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||BAILII case number:  UKEAT 1007_99_0102
||Appeal No. EAT/1007/99
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
||At the Tribunal
||On 12 January 2000
||Judgment delivered on 1 February 2000
THE HONOURABLE MR JUSTICE CHARLES
MR A C BLYGHTON
MR J R CROSBY
|DR A JIAD
|BBC WORLD SERVICE & OTHERS
Transcript of Proceedings
© Copyright 2000
|For the Appellant
MR JUSTICE CHARLES: The parties to this appeal are Dr A Jiad (the Appellant) and BBC World Service & Others (the Respondents).
- The appeal came before us for Preliminary Hearing on 12 January 2000. At the end of that hearing we indicated what we would do and that we would give our reasons in a judgment to be handed down. The hearing lasted considerably longer than the one hour that is set for the disposal of Preliminary Hearings.
- The appeal is against a decision of an Employment Tribunal sitting at London (North), the Extended Reasons for which were sent to the parties on 27 July 1999.
- In box 1 of his IT1 the Appellant describes his claim as one for "Racial Discrimination, victimisation, stifling career, denying facility and service". In a document dated 21 January 1999 the Appellant provided Further and Better Particulars of his claim. Further, by a letter dated 25 March 1999 the Appellant set out what he alleged were the issues in the case. The Appellant told us during his submissions that it was accepted before the Employment Tribunal that this letter identified the issues that were before the Employment Tribunal.
- We pause briefly to comment that our view is that no claim for indirect racial discrimination is raised in the IT1, the Further and Better Particulars or this letter. This was also the understanding of the Employment Tribunal because they do not deal with any such claim. At times during his submissions to us Dr Jiad made submissions that related to a claim for indirect racial discrimination but (in our judgment correctly) his Notice of Appeal does not include a ground that the Employment Tribunal failed to deal with such a claim.
- The Notice of Appeal is a lengthy document. It is 27 pages long. Further, it is supported by an affidavit sworn by Dr Jiad on 4 October 1999. We were also shown an affidavit sworn by a Mr Hawwari on 7 January 2000. The Chairman and the Respondents have commented on the affidavit of the Appellant (Dr Jiad). The Chairman's comments are quite brief and are contained in a letter dated November 1999 and received by this Tribunal on 3 November 1999. The comments of the Respondents are contained in a letter from the Litigation Department of the BBC dated 18 November 1999. These comments are fairly lengthy and comprehensive. They demonstrate that there is a dispute between the parties as to the assertions made by the Appellant in his affidavit. It is also apparent that the Chairman of the Tribunal disputes allegations contained in the Appellant's affidavit. Such allegations relate primarily to the Appellant's allegation of bias (or procedural unfairness).
- The Appellant also provided a lengthy Skeleton Argument which essentially followed the Notice of Appeal but expanded on certain paragraphs in that Notice.
- In that Skeleton the Appellant deals with his appeal under two main headings, namely: (A) bias, and (B) points of law (perverse, misdirection and misapplication).
- At the end of the oral hearing we indicated that we were of the view that the appeal raised arguable points of law under the Appellant's heading (B) and therefore that the grounds of appeal relating to that heading should go to a full hearing.
- We further indicated that we would consider further ground (A), namely bias and deal with that in this judgment. In our judgment, for the reasons set out below, the Appellant has no reasonably arguable case on bias (or procedural unfairness) and therefore we strike out the introduction to paragraph 4 of his Notice of Appeal and direct that he should not be allowed to advance arguments based on bias (or procedural unfairness) at the full hearing. We have not struck out the Particulars under paragraph 4, namely subparagraphs (A) to (T) because the Appellant relies on those Particulars not only in respect of his claim for bias (or procedural unfairness) but also in respect of his Further and Alternative grounds of appeal and, in particular, his argument that findings made by the Employment Tribunal were perverse in the sense that either (i) there was no evidence to support them or (ii) they were contrary to the documentary evidence and were unsupported by any, or any reliable, oral evidence.
- At the end of the hearing we attempted to make it clear to the Appellant that if (as is the case) we were to decide that his ground of appeal that there was bias (or procedural unfairness) should be struck out (and therefore he should not be allowed to pursue any such arguments at the full hearing) he should carefully consider the extent to which it was appropriate or necessary for him to pursue arguments based on perversity and thereby to embark upon a close analysis of the documentary and oral evidence.
- We also directed that there should be a Directions Hearing which would deal with (amongst other things) (i) what, if any, notes of evidence would be required, and (ii) further definition of the issues to be determined on the full appeal and the order in which such issues should be considered.
- We also made the point to the Appellant that nothing we have said or have decided should be treated as an effective argument against an order for costs being made against him if the Tribunal that hears the full appeal concludes (with the benefit of a closer analysis of the documents and submissions from the Respondents) that the Appellant has acted unreasonably in making points on this appeal as to the underlying facts of this case.
Reasonably arguable points of law
- Under this heading we do not propose to deal with each of the points as made by the Appellant in his Notice of Appeal and Skeleton Argument. Rather we propose to identify main points which we consider to be reasonably arguable and then explain briefly why, having regard to that conclusion we have decided to allow the Notice of Appeal as drafted with the exclusion of the allegation of bias (or procedural unfairness) to proceed to a full hearing.
- We consider the following to be reasonably arguable:
(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  ICR 120 at 123H to 126C, and Martins v Marks & Spencer Plc  IRLR 326 paragraphs 14 & 50, Martin v MBS Ltd  ICR 511 and Levy v Marrable & Co Ltd  ICR 511 and Quershi v Victoria Univ EAT 484/95).
- As we understand the Practice Direction and Guidance Notes relating to Preliminary Hearings their essential purpose is to identify whether a reasonably arguable point of law is raised on an appeal so that this Tribunal has jurisdiction to hear the appeal.
- Further, on a Preliminary Hearing this Tribunal often takes the pragmatic course of considering whether certain grounds set out in a Notice of Appeal should be struck out on the basis that they raise no reasonably arguable point of law. It seems to us that in a case where an appeal raises a reasonably arguable point of law in deciding whether to go on at the preliminary hearing stage and deal in detail with each and every point raised in a Notice of Appeal this Tribunal must have regard to the practical reality of dealing with such points in the time available to it, and on the information available to it, at a Preliminary Hearing.
- Part of the purpose of a Preliminary Hearing is to save time and expense on a Full Hearing. However, in some cases (and in our judgment this is one of them) some of the detail points raised by the Appellant in his Notice of Appeal can be dealt with more quickly and efficiently with the benefit of submission from the Respondents. This is particularly the case in respect of the grounds of appeal based on perversity and thus, for example, an assertion that findings of fact are not supported by any evidence, or are contrary to the documentary evidence and not supported by any or any reliable oral evidence.
- On his points as to perversity we have heard the Appellant briefly. On the limited information available to us it appeared that it was not practical for us to deal with these points on this Preliminary Hearing. To some extent they are also linked to the points which we have identified above and which we consider to raise reasonably arguable points of law. This does not mean (as we have also already pointed out) that Dr Jiad would have to pursue all his points on perversity to make good the above points which we consider to be reasonably arguable. Indeed his first point can be said to be that if the Extended Reasons are read in isolation (or against the background of the common ground that exists as to the issue and evidence put before the Employment Tribunal) they show errors of law as to the approach adopted by the Employment Tribunal and fall short of what is required.
- In all the circumstances we concluded that the sensible and practical course for us to take was the one we have already indicated. This leaves it open to the Appellant to argue all points raised in his Notice of Appeal and expanded in his Skeleton Argument, save for those that the appeal should be allowed on the ground that the Employment Tribunal were biased or that there was procedural unfairness.
Bias (or procedural unfairness)
- We heard the Appellant at some length in respect of this ground of appeal.
- In our judgment it is still appropriate for this Tribunal when considering allegations of bias or procedural unfairness relating to the conduct of members of an Employment Tribunal at a hearing to have regard to, and to apply, the approach as set out 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 R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No.2)  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  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  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.
- 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.
- The Court of Appeal have recently heard a selection of cases raising points relating to bias based on the interest, or position, of a judge or a tribunal member (see the Times 9 November 1999, one of the cases being called Locabail UK Ltd v Bayfield Properties Ltd). As we understand it those cases were at least in part triggered by the Pinochet case. Such cases were not dealing with bias or apparent bias based on conduct during the proceedings but, as we understand it, in those cases the Court of Appeal favoured the test and approach set out in the Gough case.
- However, in this case we have adopted the course of considering first what is, in our view, the less stringent test from the point of view of the Appellant (ie one based on reasonable apprehension or suspicion of bias) and have concluded on that basis that the Appellant has failed to establish that he has a reasonably arguable case.
- It follows, in our view, that the Appellant has also failed to establish that he 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.
- We repeat that both tests are objective tests. It follows that the view of the Appellant, (and as we understand Mr Hawwari's affidavit his view) are not determinative of the issue. Their views are subjective views. We proceed on the basis that their views are honestly held and advanced. However, on the objective approach that we have to follow we have to consider what a reasonable observer present at the hearing who was not a party or associated with a party but who knew the issues involved, would have concluded.
- Here a number of the underlying primary facts which are relied on by the Appellant in support of his claim of bias or procedural unfairness are not accepted or agreed. This gives rise to difficulties.
- We are aware of the decision of this Tribunal in Roberts v United Friendly Insurance Plc (Appeal No. EAT/436/95) that in respect of allegations of bias as a matter of policy the account of the members of the Tribunal should, in the case of disagreement, be preferred. That case refers to earlier authority which can be said to go both ways but do not support a conclusion that members of a Tribunal cannot be compelled to give evidence. Whilst we agree that it is undesirable that members of a Tribunal should be called upon to give oral evidence, we do not agree that as a matter of policy they should never be ordered to do so. In our judgment such a policy could lead to the issue not being dealt with fairly. A basic proposition of our present law is that parties should have a fair trial and this is also part of the European Convention on Human Rights (see Article 6).
- In our judgment this is a different issue to the question whether the notes of evidence made by the Employment Tribunal should be conclusive in the event that the parties do not agree that they contain an error.
- In addition we point out that, in our judgment it does not follow that simply because the members of the Employment Tribunal, or the other party, do not specifically dispute some of the allegations made by an Appellant those allegations should be accepted.
- A finding of bias or procedural unfairness must be based on primary facts proved on the balance of probability. The burden is on the person alleging bias. The approach to making findings on the balance of probability has been recently considered by the House of Lords in Re H (Minors) Sexual Abuse: (Standard of Proof)  AC 563, in particular at pages 586/7 where Lord Nicholls points out that in assessing the probabilities a court or tribunal will have in mind, as a factor, to whatever extent is appropriate in a given case, that the more serious the allegation the less likely it is that the event occurred, and, hence, the stronger should be the evidence before the court, or tribunal, concludes that the allegation is established on the balance of probability. In our judgment this comment applies to allegations of bias and inappropriate conduct by members of Employment Tribunals.
- We are also aware that a case concerning the approach that this Tribunal should take when the factual allegations made to support an allegation of bias are disputed is due to be heard by this Tribunal with the benefit of submissions from an amicus. A date has not yet been set for the hearing of that case. We have considered whether we should adjourn this aspect of this case to await the decision of the Tribunal in that case as to the general approach to be taken. Having regard to the points made below, we have decided that we should not do so.
- Here the Appellant bears the onus of establishing the facts he relies on to support his allegation of bias and procedural unfairness and that such facts establish bias or procedural unfairness judged through the eyes of an objective third party observer.
- The Appellant argued that some of the findings of the Employment Tribunal set out in their Extended Reasons were in terms that demonstrated bias.
- We accept that during the course of a hearing expressions of opinion or view in forthright or strong terms may be inappropriate and might suggest bias but, in our judgment, the same does not apply to findings in Extended Reasons or a Judgment provided that the findings (a) are relevant, (b) are based on evidence and (c) are not gratuitous comments. Indeed, we go further and say that in our judgment in making findings which it considers to be relevant a tribunal, or court, should not shrink from making forthright and clear findings concerning the attitude, stance or behaviour of a litigant.
The Appellant's allegations of bias
- These are contained in paragraph 4 of the Notice of Appeal and the Particulars therein and in paragraph 1, subparagraphs (a) to (v) of his Skeleton Argument. These documents have to be read with the evidence put in by and on behalf of the Appellant, the Chairman's comments on the Appellant's evidence and the comments of the Respondents on the Appellant's evidence. Further, they have to be considered in the light of the oral submissions made to us by the Appellant.
- We do not think that it is necessary or sensible for us to go through each and every one of the allegations made by the Appellant in his Skeleton Argument and deal with them separately. We have concluded that the correct course is for us to deal with the allegations under general headings. These headings are:
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.
- By way of overview we have concluded that the Appellant has failed to establish a reasonably arguable case of bias or procedural unfairness.
- In considering these issues we have proceeded on the basis that the assertions as to the underlying primary facts (eg the exclusion of certain parts of Mr Hawwari's statement, the refusal to allow certain matters to be given in evidence, the assertion that the Chairman stated that "I was not listening to him (the Appellant)", and the admission of the supplementary statement by Mr Muawad) are all correct. This is not the same as an approach which treats the views of the Appellant, his witness, the Chairman or the Respondents as to the impression that these events gave them, or would give to others, as being correct. In considering the effect that we consider the matters relied on by the Appellant would have on the informed and reasonable third party observer, we have had regard to the effect he says they had on him and his witness, the comments of the Chairman and the Respondents and the fact that the Appellant is clearly an intelligent man who is inevitably closely and emotionally involved with the events that form the subject matter of this litigation.
- In our judgment it is not reasonably arguable that there was anything that happened in this case that went outside the normal cut and thrust of litigation which was hotly contested. In particular, we would draw attention to the points made in paragraph 1(c) of the Skeleton Argument because they indicate that the Chairman was making points during the course of the hearing which, on their face, were in favour of the Appellant and against the Respondents. This indicates that he was taking an even-handed and fair approach. The intervention recorded in paragraph 1(k) of the Skeleton Argument by one of the members of the Employment Tribunal also demonstrates that he was taking an even-handed approach.
- We would accept that the point made in paragraph 1(h) of the Skeleton Argument, namely that:
"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.
- As to the decisions made relating to the exclusion of evidence, inviting people to leave the room, the conduct of Counsel for the Respondents and generally as to the conduct of the litigation, in our judgment, it is not reasonably arguable that the matters relied on by the Appellant (even on the assumption that all of the decisions were wrong) demonstrate bias. We add that in our judgment such assumption is not correct and, for example, the Employment Tribunal were clearly correct and acting fairly to allow Mr Muawad to produce a supplementary statement. Further, it seems to us, that there was (or that it is arguably that there was) justification for all the decisions made by the Employment Tribunal as to the admission of evidence, the questioning of witnesses, the conduct of the advocates, the documents and generally as to the conduct of the hearing.
- We accept that the Appellant strongly asserts that the comments made and particularised in paragraph 1(b) of his Skeleton Argument are not correct and are unfounded. However, in our judgment, the Employment Tribunal did have evidence before them upon which they could reach the conclusions so expressed and such conclusions can properly be said to be relevant. This is because they relate to the relationship between the Appellant and the Respondents (in particular the Second Respondent). That relationship and the conduct and steps taken by them respectively and the reasons for that conduct and those steps were relevant to the issues of direct race discrimination and victimisation.
- Accordingly, in our judgment, even on the assumption that those findings are wrong, it is not reasonably arguable that they demonstrate bias or procedural unfairness.
- In our judgment the fact that the Chairman did not make Interlocutory Orders as requested in correspondence by the Appellant does not demonstrate bias or procedural unfairness. In our experience, notwithstanding the fact that an order that the Appellant do provide Particulars was made at an early stage, the fact that the Chairman did not make orders as requested by the Appellant in his correspondence accords with the practice often adopted by the Chairmen of Employment Tribunals in respect of similar requests in similar cases.
- In our judgment it is not reasonably arguable that the manner in which the interlocutory stages of these proceedings were conducted indicates bias or procedural unfairness on behalf of the Chairman.
- We do not accept that the criticisms made of the Chairman's response to the Appellant's affidavit are valid or that his response provides the basis for a reasonable argument that he was biased or that there was procedural unfairness.
- We have considered the allegations of bias on the basis that the allegations made by the Appellant in respect of the underlying primary facts are correct. The point he makes that, albeit (as he asserts) the Respondents have attempted to water down the incidents he relies on, their response shows some common ground does not add to the assumption, or assist the Appellant. We agree that the response of the Respondents does so provide some common ground as to the underlying primary facts, albeit that it also makes clear that they place a different interpretation on a number of them.
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