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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Menzies Distribution Ltd v Mendes (Practice and Procedure : Bias, misconduct and procedural irregularity) [2014] UKEAT 0497_13_2003 (20 March 2014) URL: https://www.bailii.org/uk/cases/UKEAT/2014/0497_13_2003.html Cite as: [2014] UKEAT 0497_13_2003, [2014] UKEAT 497_13_2003 |
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At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE LEWIS
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
FULL HEARING
APPEAL FROM DEPUTY REGISTRAR'S DIRECTIONS
For the Appellant | MR CRAIG RAJGOPAUL (of Counsel) Instructed by: Peachey & Co LLP 95 Aldwych London WC2B 4JF |
For the Respondent | MS SAARA IDELBI (of Counsel) Instructed by: Edward Duthie Solicitors 292-294 Plashet Grove East Ham London E6 1EE |
SUMMARY
PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
The Employment Judge held a Pre-Hearing Review on 6 December 2012 on the question of whether the Claimant had a disability. He heard evidence and submissions. He reached a decision, namely that the Claimant was disabled, and announced that orally at the end of the hearing. He gave no reasons, orally intending, it seems, that the reasons be given in writing. The tape of the hearing was lost. The Employment Judge indicated that he could no longer give reasons as he could no longer remember part of the case and there would need to be a re-hearing of the issue as to whether the Claimant was disabled.
He then conducted the re-hearing himself on 19 June 2013. He heard evidence and submissions and reached the same conclusion as he had on the earlier occasion. In his written reasons, he stated that he had reached a firm conclusion on the issue on 6 December 2012. He also indicated that he did not need to recuse himself from the hearing on 19 June 2013 as he had not given an indication of his conclusion and the rule against the appearance of bias did not reply.
In the circumstances, a fair-minded observer, knowing the facts, would consider that there was a real possibility of bias at the hearing on 19 June 2013. The Employment Judge had announced a firm conclusion – not a provisional view – at the hearing on 6 December 2012. In those circumstances, a fair minded observer would consider that there was a real possibility that the Employment Judge could not consider the issue impartially on 19 June 2013 but would be bound to be influenced by his earlier decision.
THE HONOURABLE MR JUSTICE LEWIS
Introduction
The application to amend the Notice of Appeal
The application for extension of time
The substantive appeals
The procedural history
"In view of the delay and the problems which have occurred Employment Judge Milton regrets that he has decided to adjourn this hearing listed for 17th-21st June 2013. The date of 19th June however will be retained for a further Pre-Hearing Review to decide the precise period of the Claimant's disability claim; the scope of any claim for reasonable adjustments and to enable the Respondents to argue for a review of the Judge's conclusion in principle that the Claimant is a 'disabled person' within the meaning of the Equality Act 2010."
"The oral Judgment of the Tribunal given to the parties on 6 December 2012 that the Claimant is declared to be a disabled person is confirmed. It is further declared that for the purposes of these proceedings the Claimant is declared to be a disabled person with effect from 1 December 2010."
"Insofar as the Respondent sought either by way of an application for a review or in any event that the oral judgment/orders made by Judge Milton on 6 December 2012 be set aside and in their entirety and the case remitted to a differently constituted Tribunal that application is refused."
The Employment Tribunal decision
"By the conclusion of the proceedings, after submissions on each side, I had in my mind reached a firm conclusion that I was persuaded that the Claimant had a physical impairment because of her back condition which had lasted for at least a year, and furthermore that in addition to her case already pleaded and/or set out in the List of Issues, she had an arguable case of disability discrimination based on an alleged failure by the Respondent 'to make reasonable adjustments'. I decided that it would be a more useful use of the Tribunal time if I therefore announced my broad conclusions briefly and got on with the directions which, in my judgement, then needed to be made. I therefore announced my broad conclusion that I found the Claimant to be 'a disabled person' for the purposes of Section 6 Equality Act 2010 and also that I was, in principle, granting leave to the Claimant to add a claim of 'Failure to make reasonable adjustments' in respect of which I directed that the Claimant provide Further Particulars."
"Unfortunately, I may have picked up the wrong type from the desk and linked it to the file for these proceedings or there was some mix up in the transmission of the file plus tape to the Typing Section. By the time I discovered the mix up, when the file was referred back to me after the Christmas break, it impossible to locate my original tape and I therefore wrote to the parties on 9 January 2013 inviting the parties to prepare and agree a list of my main directions."
The Reasons then record that the order for particulars, dated 21 February 2013, was sent out.
"By 4 April 2013 I came to the conclusion that, in any event, there would have to be a further Hearing to decide whether or not the Claimant should be entitled to proceed with the quite extensive new/elaborated list of claims set out in the Scott Schedule. By that stage I had also come to the conclusion that it was difficult and unsatisfactory for me to provide reasons for my various conclusions as to the Claimant's disability and that the original time/jurisdiction issues which I had to determine had been potentially considerably extended by the new Scott Schedule."
"At the outset of the Hearing on 19 June 2013 Mr Rajgopaul vigorously argued, to put the matter shortly, that I should not be further involved in the proceedings. He argued that he was not and indeed could not ask for a Review since I had not provided any detailed reasons for my conclusions about the Claimant's disabled status.
12. I clarified that I had not felt it to be judicial for me to give reasons since there were some aspects of the case which I was unable to recall and, in particular, for example, that I had heard from both the Claimant and Mr Whitehead quite detailed evidence about the mechanics of the large machine called a 'Kardex' machine where the Claimant mainly worked. To my surprise, the Respondent's sole witness at earlier Hearing was not present. Whilst I accept that the letter of 19 April 2013 was quite short, I believe that it should have been obvious that I was giving the Respondent every opportunity to present any argument, and indeed any evidence both to persuade me that my general decision in principle should be reviewed and/or to present any arguments or evidence that the period of time should be limited. The Respondent's general position was set out in a letter of 13 June 2013 and Mr Rajgopaul commenced the proceedings on 19 June with these arguments.
13. I did not accept that this was a situation where I should recuse myself from the proceedings. This was not a case where I had given an 'indication' or demonstrated, I believe, anything which could be described as 'bias' and I did not accept that this was a case where the important doctrine of 'justice must be seen to be done' was applicable.
14. As I have set out in correspondence, and as I made clear on several occasions orally on 19 June 2013, I am extremely apologetic for what may have been my own lack of care in ensuring that the correct tape was linked to the file. Having said that, however, I believe that in any event there would have had to be a further quite extensive Hearing to enable the Respondents to challenge the wide scope of the Further Particulars set out in the Scott Schedule and for that matter for the Claimant to reply to any such challenge and for myself (probably) to give further rulings about the various allegations in the Scott Schedule.
15. I came to the conclusion that procedurally speaking I had issued an oral judgment on 6 December 2012 and that judgment was capable of being reviewed. It had, in any event, been reduced to writing in the correspondence of the parties. I had treated the Respondent's concerns as an application for a Review of that judgment. If I was wrong in that conclusion I treated the proceedings on 19 June 2013 as Review Hearing listed of my own motion. If, alternatively, the correct procedural situation is that there was not a 'judgment' capable of a review then I treated the Hearing on 19 June 2013 as a further adjourned Hearing of the 6 December Pre-Hearing Review. I announced my conclusions on the procedural issue and then called the Claimant to give evidence. I made it absolutely plain, in my oral reasons that morning, that if the Respondent felt disadvantaged by the absence of Mr Whitehead I would accede to any application for an adjournment or further Hearing to enable him to give evidence. No application for Mr Whitehead to be recalled was made."
The bias appeal
"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."
"....I had in my mind reached a firm conclusion that I was persuaded that the Claimant had a physical impairment because of her back condition which had lasted for at least a year..."
"31. Such an apprehension of a closed mind on the judge's part will only arise in reality where it is said that he has pre-judged the issue, and in consequence it is reasonably feared that he cannot or will not revisit the issue with an open mind.
(4) When Such Apparent Bias is Justifiably Apprehended
32. I accept that there will be some circumstances where such a fear would certainly be reasonable. If a judge has presided at a first instance trial and roundly concluded on the facts – after hearing disputed, perhaps hotly disputed, evidence – that one of the parties lacks all merit, everyone would accept that it would be unthinkable that he should sit on that party's appeal. He has committed himself to a view of the facts which he himself had the responsibility to decide."
"But the ordinary case is far from those instances. It is of the kind that has happened here: the judge in question has not himself had to resolve the case's factual merits, and has not expressed himself incontinently. All he has done is to conclude on the material before him that the result arrived at in the court below was correct. And he has done so in the knowledge that, at the option of the applicant, his view may be reconsidered at an oral hearing. In such a case is there a reasonable basis for supposing that he may not bring an open mind to bear on the substantive appeal if, after permission granted by another judge, he is a member of the court constituted to deal with it?"
Conclusion