Metroline Travel Ltd v Cowan [1993] UKEAT 249_91_0411 (4 November 1993)

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Cite as: [1993] UKEAT 249_91_0411

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    BAILII case number: [1993] UKEAT 249_91_0411

    Appeal No. EAT/249/91



    At the Tribunal

    On 4th November 1993







    Transcript of Proceedings





    For the Appellant Mr D Wagstaff


    Legal Services

    London Transport

    55 The Broadway


    For the Respondents Miss L Moorman

    Free Representation Unit

    49/51 Bedford Row



    THE HONOURABLE LORD COULSFIELD The Respondent in this case was employed from 1975 by London Transport Executive, first as a bus driver and later as a driver-operator. As a result of changes in the organisation of London Transport, he came to be employed by the Appellants. In 1989 the Respondent became unwell and was off work for a time. Subsequently there were a number of attempts to make arrangements by which he might return to work, either as a driver or in a less demanding post, for purposes of rehabilitation. Ultimately, however, he was dismissed on 30th March 1990 on the ground of ill-health. He made an application to an Industrial Tribunal and by a Decision dated 10th April 1991 the North London Tribunal, under the Chairmanship of Mr de Saxe, held that he had been unfairly dismissed. The principal reason for that decision was that, although the reason for the dismissal was incapability, the employers had not acted reasonably in treating that reason as a reason for dismissing the Applicant. One of the main factors founded on by the Industrial Tribunal was failure on the part of the employers to obtain an up-to-date medical opinion before dismissing the Respondent. For the purposes of the present case, it is not necessary for us to enter into the findings of the Industrial Tribunal in any more detail.

    One of the members of the Industrial Tribunal which heard the Respondent's complaint had been employed by London Transport Executive as a bus driver from August 1957. In 1984, responsibility for transport in London was transferred to London Regional Transport, an organisation which was created in that year. London Buses Ltd was incorporated in 1985 and is a subsidiary of London Regional Transport and the Appellants in the present case, who were incorporated in 1989, are also a subsidiary of London Buses Ltd. Before July 1977, the member was absent from work for long periods because of ill-health and was ultimately dismissed in July 1977. He made an application to an Industrial Tribunal on the ground of unfair dismissal and in August 1978, on the day before his application was set down for hearing, his claim was settled on terms that he would be reinstated. He also received compensation. From 1978 to 1985 the member was employed as a driver-operator. As a result of a different medical condition, however, it became unsafe for him to drive a public service vehicle and he was dismissed on the grounds of ill-health in 1985. Since that date he has not been employed by London Regional Transport or any of its subsidiaries.

    The present appeal was taken against the Decision of the Industrial Tribunal of 10th April 1991 on two grounds. The first ground related to an alleged error of law on the part of the Industrial Tribunal in misdirecting itself as to the proper test in considering whether the dismissal had been unfair. We heard no argument upon this ground of appeal, it being agreed between the parties that the second ground should be heard and determined first. The second ground was that the constitution of the Industrial Tribunal amounted to a breach of the rules of natural justice in view of the circumstances in connection with the member's previous employment and the proceedings which he had brought against London Transport or one of the bodies connected therewith. The Appellants maintained that, at the hearing of the case, the member had not declared his interest and that, since he was not personally known to the representatives of the Appellants, they had had no opportunity to object to his sitting, as, they maintain, they would have done, had they known of the position. We have had the benefit of considering Affidavits lodged on behalf of the Appellants, including an Affidavit by the member, and we have also had the benefit of comments by the Chairman of the Industrial Tribunal. It is clear that the member did not in fact declare his previous connection with London Transport bus operations. After the Industrial Tribunal hearing was over, the member did mention to the Chairman and the other member that he had at one time been employed by London Transport, but he did not explain the circumstances in which his employment came to an end, and it did not occur to the Chairman that this was a matter which should have been mentioned to the parties. The Chairman emphasises that the member gave the case careful and judicial consideration and showed no evidence of bias and he also points out that the decision was unanimous.

    The rules of law which fall to be applied in cases where there is a possibility of bias on the part of a member of a tribunal such as an Industrial Tribunal have recently been reviewed by the House of Lords in R. v. Gough [1993] 2 ALL ER 724. We were referred to some earlier authorities as illustrations of particular circumstances in which allegations of bias had been made and determined, but we do not think that any of those cases bore a close resemblance to the present, and it seems to us that we must dispose of the present case on the principles explained in R. v. Gough (supra). It is clear that the House of Lords examined a large number of authorities, not all of which were easily reconcilable, and endeavoured to extract from them principles which could relatively easily be applied in future cases. There are two passages in the speech of Lord Goff to which we particularly refer. In the first passage Lord Goff said at p.728:

    "A layman might well wonder why the function of a court in cases such as these should not simply to conduct an inquiry into the question whether the tribunal was in fact biased. After all it is alleged that, for example, a justice or a juryman was biased, ie that he was motivated by a desire unfairly to favour one side or to disfavour the other. Why does the court not simply decide whether that was in fact the case? The answer, as always, is that it is more complicated than that. First of all, there are difficulties about exploring the actual state of mind of a justice or juryman. In the case of both, such an inquiry has been thought to be undesirable; and, in the case of juryman in particular there has long been an inhibition against, so to speak, entering the jury room and finding out what any particular juryman actually thought at the time of decision. But there is also the simple fact that bias is such an insidious thing that, even though a person may in good faith believe that he was acting impartially, his mind may unconsciously be affected by bias - a point stressed by Devlin LJ in R v. Barnsley County Borough Licensing Justices, ex parte Barnsley and District Licensed Victuallers Association [1960] 2 All ER 703 at 715, [1960] 2 QB 167 at 187. In any event, there is an overriding public interest that there should be confidence in the integrity of the administration of justice, which is always associated with the statement of Lord Hewart CJ in R v. Sussex Justices, ex parte McCarthy [1924] 1 KB 256 at 259 ... that it is -

    `of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.'

    I shall return to that case in a moment, for one of my tasks is to place the actual decision in that case in its proper context. At all events, the approach of the law has been (save on the very rare occasion where actual bias is proved) to look at the relevant circumstances and to consider whether there is such a degree of possibility of bias that the decision in question should not be allowed to stand."

    In the second passage (at p.737) Lord Goff said:

    "In conclusion, I wish to express my understanding of the law as follows. I think it possible, and desirable, that the same test should be applicable in all cases of apparent bias, whether concerned with justices or members of other inferior tribunals, or with jurors, or with arbitrators. Likewise, I consider that, in cases concerned with jurors, the same test should be applied by a judge to whose attention the possibility of bias on the part of a juror has been drawn in the course of trial, and by the Court of Appeal when it considers such a question on appeal. Furthermore, I think it unnecessary, in formulating the appropriate test, to require that the court should look at the matter through the eyes of a reasonable man, because the court in cases such as these personifies the reasonable man; and in any event the court has first to ascertain the relevant circumstances from the available evidence, knowledge of which would not necessarily be available to an observer in court at the relevant time. Finally, for the avoidance of doubt, I prefer to state the test in terms of real danger rather than real likelihood, to ensure that the court is thinking in terms of possibility rather than probability of bias. Accordingly, having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour or disfavour, the case of a party to the issue under consideration by him; though, in a case concerned with bias on the part of magistrates' clerk, the court should go on to consider whether the clerk has been invited to give the magistrates advice and, if so, whether it should infer that there was a real danger of the clerk's bias having infected the views of the magistrates adversely to the applicant."

    That speech was concurred in by the other members of the House of Lords. In particular, Lord Woolf said (at p.740):

    "It is because the court in the majority of cases does not inquire whether actual bias exists that the maxim that justice must not only be done but be seen to be done applies. When considering whether there is a real danger of injustice, the court gives effect to the maxim, but does so by examining all the material available and giving its conclusion on that material. If the court having done so is satisfied that there is no danger of the alleged bias having created injustice, then the application to quash the decision should be dismissed. ..."

    Before that decision, one of the approaches frequently adopted in cases such as the present was to ask what impression would have been formed by a reasonable observer of the proceedings. It is clear that we should no longer approach the question in that way, and that we must ask ourselves whether there was a real risk of bias, in the sense explained by Lord Goff. It was suggested to us that Lord Woolf had placed a somewhat different emphasis upon the question by referring to the possibility of injustice but it does not seem to us that there is any real difference between what Lord Goff said and what Lord Woolf said. Any injustice which might be involved would be one which arose from a "real risk" of a biased decision, and in our view both their Lordships clearly intended to set out the same test.

    In so far as the present case is concerned, the Appellants argued that given the fact that the Tribunal member had been himself involved not only as an employee with a London Transport bus operator and had not only been dismissed but had been specifically dismissed on the ground of ill-health and had taken proceedings on that ground, a real risk of bias must be held to exist. For the Respondent it was strongly urged that in view of the lapse of time since the dismissal of the member and the Industrial Tribunal proceedings at his instance the fact that he had had no connection with the Appellants or any of their associated companies for at least six years; and that he had no actual interest in the proceedings, it could not be said that there was a real risk of bias. It was argued that the case could properly be compared with one in which a Tribunal member or a magistrate approaches a case with some knowledge of the type of organisation or type of circumstance involved in it but without any direct personal interest in the actual case.

    We have taken full account of the observations of the Chairman and in particular to the observation that the discussion of the case was conducted without any bias and that the decision arrived at was unanimous. The difficulty in such a case as this is posed by the insidious nature of bias, as described by Lord Goff. This is not a case in which the Tribunal member merely had some knowledge or experience of the particular field or the particular type of case. This is one in which the Tribunal member had himself been involved in a dispute with a predecessor company of the Appellants which was very closely parallel to the dispute upon which he was called upon to adjudicate. In view of the lapse of time, this can properly be regarded as a narrow case. Lord Goff's judgment requires us to draw a line between cases in which there is and cases in which there is not a real danger of bias. We have come to the conclusion that this case falls, unfortunately, on the wrong side of the line. That is not to say that there was, in this case, any bias, or even, as Lord Goff explained, that there was a probability of bias: merely, that there was a danger of bias. Accordingly, it is necessary for us, notwithstanding the lapse of time and the unfortunate consequences for the Respondent, to allow the appeal and to remit the case for determination by another Industrial Tribunal.

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