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||BAILII case number:  UKEAT 1319_98_2806
||Appeal No. EAT/1319/98
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
||At the Tribunal
||On 28 June 1999
THE HONOURABLE MR JUSTICE CHARLES
MR A C BLYGHTON
MR K M YOUNG CBE
|MISS M HUSBANDS
Transcript of Proceedings
© Copyright 1999
|For the Appellant
MR JUSTICE CHARLES: This appeal comes before us pursuant to the preliminary hearing procedure operated by this Tribunal. The purpose of the hearing is for the Appellant to satisfy us that she has a reasonably arguable point of law.
- The parties to the appeal are a Miss Husbands and an organisation called Blackliners. The Originating Application made a number of claims which were dealt with in a decision of the Employment Tribunal. The Extended Reasons for that decision were sent to the parties on 11 August 1998.
- The Employment Tribunal heard the case over three days in July 1998. The Applicant appeared in person before the Employment Tribunal and she appears in person today.
- I pause to comment that she has made her points to us clearly today. She recognises that she does not have legal qualifications but it is our view that, notwithstanding that, she has made the points she wishes to raise on this appeal both in writing and orally clearly.
- The decision of the Employment Tribunal appears from the beginning of their Extended Reasons and is as follows:
"(1) the breach of contract complaint is dismissed on withdrawal by the Applicant;
(2 the Applicant's application for the Notice of Appearance to be struck out for failure by the Respondent to comply with the Tribunal's order of 9 June 1998 is refused;
(3) the unanimous decision of the Tribunal is:
(I) the Applicant was unfairly dismissed by the Respondent;
(ii) the Applicant's complaints of unlawful sex discrimination as set out in sub-paragraphs (i), (ii) and (iii) of paragraph 6 of the accompanying reasons were not presented to the tribunal before the end of the period of three months beginning when the respective acts complained of were done but in all the circumstances of the case it is considered just and equitable for the tribunal nevertheless to consider such out of time complaints;
(iii) the Respondent did not unlawfully discriminate against the Applicant on the ground of her sex;
(iv) the Applicant's complaint in respect of non-payment of pay is in part well-founded."
- As appears from that recital of the decision the Appellant succeeded in part, and failed in part, before the Employment Tribunal. In particular, it is to be noted that she succeeded on her claim for unfair dismissal.
- The subject matter of the appeal is the dismissal of the claim under the Sex Discrimination Act. There are two main areas in the appeal. The first is focused on the decision itself to dismiss that claim and the second is an allegation of bias or procedural unfairness.
- We say at this stage, and as we pointed out to Miss Husbands during the course of argument, that our jurisdiction is limited to identifying errors of law and to avoid any further suspense during the giving of this judgment, we have concluded she has not identified any points of law that are reasonably arguable on this appeal. This, of course, does not mean that she does not believe that the Tribunal made errors of fact and that she feels aggrieved by their decision. The jurisdiction of this Tribunal is limited and it is not open to us to go over the factual elements of the dispute.
- Returning to the appeal focused at the dismissal of the claim for sex discrimination, in that context the Employment Tribunal correctly identified and had regard to the decision in King v Great Britain China Centre  ICR 516. The approach in that case has been approved by the House of Lords in Glasgow City Counsel v Zafar  IRLR 36. These cases demonstrate that the fact that an employee has been treated badly or unfairly does not mean that that has taken place by reason of the employee's sex or the employee's race. They also show that a Tribunal can infer discrimination. However, they make clear that a Tribunal does not have to infer discrimination. The issue before the Tribunal is whether, on the primary facts that it finds, it is right for them to make the inference of discrimination if they have not found, as a primary fact, that there was discrimination. Both these matters are very much matters for the Employment Tribunal.
- In our view the Extended Reasons show that the Employment Tribunal took this course which, in our judgment, is the correct course in law and concluded that they should not make a finding of discrimination on the basis of the Applicant's sex and therefore dismissed her claim under the Sex Discrimination Act.
- As we have said, the Appellant disagrees with that finding and is aggrieved by that conclusion but, in our judgment, she has failed to demonstrate that she has a reasonably arguable point of law in support of her appeal. In essence, her appeal is one against the findings of fact. She says that no reasonable Tribunal, considering the weight of evidence that she produced (and she points out that that was corroborated evidence), could have reached the findings that they did. She therefore says that the Tribunal was perverse.
- That is a very high test in law to satisfy and, in our judgment, the Appellant's problems, as demonstrated from the Extended Reasons and indeed from her Notice of Appeal and oral submissions, are that there was a considerable amount of evidence upon which the Tribunal could reach their conclusions and her complaint is that they preferred the evidence given on behalf of the Respondent concerning motive to her evidence. In this context it must not be forgotten that in large measure the Appellant's evidence was accepted and the Respondent's evidence as to her dismissal and it being fair was rejected by the Tribunal. In this context during her oral submissions to us this morning the Appellant emphasised a point that it is her assertion that a false document relating to a plan or proposal dated 17 January was placed before the Tribunal. This document, as we understand it, related to restructuring. This document, as we read the Extended Reasons, went primarily to the case as to unfair dismissal although, of course, it would have had some relevance to the case based on sex discrimination.
- We repeat that the explanations offered by the Respondent relating to the fairness of the dismissal were rejected by the Tribunal and the Appellant won on that point. In our judgment that deals with the Appellant's assertion that the Extended Reasons do not refer to the submission relating to what she alleges to be a false document. The fact that there was such a report is mentioned in the Extended Reasons.
- Turning to her grounds in respect of her appeal against the finding dismissing her claim under the Sex Discrimination Act, these were helpfully set out in her Notice of Appeal. We do not propose to go through each one of them. In our judgment the matter can be dealt with by looking at firstly, paragraph 21 of the Extended Reasons which read as follows:
"As regards the sex discrimination complaint, the Applicant alleged there was a male culture following the employment of Mr Blake and the organisation became male dominated. Men were given preferential treatment as identified in the cases of Anup Karia and Alex Darko and with the appointment of Patrick Salami as Office Manager."
- Reference should then also be made to paragraph 33 of the Extended Reasons which in sub-paragraphs (i) to (ii) deal with specific allegations of discrimination and paragraphs (iii) and (iv) are in the following terms:
"(iii) the tribunal accepts that the Applicant asked for training at the meeting. The tribunal notes that there is no actual comparator in this case. The tribunal is not satisfied that a man in the same situation would have been treated any differently.
(iv) the tribunal cannot ascertain in this complaint any like for like situation. Mr Salami was certainly not in a comparable situation. The tribunal does not find any move towards a male dominated organisation. The dismissal had nothing to do with the Applicant's gender."
And then that paragraph ends with this statement:
"For all these reasons the tribunal finds that the Applicant was not discriminated against on the grounds of her sex."
- When one turns to the Appellant's Notice of Appeal she gives a number of examples relating to comparators and the acts of discrimination which the Tribunal considered out of time. The thrust of her complaint is that her evidence on those points is not dealt with with sufficient fullness and clarity in the Extended Reasons. The approach that we have to adopt to Extended Reasons is that set out in Meek v Birmingham City Council and, in our judgment, the Extended Reasons clearly pass that test, which is in a nutshell, that the parties should know why they have won or lost. The paragraphs we have cited show that the Tribunal took into account the essential points in the Appellant's case and rejected them essentially on the facts.
- Further, in her Notice of Appeal, she raises a point concerning a claim of victimisation under section 4 of the Sex Discrimination Act. This claim was not raised below and it is therefore not open to us to deal with it: see Jones v Governing Body of Burdett Couttes School  IRLR 521. However, notwithstanding that jurisdictional hurdle, looking at the particulars she gives of that claim (and this is not criticism of the Appellant) she does not, with clarity, identify a protected act within that section and effectively the assertions of victimisation are a repeat of her allegations relating to her dismissal and the motives that underlie it. Those allegations were dealt with fully by the Tribunal in their respective findings that she had been unfairly dismissed but that the reason, or motive for her dismissal, was not one of discrimination having regard to her sex.
- We now turn to the allegation of bias and procedural unfairness. The Appellant raises this in a short paragraph at the end of her Notice of Appeal and supports it by a short affidavit. The relevant test for this Tribunal in respect of allegations of bias or procedural unfairness relating to the conduct of members of an Employment Tribunal at a hearing is to be found in Peter Simper & Co Ltd v Cooke  IRLR 19. Paragraph 10 of the judgment in that case is in the following terms:
"We accept that there is jurisdiction for a Tribunal to discontinue a hearing and order a re-hearing (Charman v Palmers Scaffolding Ltd  ICR 335 and Automobile Proprietary Ltd v Healy  ICR 809). But those cases also make it clear that that power should be exercised most sparingly and only for very good reason; a bare allegation of bias is not sufficient. We take it to be axiomatic that justice before a Tribunal must not only be done but also be manifestly seen to be done. That applies as much in our view to a Tribunal such as the Industrial Tribunal as it does to a formal court of law. Not only must there be no bias on the part of the Tribunal but also the Tribunal must not give the appearance of bias. Where there is an allegation of bias based on 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. That impression may be given by the appearance of a closed mind against a party on a matter which calls for decision by the Tribunal when that party has not yet presented all his evidence relevant to the point or had the opportunity of addressing the Tribunal on that evidence."
- As is apparent that case is directed specifically to this jurisdiction. In our judgment the objective approach set out in the Peter Simper case accords with the more recent authority in the House of Lords regarding issues concerning bias contained in R v Gough  AC 646 and Regina v Bowstreet Metropolitan Stipendiary Magistrates ex-parte Pinochet Ugarte No.2  2 WLR 272. In this Tribunal more recently in a case called Brooks Bank v Buckingham County Council EAT/504/97, a case concerning apparent bias, this Tribunal adopted the approach of Lord Gough in R v Gough  AC 647 when he said this:
"... the test to be applied in all cases of apparent bias was the same, whether concerning justices, members of inferior tribunals, arbitrators or jurors, and, in cases involving jurors, whether being applied by the judge during the trial or by the Court of Appeal when considering the matter on appeal, namely, whether, in all the circumstances of the case, there appeared to be a real danger of bias, concerning the member of the tribunal in question so that justice required that the decision should not stand."
- In his speech in the Pinochet case, at  2 WLR 284 E to G Lord Browne-Wilkinson raises, but leaves open, the point whether that test may need to be reviewed in the light of subsequent decisions. The possible review is to determine whether that test should be modified to make the relevant test the question whether the events in question give rise to a reasonable apprehension, or suspicion, on the part of a fair-minded and informed member of the public that the judge was not impartial.
- In our view it is not easy to identify in the abstract the distinctions between an objective test based on the appearance of a real danger of bias and one based on reasonable apprehension or suspicion of bias, save in the general sense that the former is a more stringent and difficult test to satisfy for a person alleging apparent bias.
- In this case we have adopted the course of considering first what is, in our view, the less stringent test ie one based on reasonable apprehension or suspicion of bias and have concluded on that basis that the Appellant has failed to establish that she has a reasonably arguable case.
- It follows, in our view, that she also fails to establish that she has a reasonably arguable case on what we regard to be the more stringent test based on the establishment of a real danger of bias. In this context it is correct to refer to her affidavit the most relevant paragraphs of which are in the following terms:
"I believe that I was the victim of unfair and biased treatment by the Tribunal at this Hearing. I feel that valid, important, corroborated evidence that I provided, in support of my case, was totally ignored. Comments made by the Chairman at the Hearing of having 'stopped taking notes' and constant intimations that my questions were 'irrelevant' whilst I questioned the Respondent, instilled little confidence in me that my case was being taken seriously. It appeared that the Chairman's mind had been made up, almost from the Hearing's commencement and that despite, what I strongly believe was serious cause for doubt as to the credibility of the Respondent witnesses, I had absolutely no chance of winning my claim of discrimination on the ground of my sex. Further, I believe that the fact that it was found that I was unfairly dismissed, was thus, simply because the Tribunal had no choice.
My concern extends also to the unfounded slur, on my character, in the Extended Reasons, i.e. of a 'prickly' and 'adversarial' nature. I do not believe I demonstrated at any time during the hearing any such behaviour to warrant the Tribunal's mention of this, as fact. This is not only distressing, it is grossly unfair and further adds to my belief that I was treated inappropriately.
Mr Dave Simpson of 154 Landells Road, East Dulwich, London SE22 4PN, accompanied me to the Hearing. He has confirmed that he is willing to, if necessary, provide to the EAT, a written submission, on the legitimacy of my claim of bias/unfair treatment."
In response the Chairman of the Employment Tribunal made the following comments:
"1. I have been informed of an appeal by Miss Husbands and have also seen the Affidavit by Miss Husbands in this appeal which Affidavit is dated the 4 December 1998. She makes reference to a hearing from the 13 July to 15 July 1998 at which hearing I was the Chairman. However, I should state at the outset that it is now nearly seven months since the hearing and I have no recollection of the hearing beyond some vague recollections after reading my notes.
2. The Applicant makes allegations of unfair and biased treatment by the Tribunal at the hearing. For myself I can state that I approach each case without prejudice or bias and without having made up my mind from reading the papers. I have been a lawyer and a Tribunal Chairman long enough to know that there are always two sides to every story. I never make up my mind without having heard both versions.
3. I have had no cause to doubt the impartiality of the other two members of the Tribunal who sat with me on this case. I can see from my notes that both of those members played a full part in ascertaining the facts and in reaching the conclusion.
4. The Applicant also makes mention of comments having been made by me. If a party is introducing apparently irrelevant evidence or asking apparently irrelevant questions I will query its relevance and prevent any evidence or questioning which is considered to be irrelevant. It is possible that if a party persists in asking irrelevant questions or introducing irrelevant evidence or merely goes over the ground again then I may well inform the relevant party that I do not make a note of such irrelevant material/repetition. It is my practice at the outset of every Tribunal hearing to establish the issues and if need be I will explain to a party, especially an unrepresented party, what is relevant and demonstrate how matters are irrelevant. I do not normally make a note of interruptions to bring a party back from going off on a tangent but I see that in this case I have noted that I queried with the Applicant whether part of her evidence-in-chief was relevant on the afternoon of the first day.
5. The hearing took three days and the decision was reserved at the end of the evidence and submissions on the third day. The Applicant commenced giving her evidence at 12.15 pm on the first day and her evidence-in-chief took the remainder of that day. She was cross-examined on the second day until 12.10 pm after which I questioned her for 85 minutes and another member of the Tribunal questioned the Applicant at length. I would comment that it is extremely unusual for me or a Tribunal member to question a party or witness at length. I can only conclude that we were endeavouring to understand the Applicant's case.
6. The Respondent called two witnesses. The Applicant cross-examined Mrs Hill for over 30 minutes and Mr Blake for 45 minutes. I have no note of interrupting such cross-examination but that does not mean to say that I did not do so. Both of the Respondent's witnesses were questioned at length by the Tribunal members again something which is unusual and indicating to me a difficulty in understanding the case and a desire to understand fully all of the evidence.
7. The reference in the extended reasons to 'prickly' and 'adversarial' is as to how Mr Blake described the Applicant and is the explanation for the Applicant being 'sent to Coventry'. It was Mr Blake's perception of the Applicant during her employment with the Respondent. The Tribunal had the benefit of seeing both Mr Blake and Miss Husbands and came to the conclusion that Mr Blake did genuinely have a difficult work relationship with the Applicant.
8. I regret I am unable top assist further in this matter."
- In addition to the points raised in those documents, before us the Appellant with (if we may say so) appropriate delicacy raised an additional point that she felt that one of the Tribunal members had not appeared well during the course of the hearing. She had not raised this in writing because she did not feel it appropriate to do so. As to that allegation, in our judgment, it goes nowhere near demonstrating that that member of the Tribunal was not taking an active part in the proceedings, albeit that, for present purposes, we accept the Appellant's assertion that that member was less active in asking questions than the other members of the Tribunal.
- So far as the other allegations of bias are concerned, the point raised in the penultimate paragraph of her affidavit concerning the reference in the Extended Reasons to "prickly and adversarial nature" is based, in our judgment, on a misreading of the Extended Reasons. They do not contain such a slur and we therefore agree with paragraph 7 of the Chairman's comments.
- The other points she raises, judged by an objective test, demonstrate simply that over a three-day hearing the Tribunal did take an active part in the hearing to seek to ascertain both the respective cases of the parties and the evidence that they wished to put before the Tribunal. This is the function of a Tribunal. Our conclusion (and, in our judgment, this came out clearly in the oral submissions of the Applicant) is that the allegations she makes to bias and procedural unfairness were made with proper reticence and are founded in truth on her conviction that a reasonable Employment Tribunal would not have made the findings of fact that they did and we have already dealt with that aspect of the appeal.
- For the reasons we have given this appeal is therefore dismissed.
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