substantive hearing before the Tribunal. Unusually, the appearance of bias alleged is not that arising from some interest which a member of the Tribunal is said to have had in the outcome of the dispute or in either party to the dispute. The appearance of bias is said to have been manifested by conduct, the main thrust of the complaint being as to what was said to have been her body language and also as to the tone of written comments made by the Chairman when the allegation of bias made in affidavits for BLP was put to her.
  2. I turn to the background facts. Inevitably I must draw those facts largely from the Tribunal's findings, although I of course bear in mind that BLP by its challenge is seeking a rehearing before a differently constituted tribunal, and, if it succeeds in obtaining that relief, some at least of the facts found by the Sheffield Tribunal may not be endorsed by the new Tribunal.
  3. Mr Marsh was employed by Berman Components Ltd ("Bermans") as a stock controller from January 1992 in a business which was transferred to BLP in February 1999. Whereas prior to the transfer he had worked with three other employees, after the transfer he found himself working on his own with purchasing responsibilities. He had to spend most of his time in the warehouse identifying and re-identifying the stock of Bermans. He also became responsible for ordering foils. The stock control system for BLP differed from that for Bermans. The Tribunal found that Mr Marsh was finding his way between the two systems and at the same time doing jobs that he was not strictly employed to do.
  4. At the beginning of April 1999, at Mr Marsh's request, Mr Marsh being "desperate for support in his role" and having difficulties coping, he had a discussion with his immediate manager, Mr Kelly. It was left that Mr Kelly would organise support, and support did come, in the form of on-the-job training, as required, in BLP's computer system which was entirely different from that of Bermans.
  5. On 12th October 1999 Mr Kelly received a fax from a customer complaining of the late delivery of foils, a stock item. A disciplinary hearing was held on 18th October 1999. The issues to which the facts had given rise were discussed. Mr Marsh produced a brief report. The hearing was for a time adjourned to enable Mr Marsh to give an explanation of the customer's complaint. Mr Kelly carried out a review of the stock control situation, as a result of which Mr Kelly concluded that Mr Marsh's performance was totally inadequate. The Tribunal found that the review was cursory and, from Mr Kelly's own evidence, he had not taken into account significant factors. They are itemised in paragraph 6(p) of the Extended Reasons. Mr Marsh was invited to attend and attended a further hearing on 20th October 1999 when the customer's complaint was considered and other matters were raised by Mr Kelly. Mr Kelly did not accept Mr Marsh's explanations and indicated that he would have to decide whether Mr Marsh was capable of doing his job. He adjourned the meeting, considered the situation and indicated that he felt he had to terminate Mr Marsh's employment because he was not capable of performing in the function given to him. Mr Marsh was asked to clear his desk and leave the premises immediately. He was given one week's pay in lieu of notice.
  6. He appealed under BLP's internal appeal procedure. That appeal was heard by the Chairman and Director, Dr Malcolm Cohen, but the appeal was only by way of review of the procedure and not a rehearing and Dr Cohen rejected the appeal.
  7. Mr Marsh promptly applied to the Tribunal, complaining of unfair dismissal. He said that prior to the meetings on 19th and 20th October 1999 he had never received any warning in relation to his job performance and BLP failed to give him an opportunity to improve any aspects of his work with which it was dissatisfied. BLP's response was to claim that the relevant employment only commenced on 8th February 1999 and that the Tribunal had no jurisdiction to entertain the complaint of unfair dismissal. That issue was determined by Miss McWatt against BLP at a preliminary hearing. Remarkably BLP appears to have taken no account of the effect of the Transfer of Undertakings (Protection Of Employment) Regulations 1981 ("TUPE").
  8. At the substantive hearing in December 2000 BLP was represented by a solicitor, Mr Crawford. Mr Marsh was represented by counsel. In their Extended Reasons for upholding Mr Marsh's complaint the Tribunal concluded that BLP had failed to take any account of the true nature of the customer's complaint, which was a build-up of problems over two years for which Mr Marsh was only partially responsible. The Tribunal found that BLP had made no effort properly to review the complaint or the background to it or Mr Marsh's explanations, that BLP had relied upon a disciplinary procedure, there being no capability procedure, and the disciplinary procedure had not been followed in that Mr Marsh had not been formally warned about his performance or that his employment was at risk. Mr Marsh had never been told unambiguously that his performance did not satisfy BLP's requirements. BLP had given no consideration as to whether, with guidance as to its requirements and targets for improvement and review, Mr Marsh's performance would have improved. Further, although an alternative post was available, no consideration had been given to whether that employment was inappropriate for Mr Marsh. The Tribunal concluded:
  9. "In all the particular circumstances of this claim the tribunal concluded that no reasonable employer would have taken the view that dismissal was warranted or further that it was the only option available to it.
    The dismissal was therefore unfair."

    The Tribunal awarded Mr Marsh compensation in a total sum of £8,781.30.

  10. Before the Tribunal's Extended Reasons were received by the parties, Dr Cohen on 21st December 2000 wrote to the Regional Chairman of Tribunals complaining of the Tribunal Chairman's conduct of the hearing. When the Extended Reasons arrived BLP appealed to the EAT on four grounds. The appeal came before the EAT, His Honour Judge Altman presiding, for a preliminary hearing at which Dr Cohen appeared for it. One ground was an attack on the findings of the Tribunal as to the conduct of the internal appeal hearing before Dr Cohen when the Tribunal had refused an adjournment sought to facilitate Dr Cohen's attendance. The EAT refused to allow that ground to go to a full hearing. A second ground was that the Tribunal was perverse in making certain findings of fact, including the finding that the catalyst and main reason for Mr Marsh's dismissal was the customer's complaint of 12th October 1999. That ground also was not allowed to go to a full hearing. A third ground was that the Tribunal had given no reasons in relation to certain matters connected with the quantification of the compensation awarded. The EAT allowed that to go to a full hearing. A fourth ground was that the Tribunal had given the appearance of bias.
  11. BLP relied on two affidavits from witnesses who had given oral evidence. Mrs Samantha Walker, BLP's personnel manager, said in her affidavit:
  12. "4. As soon as the hearing began, the Chairman displayed a hostile attitude towards the Appellant. She seemed to be very angry that we had renewed our application for an adjournment due to Dr. Cohen's unavailability. Her manner in disposing of this application was unpleasant and dismissive. She acted similarly in connection with our application for leave to amend our Notice of Appearance.
    5. I was the second witness for the Appellant. The Chairman was aggressive and unpleasant towards me. She asked me questions but would not allow me to finish my answer before asking me another question. Her body language was hostile -- she fixed me in an aggressive gaze, she snorted and tutted, she rolled her eyes and looked up at the ceiling and shook her head.
    6. I found Miss McWatt's conduct extremely difficult to handle. I was intimidated and felt bullied. It was a most unpleasant experience.
    7. My impression was that the Chairman had made up her mind before she entered the room. She seemed disinterested in anything that I, Mr. Kelly or Mr. Crawford said.
    8. I have attended a large number of Tribunal hearings over the years and I have never before seen a Chairman behave in such an apparently biased way.
    9. When Mr. Marsh gave his evidence, the Chairman seemed to undergo a personality change. She became relaxed and friendly. She joked and bantered with Mr. Marsh. The contrast between her conduct towards myself and Mr. Marsh was enormous. My impression was that the Chairman would accept anything which was said by Mr. Marsh or his witness."
  13. The other affidavit was from Mr Kelly, who said in paragraphs 3 to 7:
  14. "3. When I gave my evidence, the Tribunal Chairman questioned me in an aggressive and bullying way. She glared at me and almost mocked my answers by her facial expressions. She never allowed me to finish my answers and her style of questioning was unpleasant especially as I am not used to giving evidence to Courts or Tribunals.
    4. Mrs. Walker gave her evidence after me and she was given an even harder time by the Chairman. The Chairman was rude and seemed not to care about anything that Mrs. Walker said. Her body language was really hostile and I could see that Sam Walker was intimidated.
    5. After lunch, Mr. Marsh (the Respondent) and his witness gave their evidence. I was amazed at the difference in the way that the Chairman behaved towards Mr. Marsh. She was friendly and laughed with him. She smiled and nodded and her body language was encouraging.
    6. I thought that the Chairman was unfair and biased against the Appellant. To me, the case was all over within the first two minutes, before anyone gave evidence. It was obvious that the Chairman had already decided the case.
    7. In my opinion, the Appellant did not get a fair hearing."
  15. In accordance with the Practice Direction of the EAT paragraph 9(4), when such allegations are made the members of the Tribunal were invited to comment on the affidavits. In a letter dated 3rd April 2001 the Chairman's brief comments were conveyed to the EAT. She said of the complaints as to her body language:
  16. "I am unable to comment as to the allegation of rolling my eyes.
    I am vibrant but this is not a mannerism which has ever been drawn my attention previously. I do however take issue with the suggestion of 'tutting'. This is simply not part of my being."
  17. A memorandum from one of the lay members, Roger North, which is dated 21st March 2001, said this:
  18. "2. I have read with some incredulity the affidavits of the two witnesses regarding Miss McWatt's attitude towards them. At times I have wondered if I had been in the same Tribunal as the witnesses. Sitting next to Miss McWatt, I don't recall her 'tutting'. I cannot say whether she 'rolled her eyes' or not. I was not aware of any hostility towards the respondents' witnesses and equally I was not aware of a change of attitude towards the applicant when he gave evidence.
    4. Witnesses were questioned in some detail by Miss McWatt. I don't consider her attitude to them was hostile. It was thorough and their responses reinforced my opinion that the respondent's witnesses were ill-prepared or unwilling to provide the detailed and accurate answers required of them.
    6. I have been a Lay Member for nearly eighteen years. I have no difficulty informing a Chairman if I consider he or she is acting improperly in the conduct of the case. I made no such comments in this case and I can see no justification to consider that in not doing so I acted incorrectly."
  19. More briefly, the other lay member, Brenda Rogers, in an undated letter wrote saying:
  20. "At no time during the hearing did I think the Chair was intimidating witnesses."
  21. BLP presented a schedule setting out the rival allegations and commenting on them. The EAT decided that the Chairman should be given the opportunity to comment on that schedule. They also suggested that Mr Crawford might be invited to comment. The decision on the ground of appeal relating to bias was therefore left to the EAT which would hear the appeal on the absence of reasons in respect of compensation.
  22. Mr Crawford provided an affidavit dated 2nd July 2001. In it he said:
  23. "6. On 13 December 2000 I was both presenting the case and taking a note of the proceedings. For this reason I was not in a position to observe the body language of Miss McWatt or witnesses. I can, however, make a number of comments on the conduct of the hearing.
    7. Miss McWatt questioned the Appellant's witnesses, Mr Sean Kelly and Mrs Samantha Walker, aggressively. Mrs Walker was subjected to particularly aggressive questioning to the effect that the Appellant had only dismissed the Respondent because it believed he did not have sufficient period of continuous employment to bring a claim for unfair dismissal. I am informed by Dr Malcolm Cohen and Mrs Walker of the Appellant, and I believe, that the issue of the Respondent's length of continuous employment was decoded at preliminary hearing which was also chaired by Miss McWatt. I did not represent the Appellant at that hearing. While Miss McWatt might not, in fact, have made up her mind about the Appellant's thought process in dismissing the Respondent prior to hearing Mrs Walker's evidence on 13 December 2000, I do believe that Miss McWatt's behaviour could well have given the impression to an uninvolved observer both that she had already made up her mind irrespective of Mrs Walker's evidence, and that this issue had coloured Miss McWatt's view of all the evidence in the case.
    8. I have worked with the Appellant for a number of years and have seen Mrs Walker give evidence in a number of cases. She is an experienced witness and in my view normally gives her evidence in a straightforward and credible manner. I believe that she was upset by her treatment by Miss McWatt at this hearing.
    9. Miss McWatt's treatment of the Respondent and his witness, Mr Ian Cardy, when they gave evidence was quite different. She did not question them in an aggressive way.
    10. I made closing submissions in the case on a number of issues. My impression was that Miss McWatt was not interested in listening to those submissions. She interrupted me on a number of occasions and appeared to me at that stage already to have made up her mind.
    11. Rightly or wrongly I did not challenge Miss McWatt on her behaviour at the hearing. My view was that to do so was very likely to lead to an acrimonious argument with Miss McWatt which would not have served the Appellant's interests. I remained courteous to Miss McWatt throughout the proceedings; I did not feel this courtesy was reciprocated by Miss McWatt. I did feel Miss McWatt treated the Respondent's representative with greater courtesy."
  24. The Tribunal Chairman by a letter dated 14th September 2001 responded in some detail to Mr Crawford's affidavit. She deals with the allegations relating to her behaviour with some asperity. I will refer only to three passages. First, in relation to Mr Crawford's paragraph 11:
  25. "I cannot challenge Mr Crawford's claim that he 'felt that he was treated with less courtesy than the respondent's representative.' That is his perception and could be seen easily to be misconceived, particularly when one takes into account the apparent weakness of the case he was presenting and/or the fact that that weakness appeared not to have been appreciated prior to the hearing. Mr Crawford may have had every good reason to feel uncomfortable in the circumstances but that clearly cannot be attributed to the Tribunal.
    Looking at the notes of evidence I concede one instance when I remarked to Mr Crawford that his contentions had to be 'nonsense' -- Mr Crawford challenged the respondent's contention that Mr Berman was still authorising orders and said that the respondent had not raised that particular matter before. I interrupted him saying that that must be 'nonsense' because I could recollect seeing reference to that issue in the bundle of documents. The respondent's representative pointed out the page number of the documents to me and I thanked him.
    No doubt at that stage, Mr Crawford felt under some pressure. I make no apologies for expecting professional representatives to be aware of the content of the documents which they place before the Tribunal.
    I do pause to wonder whether, had Mr Crawford felt that his witnesses were not being allowed to answer questions put to them that, despite the fact that he was taking notes, he might have thought it appropriate to at least ask that his witnesses be allowed to answer the questions put to them. At no stage did he do so."
  26. Then in respect of paragraph 2.1.2 in the schedule of BLP, the Chairman said this:
  27. "I categorically deny snorting, tutting, rolling my eyes, shaking my head or otherwise as suggested - these are absolutely no part of my demeanour. I am myself an advocate within the Tribunal jurisdiction and as such I am particularly conscious of being seen to have been given a fair hearing. As far as the allegation re 'aggressive gaze', I accept that it is my practice to look directly at anyone to whom I am addressing any question or remark I would certainly have looked at the witnesses. It is difficult to know what 'an aggressive gaze' means to the appellant's witnesses. At no stage did I believe that I was acting in an intimidating."

    Obviously a word like "manner" should have been added at the end of that sentence.

  28. Thirdly, in respect of paragraph 2.2 of the schedule, the Chairman said this:
  29. "The appellant's complaints may be viewed as being 'well particularised'. It is however general and non-specific to a very large extent. I do not feel able to be any more specific in my absolute denial of the allegations. I maintain my belief that the appellants are misconceived - I would go so far as to call into question whether or not these allegations were perceived as such on the day or whether they became a reality for the appellant after consideration of the findings of the Tribunal against the appellant."
  30. Mr Crawford then produced a second affidavit dated 26th October 2001 on points arising from the Chairman's comments, but I do not think it necessary to refer to that affidavit.
  31. Finally, I should refer to a letter dated 27th February 2002 from Mr Marsh. In it he said that because of his financial situation he would not be present or represented at the appeal. He went on to say this:
  32. "I was dismayed when I learnt that BLP had won the right to an Appeal Hearing based on Bias. I did not feel that during the hearing I was given any preferential treatment by the Chairperson or from either of the Laypersons. I found the whole process to be very distressing and very stressful. The questions made to me by the Chairperson were equally as sharp and to the point, exactly in the same manner as put to the witness' for BLP."

    Mr Marsh ended the letter by saying that the case of bias that BLP had brought was totally unfounded and untrue.

  33. There was then a hearing before the EAT, Mr Recorder Langstaff QC presiding, on 18th and 19th April 2002. Dr Cohen represented BLP alone on the appeal and Mr Marsh was not present or represented. The Recorder giving the judgment of the EAT considered whether they should give leave for the appeal on the ground of bias to be argued. He said that such was the force of the argument addressed to the EAT that they thought it right in the course of the hearing to give leave. The EAT accepted the law as expounded by Dr Cohen.
  34. Reference was made to the summary by Lord Phillips MR in Re Medicaments v Related Classes of Goods (No 2) [2001] 1 WLR 700 at page 726 of the principles to be derived from the cases decided on the subject of bias by the European Court of Human rights. He said:
  35. "83 We would summarise the principles to be derived from this line of cases as follows. (1) If a judge is shown to have been influenced by actual bias, his decision must be set aside. (2) Where actual bias has not been established the personal impartiality of the judge is to be presumed, (3) The court then has to decide whether, on an objective appraisal, the material facts give rise to a legitimate fear that the judge might not have been impartial. If they do the decision of the judge must be set aside, (4) The material facts are not limited to those which were apparent to the applicant. They are those which are ascertained upon investigation by the court. (5) An important consideration in making an objective appraisal of the facts is the desirability that the public should remain confident in the administration of justice.
    84 This approach comes close to that in R v Gough [1993] AC 646. The difference is that, when the Strasbourg court considers whether the material circumstances give rise to a reasonable apprehension of bias, it makes it plain that it is applying an objective test to the circumstances, not passing judgment on the likelihood that the particular tribunal under review was in fact biased.
    85. When the Strasbourg jurisprudence is taken into account, we believe that a modest adjustment of the test in R v Gough is called for, which makes it plain that it is, in effect, no different from the test applied in most of the Commonwealth and in Scotland. The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased.
    86 The material circumstances will include any explanation given by the judge under review as to his knowledge or appreciation of those circumstances. Where that explanation is accepted by the applicant for review it can be treated as accurate. Where it is not accepted, it becomes one further matter to be considered from the viewpoint of the fair-minded observer. The court does not have to rule whether the explanation should be accepted or rejected. Rather it has to decide whether or not the fair-minded observer would consider that there was a real danger of bias notwithstanding the explanation advanced."
  36. The Recorder in paragraph 10 of the EAT judgment referred to the decision of the House of Lords in Porter v McGill [2002] 2 AC 357 in which the remarks of the Master of the Rolls, to which I have referred, were endorsed save for the deletion of the reference to "a real danger". The test, Lord Hope said, at page 494H, paragraph 103, 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. The EAT said that that was the relevant inquiry. They said further that, so long as there was a real possibility of one member of the Tribunal of three being biased, a reasonable well-informed observer would think that there was a real possibility of bias.
  37. I should quote paragraph 11, as it makes an important point:
  38. "Finally, we bear in mind what was derived from the decision of the Court of Appeal in the Locabail appeals [2000] IRLR 96, as amplified by the decision of the President in this court in the decision of Facey v. Midas (2001) ICR 287, that is that the subjective views of any individual providing evidential material as to whether they were or were not biased is irrelevant and must be discounted. That is because such evidence is subjective, whereas our focus has to be upon the impact which objectively would appear to the reasonably well informed observer."
  39. The EAT, having embarked upon what they called "this objective inquiry", asked themselves what material there was upon which they could, first of all, establish to their satisfaction the objective facts before proceeding to an analysis of whether those facts would alarm the reasonably well-informed observer that there was here a real possibility of bias. They summarised the factual material before them. In doing so they rejected an application by BLP that the EAT should hear oral evidence from Mrs Walker. One ground on which BLP sought to appeal to this court was that the EAT were wrong to refuse to hear that oral evidence, but Robert Walker LJ refused permission to appeal on that point and I say no more about it.
  40. The EAT summarised Dr Cohen's submission that the reasonable well-informed objective observer would see in the conduct of the Chair such a degree of hostility to one side of the argument before her as to demonstrate a closed mind. The EAT then said:
  41. "18. Such a case inevitably involves a question of degree. Employment Tribunals, in our view and experience, are entitled to form views, even strong views and to react to the evidence which is called before them. It is very easy for that reaction to be misinterpreted as a reluctance to listen to one side of the evidence. We remind ourselves however that we must always be alert to the danger of an appeal court taking as over-reaction that which is in fact clearly to be observed by the objective onlooker as improper hostility."
  42. The EAT then stated what were the objective facts which they found. They were that the Chairman's questioning of witnesses was pointed and that the Tribunal showed a greater warmth towards the evidence of Mr Marsh. They found that the Chairman described as "nonsense" a point taken before the Tribunal, that the Chairman had suggested to Mrs Walker that she had mistakenly believed Mr Marsh to have been employed for less than a year and that Mrs Walker thought she would get away with a dismissal, and that the Chairman suggested to Mr Crawford that he could not have a bite of the cherry simply because the Tribunal had on an earlier occasion granted Mr Marsh an adjournment. The main issue, they said, was as to body language. They 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.
  43. The EAT then considered the origin of that. They referred to Mr Crawford's application for an adjournment as one for which there was no good or proper ground and as being almost certain to fail. They also referred to the late application to amend BLP's IT3 to allege conduct as a reason for dismissal. They call that "an eleventh hour sea-change". They said in paragraph 22:
  44. "Drawing on the materials to which we have referred and in the light of our own experience which we believe we are entitled take account of, we have concluded that in the light of this material it is quite likely that the Chair did not think that there was much merit in the case which the Respondents had put forward to her in those applications. We think she would be entitled to at least have in the back of her mind the nature of the second of those applications when she came, as she would have to as a member of the Tribunal, to examine what the reason for the dismissal was. This was the first question to which her mind would have to be addressed under section 98 of the Employment Rights Act 1996."
  45. They said that the Chairman would approach the evaluation of the evidence of Mr Kelly with a natural scepticism. They continued in paragraph 23:
  46. "When he describes her reaction to him we have to determine whether that reaction was so excessive that it would give rise to a view in the objective uninformed observer there was a real possibility of bias. The real possibility would be that of bias in the sense of there being a closed mind. No observer could feel that there was such bias if a Tribunal was reacting not inappropriately, albeit strongly, to the evidence which was being laid out before it."
  47. They concluded that the behaviour of the Chairman did not amount to what would be required to show a real possibility of bias for a number of reasons. Only Mr Kelly had given evidence of tutting and the rolling of eyes, whereas to form the impression of a closed mind one would have expected other witnesses to report it. They saw that evidence as being "coloured by perception". They noted that the perception of unfair treatment and poor behaviour came from Mr Kelly and Mrs Walker, both witnesses, and to an extent from Mr Crawford, but that significantly he did not endorse any of the complaints in respect of body language. On the question whether the Chairman 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, they balanced Mr Kelly's and Mrs Walker's evidence against Mr Crawford's silence and behaviour. They were unable to draw from the material the conclusion that there was evidence from which a real possibility of bias could be seen. They said that, if that were all, they would have rejected the appeal as unarguable; but what gave the EAT pause was the commentary by the Chairman. They referred to the submission of Dr Cohen that the last letter from the Chairman revealed such a degree of intemperate, ill-judged and inappropriate comment that it demonstrated the behaviour that the Chairman must have engaged in before the Tribunal.
  48. The EAT said that they saw that submission of Dr Cohen as having a certain amount of force in it. They referred to some of the comments and then said this:
  49. "30 ... it is unhelpful to a Tribunal in our position reviewing an issue of bias to have comments from an observer which do not and cannot add to the relevant factual material. We think it a great pity that the Chair has interpreted the request from this Tribunal to provide comments as being a request that she should be an advocate in her own case, whereas one might have hoped for a demonstration of balance and moderation. The Chairman has, we regret, not been able to resist the temptation of becoming an advocate in her own case and in speculating upon matters which are for us to speculate upon, if it is for anyone. We have had to consider whether or not the terms and tone of that commentary are capable of shedding light upon that which happened before the Tribunal.
    31. We think that it is capable of doing so in general terms. But we do not think that there is sufficient in it, despite those aspects to which we have drawn attention, and the greater number of matters arising from it to which Mr Cohen has drawn our attention, to regard it as changing the view which we would otherwise provisionally have formed upon the other material available to us. This is because, first, we have concluded as we have indicated that this Chairman did indeed react to an extent to the evidence and material before us. We think that the evidence of that which has come from her later shows that she is inclined perhaps to react fairly strongly to material which is before her. But this does not mean that she was incapable or becoming incapable of dealing with matters in a fair and balanced way. Secondly, we consider that this is material after the event: it is the third occasion upon which she was asked to provide for comments and we understand the note of impatience at the conclusion of that letter when she indicates that she would not wish to give any more energy to rekindling the flames of the fire. We think that she may have misinterpreted the call for comments from this Tribunal though perhaps she should not have done so, and that she saw herself as being under attack, as indeed she was in one sense, and responded therefore in the way that she did. But that does not indicate that she acted in the Tribunal in a manner in which the impartial observer would on the occasion of this Tribunal have regarded as so unbalanced as to indicate a closed mind.
    32. Accordingly, we have come to the view that on the evidence we have, that taking everything into account as we do finding the objective facts as we have attempted to do, and evaluating those against the experience that we have and against the other factors which we have mentioned, we do not find that this appeal is made out.
    33. We are reassured in doing so by that which I referred to at the outset, the context within which the claim is set. We note that it is one of those cases in which one would expect a Tribunal chair to take an increasingly dim view of the employer's case as the evidenced progressed. There was no appraisal, no capability procedure, no targets were set, there was no clearly recorded attempt to ensure that the employee would have an opportunity to improve his performance (preferably against yard sticks). This would have become apparent progressively through the evidence in the morning of Mr Kelly and Mrs Walker. We note that it was thereafter that the evidence of the employee was given. It must frequently be the case that at that stage of a hearing, a Tribunal's views, which are inevitably developing throughout the course of it, would have become rather more friendly toward him than they would have been at the outset towards anyone who had given evidence and involved as they were towards BLP."

    They then turned to the appeal on the lack of reasons for the award of compensation. They allowed that appeal and remitted that matter to a fresh tribunal.

  50. There are three grounds of appeal to this court with which we are concerned. They have been set out by Dr Cohen with clarity in the grounds of appeal and in the written skeleton argument which he has provided for us, and he has added to them in his oral submissions before us today. He has plainly gone to a great deal of trouble in preparing himself for this appeal and we are grateful to him for his assistance.
  51. The first ground of appeal is that the EAT applied too rigorous a test in deciding whether the allegation of bias was made out. Dr Cohen acknowledged that the EAT correctly referred to the appropriate test as enunciated in the Medicaments case -- indeed he could hardly fail to do so as the EAT were repeating his own submissions as to the law -- but he submitted that the EAT failed to apply that test to the appeal before them. He submitted that the EAT, in reality, were deciding whether they themselves considered that the Chairman had acted in a biased manner. Dr Cohen referred in his skeleton to a number of passages in the EAT's judgment, but before us he confined himself to an attack on paragraph 31 of the EAT's judgment, though I did not understand him to resile from his attack on paragraph 32 as well. He submitted that the EAT showed themselves as going wrong when they said this in paragraph 31:
  52. "We think that the evidence of that which has come from her later shows that she is inclined perhaps to react fairly strongly to material which is before her. But this does not mean that she was incapable or becoming incapable of dealing with matters in a fair and balanced way."

    Those two sentences, certainly, do not state that the EAT were applying the test which the EAT had earlier said was the appropriate test, that of the well-informed fair-minded observer. But, in my judgment, it is quite impossible to suggest that the EAT at that point forgot what was the test that they were required to apply. They had repeatedly referred to the need to view the possibility of bias as appearing objectively through the eyes of the reasonable well-informed observer. The last sentence of paragraph 31 again shows that they had the impartial observer well in mind. In my judgment it is therefore hopeless to seek to say from the second of those sentences in paragraph 31 which I have cited that the EAT were applying the wrong test.

  53. In paragraph 32 the EAT again do not refer to the impartial observer, but that paragraph was plainly the summation of the EAT's views on the points which had been put before them. True it is they refer to the experience that the EAT had; but that was the third reference which they had made to using their experience. In my judgment to suggest that that means that the EAT had forgotten the test which they were to apply is again fanciful. I repeat that in the previous sentence, the last sentence in paragraph 31, they had referred to the impartial observer. The EAT are surely entitled to use their experience, for example in assessing what are the factors which the well-informed observer would take into account. They are accustomed to dealing with cases of this sort; they know what occurs in tribunal hearings. In my judgment no error is disclosed by paragraph 32. Accordingly, I cannot find anything to make good the first ground of appeal.
  54. I should add that Dr Cohen also launched a strong attack on whether the EAT could reasonably have concluded as they did in paragraph 31. He accepts that the EAT had applied the right test when they said at the end of paragraph 30:
  55. "We have had to consider whether or not the terms and tone of that commentary are capable of shedding light upon that which happened before the Tribunal."

    But he submits that the actual reasons given should not have been given the weight which the EAT gave. Of the two reasons which are specified one is that although the Chairman did react to an extent to the allegations and that the evidence which came from her in the commentary showed that she was inclined to react fairly strongly to material before her, that did not mean that she was incapable or becoming incapable of dealing with matters in a fair and balanced way. In my judgment the EAT were entitled so to conclude and cannot be said to have erred in reaching that first conclusion.

  56. The second reason given was that the commentary was material after the event. They noted that the Chairman had been asked to provide comments previously and the EAT said, in effect, that it was understandable that a tone of impatience had come into the responses made by the Chairman. The EAT were there recognising that the Chairman had been asked to comment on an attack made against her integrity in performing a judicial function, a most serious personal allegation. They were also, I think, making the point that the light that could be shed on what happened before the Tribunal by a commentary given months after the hearing might be very limited. The question of bias with which the Chairman was dealing in her commentary was not one of the points which were in issue before the Tribunal at the hearing when the Chairman made the comments and used the body language which are said to have constituted bias. In other words, it was a quite different matter at the hearing in the Tribunal. In my judgment the EAT were entitled to reach the conclusion which they did in paragraph 31 on the material before it.
  57. The second ground of appeal is that the EAT erred in speculating as to the reasons for the Tribunal displaying a contrast between the BLP and Mr Marsh. Dr Cohen submits that the EAT, having concluded that there was a contrast in the Chairman's behaviour towards the parties, should not have gone on to speculate as to the reasons for that contrast. He says that the reasons are irrelevant and that what matters is not why the Chairman acted as she did but what impression that conduct created on a fair-minded observer. He further attacks the reason, which is referred to by the EAT as not being the true reason why the Chairman behaved as she did. He says that it was because at the preliminary hearing the Chairman formed a view on the TUPE point adverse to BLP that the unfavourable view formed of BLP at that point governed her later conduct.
  58. As I read the passages where the EAT discuss why it was that the Chairman regarded with less warmth the case for BLP than it did for Mr Marsh, they were setting out the background, of which the reasonable well-informed observer would be aware, to the comments and behaviour on which BLP relied as constituting bias. It is inevitable that a tribunal will react to what is paraded before it. The worse the case that is put before it, whether it be on a preliminary issue such as the TUPE point or the two applications which the EAT plainly regarded as hopeless or the evidence given for BLP, 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 and as to the relevance of the points which were sought to be made, whether by submission or evidence. It is the duty of the Tribunal not to allow valuable time before them to be wasted, and a Chairman must seek to control the case being heard so as to prevent peripheral or wholly irrelevant points being taken. The Chairman is also fully entitled to try to obtain an answer from the party which might otherwise be subject to an adverse finding to points which trouble the Chairman as being of great relevance to the outcome of the case. Inevitably there are times when the advocate and the witness will find that uncomfortable. But that in itself cannot, of course, be sufficient to found a case of bias or the appearance of bias.
  59. I am not persuaded that the EAT made any error in considering the points which they do in the paragraphs in question, that is to say paragraphs 21, 22 and 23. They were viewing the matter through the eyes of the well-informed observer who must be taken to have complete knowledge of all that had occurred in the case and to be apprised of what was of significance to the outcome of the case. It is inevitable, when a difficult case is presented and the Tribunal press for answers but the answers given do not satisfy them, that the Tribunal may feel less warmth towards that party's case than that of the other party. I bear in mind too that the subject matter of the complaint to the Tribunal was one of unfair dismissal on the ground of capability, a commonplace case which a tribunal will have encountered many times. In such cases it has become the norm for the employer to show he has followed certain procedures if he is to succeed in his case that dismissal for the capability reason was justified. In this particular case it was found by the Tribunal that elementary procedures were not followed by BLP. I therefore do not find it surprising, nor have I seen anything to suggest, that the Tribunal acted unreasonably in regarding the case for BLP as being a difficult one.
  60. The third ground of appeal is that the EAT erred in relying on the impugned findings of fact in reaching its conclusion. As I understand it, virtually all the facts found are sought to be impugned by BLP. Dr Cohen submits that material was put before the Tribunal on which the Tribunal could have reached a conclusion favourable to BLP and adverse to that of Mr Marsh. He says that that evidence was credible. He further says that it was quite wrong of the EAT to rely on the impugned findings in support of the conclusion which the EAT reached.
  61. I have to say that the use made by the EAT of the findings by the Tribunal seems to me not to have been crucial to the EAT's decision, as they only say in paragraph 33, having said in paragraph 32 that the appeal was not made out, that they were reassured by the context within which the claim was set. Any issue of bias must be considered against some background of fact. It is not now suggested that the findings of the Tribunal were perverse or unsupported by evidence, even though I acknowledge that some facts might be seen differently by another tribunal. We are supplied with very little material as to what is the credible evidence which Dr Cohen suggests would support a different conclusion. As Judge Altman pointed out in his judgment on the preliminary hearing, at least in relation to one matter, evidence on which Dr Cohen had relied did not meet the point found by the Tribunal. Judge Altman, giving the judgment of the EAT, made reference to paragraph 8(iv) of the Extended Reasons of the Tribunal in which it was found that there was no evidence that BLP had given any consideration as to whether, given a full and proper appraisal of his performance, guidance as to BLP's requirements and targets for improvements and review Mr Marsh's performance would have improved to the extent that he would have remained in employment. Judge Altman went on to say:
  62. "It is said that that was contrary to the evidence of Mr Kelly at paragraph 20 of his witness statement, that Mr Kelly formed the opinion that the Respondent was not capable of performing the function. But that, it seems to us, is exactly the point the Employment Tribunal were making. There may have been a general impression on the part of Mr Kelly, but the Employment Tribunal are saying there was no evidence that the sort of regular and careful analysis that they refer to in 8.(iv) was accomplished."

    Thus, on any view, as it seems to me, it is clear that there was a defect in the procedures of BLP in seeking to rely on capability as a sufficient reason for dismissing Mr Marsh.

  63. In my judgment, it is impossible to say that the EAT made any error of law in doing as they did. There are many cases, unhappily, these days on bias. Dr Cohen was able to show us no case in which judgement was given by an appellate tribunal in a way which excluded all the facts as found by the Tribunal whose decision was sought to be impugned on the ground of bias. I do not believe for one moment that the EAT ignored the fact that the outcome of a successful appeal before them would have been a fresh hearing. Nevertheless, they reached the conclusion which they did against the background of facts which had been found by the Tribunal and which gave them reassurance. I do not think that thereby an error was made.
  64. Accordingly, for these reasons, despite Dr Cohen's attempts to get this appeal on its feet and despite the sincerity, which I in no way doubt, of his belief that BLP did not have a fair hearing, I am not persuaded that there is any basis on which it would be proper for this court to interfere with the conclusions reached by the EAT.
  65. I would dismiss this appeal.
  66. LORD JUSTICE KEENE: I agree. I am in no doubt that the Employment Appeal Tribunal did apply the legal test which it has set out in its judgment and I wish to say nothing further on the first ground of appeal. I would only add a few words in respect of ground two and three.
  67. Ground two criticises the EAT for speculating as to the reasons why the Chairman behaved somewhat differently towards the employer's witnesses than towards the employee. Dr Cohen argues that those reasons were irrelevant.
  68. One is only concerned with the impression made on the fair-minded observer. I do not accept that there is any clear-cut distinction of that kind properly to be drawn. Such an observer would not look at this behaviour of the Chairman in isolation from the surrounding circumstances. The fair-minded observer would bear in mind the context in which the Chairman seemed to act in a less enthusiastic way in respect of BLP's case than she did in respect of Mr Marsh's case. In other words, the observer would take into account what led up to that part of the hearing. That seems to me to be all that the EAT was doing in paragraphs 21 to 23 of its decision. It was putting itself in the position of the fair-minded and impartial informed observer and saying that such an observer, in interpreting the Chairman's behaviour, would have understood why the Chairman was so acting. In effect, the EAT was saying that such an observer would, given the context, not have regarded the Chairman's attitude as showing a closed mind. That seems to me to have been an entirely legitimate approach.
  69. As for ground three, I see the force in Dr Cohen's submissions that an appeal body should not rely on findings of fact which are challenged on the basis of bias. But in the present case the EAT only relied to any significant degree on matters of primary fact when it got to paragraph 33 of its judgment, to which my Lord has already referred. By that time it had already determined that the complaint of bias had failed. This paragraph was effectively a postscript to the decision and formed no part of its basic reasoning. I can see nothing, therefore, in the third ground of appeal.
  70. For those reasons, as well as those given by my Lord, I would dismiss this appeal.
  71. MR JUSTICE JACOB: I agree with both judgments.
  72. Order: Appeal dismissed.

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