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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Husbands v Blackliners [1999] UKEAT 1319_98_2806 (28 June 1999) URL: https://www.bailii.org/uk/cases/UKEAT/1999/1319_98_2806.html Cite as: [1999] UKEAT 1319_98_2806 |
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At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE CHARLES
MR A C BLYGHTON
MR K M YOUNG CBE
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
PRELIMINARY HEARING
For the Appellant | IN PERSON |
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.
"(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 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."
"(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."
"We accept that there is jurisdiction for a Tribunal to discontinue a hearing and order a re-hearing (Charman v Palmers Scaffolding Ltd [1970] ICR 335 and Automobile Proprietary Ltd v Healy [1979] 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."
"... 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."
"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."