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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Jiad v. BBC World Service & Ors [2000] UKEAT 1007_99_0102 (1 February 2000) URL: https://www.bailii.org/uk/cases/UKEAT/2000/1007_99_0102.html Cite as: [2000] UKEAT 1007_99_102, [2000] UKEAT 1007_99_0102 |
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At the Tribunal | |
On 12 January 2000 | |
Before
THE HONOURABLE MR JUSTICE CHARLES
MR A C BLYGHTON
MR J R CROSBY
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | IN PERSON |
MR JUSTICE CHARLES: The parties to this appeal are Dr A Jiad (the Appellant) and BBC World Service & Others (the Respondents).
Conclusion
Reasonably arguable points of law
(a) The Employment Tribunal failed to properly consider and further or alternatively to explain their reasoning in respect of the claim for victimisation.
(b) The Employment Tribunal misstated the test to be applied in respect of the claim for victimisation. As to this we have some sympathy for the Employment Tribunal because they heard this case shortly before the speeches of the House of Lords were delivered in the case of Nagarajan v London Regional Transport. Those speeches were delivered on 15 July 1999. We believe that a report of that decision appeared in the Times on 19 July 1999. It follows that the speeches and the report in the Times newspaper occurred after the conclusion of the hearing before the Employment Tribunal but before they gave their Extended Reasons. This ground of appeal is raised expressly in the Notice of Appeal. We indicate that in our judgment it is open to the Respondents (if so advised) to advance arguments to the effect that the Employment Tribunal applied the law as it existed at the time of the hearing before them.
(c) The Employment Tribunal failed to properly apply the correct legal principles and approach and thus failed to deal properly with the claim for direct racial discrimination. And in particular:
(i) failed to make specific and adequate findings as to the less favourable treatment alleged by the Appellant, and in this context failed to make any, or sufficient proper findings by reference to (or in connection with) the comparators put forward by the Appellant,
(ii) (if appropriate) failed to go on to deal, or to deal properly, with the question in respect of each finding of less favourable treatment whether that less favourable treatment was on racial grounds, and in this context failed to properly set out and explain by reference to the primary facts found why they did not draw the inference that each instance of less favourable treatment was on racial grounds,
(iii) asked themselves the wrong question in respect of some of the issues (eg acting up and duty trips and
(iv) more generally failed to make adequate findings and to provide adequate reasons to demonstrate to the parties why they respectively won and lost.
(see for example Glasgow City Council v Zafar [1998] ICR 120 at 123H to 126C, and Martins v Marks & Spencer Plc [1998] IRLR 326 paragraphs 14 & 50, Martin v MBS Ltd [1983] ICR 511 and Levy v Marrable & Co Ltd [1983] ICR 511 and Quershi v Victoria Univ EAT 484/95).
Bias (or procedural unfairness)
The Law
"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."
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 [1993] AC 646 and R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No.2) [1999] 2 WLR 272. In this Tribunal more recently in a case called Brooks Bank v Buckinghamshire County Council EAT/504/97 a case concerning apparent bias, this Tribunal adopted the approach of Lord Goff in R v Gough [1993] AC 646 which is referred to in the head note at 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 [1999] 2 WLR 284 E/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.
The Appellant's allegations of bias
Head (1). Conduct during the main hearing which in general terms covers subparagraphs 1(a) and (c) to (s) of his Skeleton Argument.
Head (2). Conduct during the period between the time that the Appellant brought his claim and the main hearing which is asserted by paragraph 1(t) of his Skeleton Argument.
Head (3). Comments in the Extended Reasons which is asserted by paragraph 1(b) of the Skeleton Argument, and
Head (4). Conduct after the hearing which is asserted by paragraph 1(u) and (v) of his Skeleton Argument.
Head (1)
"The chairman was not focussing or taking notes on vital evidence and cross examination and publicly making the statement: 'I was not listening to him (the Appellant)'. I had in several occasions to repeat points to catch his attention."
could in isolation be treated as demonstrating bias or procedural unfairness. However, in our judgment taken in the context of what was a lengthy hearing which it is common ground at times became tense and possibly quite heated, that a reasonable third party observer would not regard this ground as establishing bias or procedural unfairness. Rather, in our judgment, he would see it as a part of the emotion and interplay of litigation and a demonstration of the fact that Tribunal members are human. In this context it is also, in our judgment, important to remember that the Appellant is plainly an intelligent man and someone who is more than capable of getting his points over. Indeed, the ground itself recognises that he was, when necessary, able to repeat himself and get his points over. Having heard the Appellant making submissions to us we are confident that he was able to get his points over and was not diverted from doing so by any conduct of the Tribunal.
Head (2)
Head (3)
Head (4)