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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Facey v Midas Retail Security & Anor [2000] UKEAT 966_98_0905 (9 May 2000)
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Cite as: [2000] UKEAT 966_98_0905

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BAILII case number: [2000] UKEAT 966_98_0905
Appeal No. EAT/966/98 EAT/1137/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
             At the Tribunal
             On 1 & 9 May 2000

Before

THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT)

MRS D M PALMER

MR G H WRIGHT MBE



MR S FACEY APPELLANT

(1) MIDAS RETAIL SECURITY
(2) WHITGIFT CENTRE MANAGEMENT
RESPONDENTS


Transcript of Proceedings

JUDGMENT

Revised 6/9/2000

© Copyright 2000


    APPEARANCES

     

    For the Appellant MR S KUTTAPPAN
    (Representative)
    For the First Respondent







    For the Second Respondent
    MR JOHN BOWERS QC
    and MR DALE MARTIN
    (of Counsel)
    Instructed By:
    Messrs Fairbairn Morris
    Grant House
    56-60 St Johns Street
    London EC1M 4DT

    NO APPEARANCE OR
    REPRESENTATION
    BY OR ON BEHALF OF
    THE SECOND RESPONDENT


    ON BEHALF OF MEMBERS OF THE
    EMPLOYMENT TRIBUNAL
    LONDON (SOUTH)

    AMICUS CURIAE


    MR B CARR
    (of Counsel)


    MR J EADIE


     

    MR JUSTICE LINDSAY (PRESIDENT):

  1. This appeal raises important questions as to how the EAT is to deal with cases where the Employment Tribunal or one or more Members of it are said to have been biased or prejudiced in their handling of the case before them and where there are sharply contested issues of primary fact the resolution of which is likely to be of real assistance in the determination of whether the bias or prejudice did exist. In particular, can Tribunal Members either choose or be compelled to submit themselves for cross-examination? As modern authority tends not to distinguish in this area between Judges of superior or of other courts - see Warren -v- Warren [1997] Q.B. 488 at 497 - or, we would think, Tribunals, the importance of the questions raised may go beyond the EAT and the Employment Tribunals. However, as a full understanding of the facts is necessary for a decision on one part of the argument, we shall first set out the facts at some length.
  2. On the 26th August 1997 Mr Sam Facey, a security officer, presented an IT1 claiming racial discrimination and racial victimisation against two respondents, Midas Retail Security Ltd and "Whitgift Centre Management". It transpired that the correct identity of the Second Respondent was BZW Property Investment Management Ltd. The victimisation claim was later withdrawn.
  3. In briefest outline Mr Facey's discrimination claim was that after he had worked at the Whitgift Shopping Centre for over two years the contractor providing security services changed and, although he had applied for a job with the new contractor, he, a black with a good working record, was not taken on whereas whites with comparatively poor records were.
  4. In their respective IT3s Midas gave reasons, unconnected with race, why, it said, Mr Facey had not been taken on and BZW had, it said, taken no part in the selection of the security staff at all. Both denied racial discrimination.
  5. Directions as to the production of documents were given at an inter partes Directions Hearing and Directions had also been given by a letter from the Chairman identifying the issues which the Chairman saw to arise in the case.
  6. There was then a hearing on the 1st June 1998 at the Employment Tribunal at London (South) under the Chairmanship of Mrs F.J. Silverman. Mr Facey was represented by Mr S.Kuttappan, a representative without any United Kingdom legal qualification, and each Respondent was represented by Counsel. The Extended Reasons were sent to the parties on the 3rd June 1998. They described the Employment Tribunal's views of the unusual events of the 1st June. Later versions of the events of that day do differ from this version and from each other in minor respects but for the time being we shall give only the version found in the Tribunal's Extended Reasons. Proceedings had commenced at 10.10 a.m.. Mr Facey, by Mr Kuttappan, produced an unagreed bundle of documents, contrary to the terms of the earlier Directions Hearing and which included several documents marked "Without Prejudice". BZW's Counsel objected to their inclusion. The Chairman asked Mr Kuttappan to remove them. He refused to do so. The Chairman then turned to the issues in the case identified in the earlier letter but Mr Kuttappan interrupted and was asked by the Chairman not to do so. Mr Kuttappan then said he had no faith in the Tribunal and asked for the case to be transferred to another Tribunal. Both Respondents opposed that. At 10.20 a.m. the Tribunal rose to consider the request for a transfer. At 10.34 a.m. the Tribunal returned; it considered it was neither biased nor partial and it had not even begun to hear evidence. Mr Kuttappan's request for a transfer was refused. Mr Kuttappan said that he had no confidence or faith in the Tribunal which was unfair, biased and prejudiced, rude, discourteous and arrogant. He was, though, willing that another Tribunal should hear the case. The Chairman said the case would continue before it and asked Mr Facey whether he wished to continue without his representative. Mr Facey said he did not. Mr Kuttappan indicated that he was not withdrawing Mr Facey's claim but was not going to go ahead before that Tribunal. The Chairman asked Mr Kuttappan whether he was calling any evidence. He declined to do so and left the hearing room at 10.50 a.m. with Mr Facey. The hearing continued; the Respondents by Counsel made submissions as to the onus having been on the Applicant, as to that onus, in the absence of all evidence from the Applicant, having not been discharged and as to the Applicant's conduct and costs. The proceedings closed at 11.20 a.m..
  7. The unanimous decision of the Tribunal emerged in its written decision with Extended Reasons and was that Mr Facey's claim for race discrimination was dismissed against both Respondents; no evidence had been presented and there was therefore no case to answer. Mr Facey was ordered to pay Midas's costs (to be taxed on Scale 2) and to pay £500 towards BZW's costs.
  8. In the meantime on the 1st June Mr Kuttappan wrote to the President of the Employment Tribunals asking him to ensure that neither Mrs Silverman nor any other chairman would be biased against any applicant or representative "although", as he put it, "they belong to minority communities". He enclosed a brief statement Mr Facey had made that day indicating that he, Mr Facey, had, he said, reasonably felt that Mrs Silverman had been prejudiced against him and that he had told Mr Kuttappan that his case must not be heard by her. Also on the 1st June 1998 Mr Kuttappan wrote to the Regional Chairman of the Employment Tribunals in similar vein and asking for another Chairman to hear the case.
  9. On the 12th June 1998 Mr Facey wrote a letter of complaint to the Regional Secretary of the Employment Tribunals. The Chairman, said Mr Facey, had been rude, arrogant discourteous, disrespectful, and contemptuous to or with Mr Kuttappan, an Asian of Indian origin. The letter continued:-
  10. "When Mr Kuttappan addressed the Chairman [as] "Madam Chairman", Mrs Silverman was very angry and annoyed and she stared at him and told him not to call her "Chairman" but to call her "Madam". The manner in which Mrs Silverman looked at Mr Kuttappan and told him was indeed very rude, discourteous, disrespectful and contemptuous".

    Mr Facey said he understood there had been some other case a couple of months before when Mrs Silverman had, so to speak, crossed swords with Mr Kuttappan and that she was probably aware that Mr Kuttappan had been critical of other Chairman in discrimination cases where he, Mr Kuttappan, had been a representative. He described both himself and Mr Kuttappan as having been forced to leave the Tribunal on the 1st June. He complained, too, of the order for costs; no-one had told him, he said, that he would be liable for costs if he did not go ahead with his case and Mr Kuttappan, before leaving the Tribunal, had said that Mr Facey would not be liable for the costs of anybody and that no-one else, said Mr Facey, had disagreed with that. The letter asked that the decision of the Tribunal should be reviewed - see Employment Tribunal Rule 11.

  11. On the 13th June Mr Facey applied, as it would seem, on paper to Mrs Silverman, by way of Mr Kuttappan, to stay the order for costs that had been made against him. The application failed. Whether or not she expressed this view at the time, Mrs Silverman later took the view that she had had no power to order a stay as to costs.
  12. On 10th July 1998 the EAT received a Notice of Appeal from Mr Facey appealing against the decision (including as to costs) of 3rd June 1998. He said he was black, that Mr Kuttappan was Asian, that the Chairman had been rude, arrogant, discourteous, disrespectful, contemptuous and impatient at Mr Kuttappan "without sufficient justification" and biased and prejudiced against him (Mr Facey) and/or Mr Kuttappan. When Mr Kuttappan addressed the Chairman as "Madam Chairman", Mrs Silverman, alleged the Notice of Appeal, was very angry and told him not to call her "Chairman" but to call her "Madam". It was not improbably Mr Kuttappan's conduct of other Tribunal cases which caused her to be rude to him. Mr Facey and Mr Kuttappan were, it asserted, forced to leave the Tribunal. There was a manifest miscarriage of justice.
  13. On the 17th August 1998 the Chairman on her own declined a review on the ground that the application for it disclosed no reasonable prospect of success and that it was not in the interests of justice to allow it - see Employment Tribunal Rule 11 (5). Mrs Silverman stated, amongst other reasons for declining a review, that she had not asked Mr Kuttappan to address her as "Madam" and that she had no recollection of hearing any other case in which Mr Kuttappan had appeared. She added, as to costs, that Mr Facey had been aware before he had left the Employment Tribunal that costs might be awarded against him as that issue had already been raised by the Respondents' representatives. He had been warned that the case would proceed in his absence if he chose to leave. As to the stay of the Order for costs, to a mention of her having no relevant power she added that as the review was declined an order for a stay of the costs Order would have been in any event fruitless.
  14. On the 21st August 1998 Mr Facey lodged Notice of Appeal against the decision of the 17th August 1998 of the Chairman not to review the earlier one of the 3rd June 1998 and not to stay the Order for costs. The grounds of appeal consisted of a letter from Mr Kuttappan complaining that the decision as to the review was biased, prejudiced, unfair, unreasonable and unlawful. The Chairman was absolutely biased and prejudiced against Mr Facey and/or Mr Kuttappan because they belonged to ethnic minority communities whereas the Chairman, the other Members of the Tribunal, "the Respondents and their representatives, who were Counsels, were all white people" (as was the case in respect of such of them as were individuals).
  15. The EAT's Practice Direction at paragraph 9 requires that allegations about the conduct of Employment Tribunal hearings should normally be sworn to and on the 24th August 1998 Mr Kuttappan swore an affidavit in which he described himself as follows:-
  16. "I am an Asian of Indian origin and I speak English as a second language with a strong Indian accent. I was practising as a junior lawyer in India for about three years, until I immigrated" [sic] "to England to join my wife. I have no UK qualifications".

    He continued, as to what might be called the "Madam" incident:-

    "During the hearing of the case on the 1st June 1998, when I addressed the Chairman "Madam Chairman", Mrs Silverman was very angry and annoyed and stared at me and told me not to call her "Chairman" but to call her "Madam". It was indeed in a very rude, discourteous, disrespectful and contemptuous manner that the Chairman Mrs Silverman looked at me and told me that".

    On the subject of interruption he said:-

    "Subsequently on another occasion, during the hearing when I started to speak something, Mrs Silverman also started to speak something and because I did not stop speaking immediately, Mrs Silverman again lost her patience and stared at me and told me in a rude and disrespectful manner not to speak when she was speaking".

    As to the bundle of documents, he made no reference to the complaint that his or his client's bundle contained "without prejudice" documents but he does allege that the Chairman said that she was not prepared to consider Mr Facey's bundle. Mr Kuttappan reiterated the charges of discourtesy and bias and said that Mrs Silverman had never said that the Tribunal would continue to hear the case even if he and Mr Facey left and, he added, she had given no warning as to costs either. The affidavit continued:-

    "Mrs Silverman could not have tolerated the Appellant (a black man) criticising her and that could be the most important reason why she refused his application for a review".

    On the 25th August 1998 Mr Facey made an affidavit in terms strikingly similar to that of Mr Kuttappan's of the day before. He asserted that Mrs Silverman had insisted that she should not be called "Chairman" but "Madam". He, too, failed to mention that the objection to the bundle of documents was, in part at least, because it contained "without prejudice" papers. Mrs Silverman had, he said, demonstrated an absolutely irrational, unfair, biased and prejudiced treatment against him.

  17. As is its customary practice, the Employment Appeal Tribunal then sent these affidavits to the relevant Chairman for comments.
  18. On the 11th October 1998 the Chairman supplied her comments. She denied that the decision of the Employment Tribunal had been biased, prejudiced, perverse, unreasonable or unlawful. As to the remarks made against her, she denied that she had been disrespectful or that any other of the epithets had fitted her. As to the "Madam" incident, she categorically denied asking Mr Kuttappan not to call her "Madam Chairman", asserting that that was indeed the correct form of address. As she had said on dealing with the review, she said she had no recollection of hearing a previous case in which Mr Kuttappan had been involved. She had been unaware of his previous history of representation at the London (South) Tribunal. She said that Mr Kuttappan had been warned before he left that the case would proceed whether or not he chose to be present and that the question of costs had arisen before he left the room. As to documents she said:-
  19. "It is true that the Chairman asked why a separate bundle had been produced by the Applicant in the light of the previous directions to prepare a common bundle. The Chairman did not refuse to consider these documents but made it clear to both parties that as the Tribunal had not had the opportunity before the hearing to read any of the documents (from either party) that if the parties wished the Tribunal to consider any of the documents they would need to specifically refer the Tribunal to them, to give the Tribunal an opportunity to read the documents so referred and that each page so referred would be marked in red by the Tribunal Chairman".

    She had, to her knowledge, never met Mr Facey or Mr Kuttappan before the 1st June. It was Mr Kuttappan that had been rude.

  20. On the 12th March 1999 BZW's Counsel supplied unsworn comments on Mr Facey's and Mr Kuttappan's affidavits. As to the "Madam" incident, he had no recollection of the words which they attributed to Mrs Silverman being said. He continued:-
  21. "At no time during the course of the hearing was Mrs Silverman noticeably angry or annoyed whether with Mr Kuttappan or anyone else. At no time do I recall her staring at Mr Kuttappan. At no time did she behave in a rude contemptuous or arrogant manner. I do recall that at certain points during the hearing Mr Kuttappan and Mrs Silverman talking at the same time. My recollection is that it was Mr Kuttappan interrupting Mrs Silverman rather than the other way round. At no time did Mrs Silverman noticeably lose her patience. At no time do I recall her staring at Mr Kuttappan. At no time was she rude disrespectful or contemptuous. At no time do I recall any aspect of Mrs Silverman's tone of voice, facial expression, body language or manner of speaking which could be interpreted as treating Mr Kuttappan or the Appellant in any other than a fair and impartial manner".

    As to documents, he recalled that the Respondents had asked for some documents to be removed from Mr Facey's bundle, particularly some clearly marked "Without Prejudice". He continued:-

    "The decision of the Tribunal, as noted by me at the time, was that all documents would stay in the bundle but that pages 46-49 would not be read by the Tribunal. At no time did Mrs Silverman say that she was not prepared to consider the Appellant's bundle of documents. The Tribunal did indicate, however, that it would only read documents, whether in the Appellant's or the Respondents' bundle, if specifically referred to those documents".

    The pages 46-49 were the pages marked "Without Prejudice". He indicated that whereas Mr Kuttappan had said to the Tribunal that he believed that Mrs Silverman was rude, discourteous and arrogant and that he had no faith in her, Mrs Silverman:-

    ""At no time did ..... display a rude, arrogant, impatient, contemptuous, unfair, biased or prejudiced attitude or approach".

    It was made clear, he said, that it was the Employment Tribunal's intention to continue to hear the case whether or not Mr Facey and his representative chose to leave. He could not recall when the issue of costs was first raised.

  22. On the 17th April 1999 Midas' Counsel gave an unsworn response to the two affidavits. As to documents she said:-
  23. "The hearing commenced with Mrs Silverman enquiring why there was not one agreed bundle as per the order of the 6th January 1998. Counsel for the First Respondents stated that she questioned the relevance of a number of the documents in the Appellant's bundle and thus could not agree them. A discussion followed in the course of which Counsel for the Second Respondent applied for the "Without Prejudice" at pages 46-49 inclusive of the Appellant's bundle to be removed. This was vigorously opposed by Mr Kuttappan. Mrs Silverman gave Mr Kuttappan full opportunity to voice his opposition. The Tribunal's decision was that whilst these pages would remain in the bundle the Tribunal would not consider them. Mrs Silverman did not at any stage state that the Tribunal would not consider the Appellant's bundle of documents but made it clear to all that if either party wished the Tribunal to read a document they must refer to that specific document".

    A little later she added:-

    "Mr Kuttappan was not satisfied with the Tribunal's decision and continued to argue that consideration should be given to the "Without Prejudice" documents. Mrs Silverman repeated the decision of the Tribunal. Mr Kuttappan then stated that he was not happy to present the Appellant's case in front of this Tribunal and applied for a fresh Tribunal to be appointed".

    As to the "Madam" incident she said:-

    "I recollect Mrs Silverman telling Mr Kuttappan that the form of address was "Madam Chairman" not "Chairwoman" and that this was said by way of information as opposed to by way of sanction or criticism of Mr Kuttappan".

    As to interruptions she said:-

    "Furthermore she [Mrs Silverman] did tell Mr Kuttappan not to talk over her whilst she was speaking because that is precisely what he had done on a number of occasions during the discussion. Throughout the discussion and indeed throughout the hearing my recollection is that Mrs Silverman treated Mr Kuttappan in both a fair and professional manner. Mrs Silverman at no stage displayed anger or annoyance towards Mr Kuttappan or indeed anyone else present. She did not lose her patience or stare at Mr Kuttappan or speak to him in a rude and disrespectful manner. I do not recollect anything about her tone of voice, her facial expression or her body language which led me to believe that she was treating Mr Kuttappan with contempt, disrespect and impatience or that she was treating Counsel more favourably than Mr Kuttappan".

    When Mr Kuttappan asked for the matter to be transferred to a different Tribunal, Counsel for both Respondents, she said, "Voiced their opposition and stated that costs would be sought if there was an adjournment today". After the Employment Tribunal had returned to say that they would refuse any transfer:-

    "Mr Kuttappan said that he would appeal and Mrs Silverman said that that was a matter for him but that they would continue with the case. Mr Kuttappan repeated that he would not present the case in front of her. Mrs Silverman asked the Appellant if he was prepared to present his own case. He said that he was not. Mr Kuttappan and the Appellant then walked out of the Tribunal room at 10.50 a.m. and did not return. My recollection is that both the Appellant and Mr Kuttappan had been made aware that the case would continue even if they left".
  24. On 9th August 1999, Mr Fletcher of Lovell White Durrant, BZW's Solicitors, who had attended the hearing on 1st June 1998, supplied both manuscript and typed forms of the notes he had taken that day. He records Mrs Silverman requiring the "Without Prejudice" pages to be removed from the bundle, Mr Kuttappan's objection to that and the Chairman's decision that they could remain in but would not be considered. He records Mr Kuttappan shortly thereafter interrupting to say that he and Mr Facey had no confidence in the Tribunal, that they should not hear it and that it should be transferred. After the Tribunal had returned after considering the application he records Mr Kuttappan adding that the Tribunal was rude, discourteous and arrogant; the case should go ahead but not in front of that Tribunal. He records the Chairman's answer was "We are hearing this case. If you want to make any written application that is your prerogative. If you want to withdraw, that is up to you". He records the Chairman asking Mr Facey if he wished to stay and records him answering that he, too, was leaving. He says nothing as to the "Madam" incident or as to any issue of costs having arisen before the departure.
  25. On 29th August Mrs Silverman by letter reiterated that before Mr Kuttappan left the Tribunal she reminded him that the Tribunal would continue to hear the case in his absence and that she had never conducted any other full merits hearing in which he had been involved in any capacity
  26. Counsel's contemporary hand-written notes were made available and the Chairman made available her contemporary notes taken on her lap-top computer. They made no mention of the "Madam" incident but do record the objection to "Without Prejudice" documents, Mr Kuttappan's refusal to remove them, and Mr Kuttappan's interruption of the Chairman. They record Mr Kuttappan saying he was not responsible for costs to the Tribunal or to anyone and of his being told that the Tribunal would proceed to hear the case before he and Mr Facey withdrew.
  27. On the 10th December 1999 Mr Charles Lowe F.C.C.A, one of the two Lay Members who had sat with Mrs Silverman on the 1st June 1998, added some recollections of the events of that day. As to the "Madam" incident he said:-
  28. "I remember clearly the exchange over the manner of addressing a lady Chairman although I cannot with equal certainty say whether it took place right at the start of the hearing or after Mrs Silverman had ruled on the exclusion of the "Without Prejudice" documents. I do not agree with Mr Facey or with Mr Kuttappan when they say that the latter addressed Mrs Silverman as "Madam Chairman". The term used by Mr Kuttappan was "Chairwoman" and I recall being surprised at his use of such term. I would not have found "Madam Chairman" at all remarkable as this, of course, is a common, and entirely acceptable, form of address when a Tribunal is chaired by a lady. I seem to remember Mrs Silverman observing that "Chairman" was the term used in the legislation".

    He could not accept that Mrs Silverman was rude, disrespectful, arrogant or contemptuous in the way that she addressed Mr Kuttappan. She had seemed to him, when she spoke to Mr Kuttappan, to be calm and professional. He added "To the limited extent of my ability to interpret body language, it appeared to me that it was Mr Kuttappan who was behaving belligerently". He recollected Mr Kuttappan raising his voice "To the extent that his behaviour could be described as rude, disrespectful and provocative". Mr Lowe's contemporary notes of the proceedings of the day show Counsel for the Respondent indicating that they would apply for costs before Mr Facey and Mr Kuttappan had left the Tribunal.

  29. Mr T. Spellman, the other Lay Member of the Tribunal of the 1st June 1998, made a brief report that confirmed that the Respondents wished the "Without Prejudice" documents to be removed from the bundle which the Applicant was presenting. He adds:-
  30. "Mr Kuttappan, the Applicant's representative, made it clear that he would not agree to this. The Chairman then suggested that they be left in the bundle, but that we would not read them. At this point Mr Kuttappan became very angry and demanded another Tribunal as he had no confidence in Mrs Silverman. The Chairman explained that we were allocated the case and that it was not possible to pick and choose which Tribunal heard a case. Mr Kuttappan angrily informed us that he was not going to allow us to hear the case, as the Tribunal was showing bias against him. And that Mrs Silverman was not a fit person and that he was leaving the Court. The Chairman, Mrs Silverman, explained that this was not advisable or in the interests of his client Mr Facey, as the case would proceed in his absence. Mr Kuttappan again told us that he was leaving and that we could do what we like. He would not be responsible for whatever we did and that included costs. Mrs Silverman at this stage invited Mr Facey to have his case heard in the absence of Mr Kuttappan. They briefly whispered to each other. Mr Facey then informed us that he would also leave. After they departed we then proceeded with the case, including costs".
  31. A number of the various versions of the events of the 1st June 1998 had been produced pursuant to directions given by the EAT under Morison J, President, on the 19th February 1999. The matter returned as a Preliminary Hearing to the EAT on the 23rd July 1999. The EAT, on that occasion under Charles J, suggested the collection of Counsel's and the Chairman's Notes and of the recollections of the Lay Members which led to their production as we have already described. After the review of several authorities the EAT then ordered that there should be a Directions Hearing as to the appropriate procedure for the EAT to adopt in this case and generally where issues of primary fact need to be resolved in the resolution of allegations of misconduct, bias or procedural impropriety at the Employment Tribunal, issues of fact which were likely to be highly material to a conclusion as to whether there had, indeed, been bias or misconduct. In the past the EAT had always decided such matters solely on paper; but should the EAT hear oral evidence in such matters and from whom should it hear it? The Attorney-General was to be invited to appoint an amicus curiae and special leave was given to Mrs Silverman and the two Lay Members who had sat with her to make representations should they wish to do so.
  32. Accordingly at this Directions Hearing we have been addressed by Mr Kuttappan for Mr Facey, Mr Bowers Q.C. for Midas, Mr Carr for the Members of the Employment Tribunal who had sat together on the 1st June 1998 and Mr Eadie as amicus. BZW had indicated by its Solicitors' letter that it did not intend to be represented but that it would, of course, abide by any directions given.
  33. Before turning to the law we must emphasise that this is only a Directions Hearing; we are not concerned at this stage with whether there was or was not, for example, misconduct or bias but with how in this case (and more generally) the EAT should set about deciding such chief issues where there are sharp conflicts of primary fact the determination of which is either necessary or desirable in the resolution of those chief issues.
  34. No-one has argued that the EAT cannot pay attention to material of a kind such as that to which we have already referred; the affidavits of Mr Kuttappan and Mr Facey, the letters written, the Chairman's written unsworn comments, the unsworn comments of Counsel and Solicitors and the unsworn comments of the Lay Members. No-one argues, either, that such material should be excluded from the EAT's consideration upon the simple ground that its proponent (not having had an order made against him or her for his or her attendance) does not make him or herself available for cross-examination. No-one has argued that the parties themselves, Counsel, Solicitors, representatives or others of the public who are able to give direct material evidence are to be excluded from giving evidence or are not compellable to attend for cross-examination in the appropriate case. The principal question has thus become whether any of the Chairman and Lay Members of the Employment Tribunal either may, upon being invited to do so by the EAT, voluntarily submit themselves for oral cross-examination or, perhaps more importantly, can be compelled by the EAT to do so.
  35. Mr Kuttappan argues that the Members of the Tribunal should at least be given the opportunity not merely to give formal evidence-in-chief but also voluntarily to submit themselves to cross-examination. Each should be concerned to see that the full facts are found and that justice be administered without fear or favour and if any fails to give evidence and so to submit himself to cross-examination then the EAT should be free to draw adverse inferences against him. If a member of the Tribunal has nothing to hide, he says, why should he be reluctant? He himself was willing to submit himself to cross-examination and he went on to argue that the Chairman and, preferably, the two Lay Members as well should not merely be invited but should be compelled to attend for cross-examination, as should also both Counsel, Mr Facey and Mr Fletcher. He applied for the cross-examination of all eight. The EAT was thus to become the fact finding Tribunal. If there was anything in Locabail (UK) Ltd -v- Bayfield Properties Ltd [2000] 2 All E.R. 65 C.A. to the contrary, which he doubted, then Locabail was distinguishable in that in the cases to which it referred the material judicial process there in question had been completed whereas in the case at hand it had hardly begun. It is plain that Mr Kuttappan wishes his cross-examination of Mrs Silverman and perhaps that of the Lay Members to go well beyond questions as to the primary facts (such as whether the Chairman had told him not to call her "Chairman" but to call her "Madam" or whether she had had, or had any recollection of, previous dealings with Mr Kuttappan). He plainly intended his cross-examination to range into motives. Mrs Silverman could very well have been knowingly or unknowingly motivated by racial prejudice against him or Mr Facey, he said. The Lawrence Report, he says, shows that institutional racism is present in public bodies in this country and, he says, the Employment Tribunal is a public body and must unwittingly have discriminated against him and Mr Facey but is unwilling or unable to admit to that.
  36. Mr Carr argues that what the EAT ultimately has to ascertain in a case such as this is whether there had been, in the relevant circumstances, and in relation to the Employment Tribunal and each Member of it:-
  37. "... 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 before him ...."

    - see R. -v- Gough [1993] AC 646 at 670 f; ASI Glass Processing -v- Davis and Another unreported C.A. 27th April 1999 paragraph 21; Locabail supra at p.47.

  38. In order to answer that question, argues Mr Carr, the EAT should first do as was done here; affidavits should be collected from complainants in pursuance of the EAT's Practice Direction and unsworn comments of the Chairman and if necessary sworn or unsworn statements from other witnesses such as Counsel, Solicitors and representatives should also be taken. Only if they are necessary should unsworn comments be taken from the Lay Members of the Tribunal. When that has been done there will be cases in which, even giving the Appellant complainant the benefit of the doubt, it will have become plain enough that there was no real danger of bias shown. If, however, there is at that stage still a possibility of the presence of bias then there should be recourse to some oral evidence limited to those witnesses who are compellable and thus excluding the Members of the Employment Tribunal. Only if, even after that, there remains a possibility of a real danger of bias should the Chairman and Lay Members be invited by the EAT to give oral evidence and hence to submit themselves to cross-examination. They would not be compellable witnesses. He was not prepared to say there was no situation in which the EAT could properly draw adverse inferences from the failure of a Tribunal Member to respond to such an invitation. His argument did not distinguish between oral evidence, be it evidence-in-chief or cross-examination, as to primary facts and what one might call secondary facts, matters of fact to be drawn or inferred from the primary facts, such, for example, as a Chairman's motives or reasons or his or her rudeness, arrogance, or impatience. If an Employment Tribunal Member thus invited volunteered to give formal evidence then he could be cross-examined upon it but no Member could be compelled to give evidence. It would be quite proper for the EAT and others to invite a Tribunal Member not to hide behind his uncompellability.
  39. Mr Eadie, to whose admirable argument as amicus curiae we are especially grateful (and which we here take out of turn), begins by asserting that the overriding concern of any Tribunal or Court is to ensure that it operates a fair procedure. Article 6 reflects and requires that. Whilst an appeal is not always a necessary part of a fair procedure, where there is an appeal the Appellate procedure must itself be fair. The practical ingredients of fairness will vary from case to case. A pragmatic approach must be adopted. So far as concerns the evidence of Judges (and no distinction is to be drawn between different levels of Judge nor between Judges and Tribunal Chairman nor between Chairman and Lay Members for this purpose, so that it will often be convenient to use the word "Judge" to cover all) written statements can be received; Locabail supra at paragraph 19. The Court would not be bound to accept the assertions made in such a statement - Locabail at paragraph 64.
  40. Looking at matters generally rather than in relation to this particular case, in terms of practical steps, Mr Eadie's earlier stages were the same or much the same as Mr Carr's. But let it be supposed that after close analysis and a narrowing of the issues the Court is sensible that it still cannot fairly dispose of an allegation of bias without the evidence of the Judge, how is it to proceed? There cannot be a simple principle, where the evidence of a party or a representative differs from the unsworn comments of the Judge, that the latter view is to prevail. Roberts -v- United Friendly Insurance plc unreported 13th June 1996 EAT at page 13 (4) cannot be relied upon; one cannot, simply on a basis that he was such, prefer the view of the judicial (or quasi-judicial) individual - Jones -v- Secretary of State for Wales and others [1995] JPL 1135 at 1139, 1142 C.A.. There was no real analogy, argued Mr Eadie, with the notion under which a Chairman's Notes of Evidence are supreme where their accuracy is disputed; in any event the Chairman's Notes are not necessarily supreme. They are not, if, for example, after the due procedure of putting the matters in dispute to the Chairman, both sides still agree that the Chairman's Notes are incomplete or imperfect - Dexine Rubber Co Ltd -v- Alker [1977] ICR 434 at 438, 439 EAT. Some such simple basis of decision not being available, is the Judge's evidence competent and compellable? Jasper -v- The UK - The ECJ at 27052/95 recognises that in some cases it will be necessary to withhold certain evidence to safeguard an important public interest. But that is only the case where such measures are strictly necessary and "proportionate" - page 22.
  41. In Duke of Buccleugh -v- The Metropolitan Board of Works (1872) L.R. 5 H.L. 418 Cleasby B said at page 433, distinguishing between Judges and Arbitrators (the case there being one concerning an Arbitrator) that:-
  42. "With respect to those who fill the office of Judge it has been felt that there are grave objections to their conduct being made the subject of cross-examination and comment (to which hardly any limit could be put) in relation to proceedings before them; and, as everything which they can properly prove can be proved by others, the Courts of Law discountenance, and I think I may say prevent them being examined".

    But it is notable, says Mr Eadie, that the passage is obiter and that no principle or authority is given for the proposition and none is to be found. His argument recognises the problems that may arise if Judges give evidence; a new form of satellite litigation will be called into existence; there will be difficulty in controlling the cross-examination which will tend to run into reasons and motives; Judges will be taken away from their ordinary tasks which will be delayed or disrupted; finality in litigation will be even harder to achieve. It would be a disincentive to membership of the Bench or of Tribunals and a proper judicial dignity could be harmed. But, argues Mr Eadie, those factors are not enough to deny a party oral examination, the route habitually thought best in the ascertainment of disputed fact, when the Judge, on being invited by the Court to give oral evidence, agrees to do so. He accepts, though, that a Judge cannot be examined as to his process of reasoning and his examination must be limited to primary fact although he accepted, too, that the line between primary and secondary facts is not always easy to draw and that the EAT would need to exert a very careful control over a Judge's cross-examination.

  43. So long as a Judge's evidence is vital, there could be no consideration of public policy, he says, such as to make his evidence incompetent should he choose to give it. In Warren -v- Warren supra. Lord Woolf M.R. at page 497 said:-
  44. "It is also important to remember that the Judge will remain competent to give evidence, and if a situation arises where his evidence is vital, the Judge should be able to be relied on not to allow the fact that he cannot be compelled to give evidence to stand in the way of his doing so".

    Nothing in Locabail, argues Mr Eadie, precludes a Judge freely responding to an invitation from the EAT to give evidence and it would be too extreme to oblige him not to do so even where he was willing to do so. Indeed, if Locabail forbade that it would be inconsistent with Warren supra. If a Judge were to be invited to give evidence in such a situation but without good reason failed to do so then Mr Eadie does not shrink from saying that adverse inferences could then be drawn against him. But it is no part of Mr Eadie's argument that a Judge is a compellable witness (by which we mean compellable at the suit of a Court or Tribunal) in respect of his evidence as to his judicial function in a case he is hearing or has heard.

  45. Mr Bowers Q.C. for Midas begins with an argument that the EAT should accept the accuracy of the written evidence (sworn or unsworn) of the Chairman unless it is manifest from the material before the EAT that it would be unsafe to do so - see Roberts -v- United Friendly, EAT supra, Sivanandan -v- Hackney Action for Racial Equality unreported EAT 20th October 1999, Tchoula -v- Netto Food Stores unreported EAT 6th March 1998. The latter two cases cannot support the argument and, as to the first, we prefer Mr Eadie's argument; Locabail supra, too, makes it plain that the Judge's version need not be accepted - paras 19 and 64. Whilst, of course, a fact-finding body pays regard, inter alia, to the quality of the source of the information which it receives, it would be unfair to have an absolute rule such that, simply by reason of the high regard in which the office was held, the office holder's evidence would be paramount even if untested by cross-examination.
  46. As for compellability and competence, Mr Bowers' argument requires a closer look at Locabail. The case was carefully arranged to come on before the most senior constitution available of the Court of Appeal. The single judgment was the judgment of the whole Court. It was not only entitled to the highest respect but was plainly intended to give the widest and most authoritative guidance in the whole area of bias and prejudice. Speaking at paragraph 19 page 75 supra of a written statement from a Judge "Specifying what he or she knew at any relevant time" - in other words dealing with a statement as to primary fact - the judgment continued:-
  47. "Often the Court will have no hesitation in accepting the reliability of such a statement; occasionally, if rarely, it may doubt the reliability of the statement; sometimes, although inclined to accept the statement, it may recognise a possibility of doubt and the likelihood of public scepticism. All will turn on the facts of the particular case. There, can, however, be no question of cross-examining or seeking disclosure from the Judge. Nor will the reviewing Court pay attention to any statement by the Judge concerning the impact of any knowledge on his mind or his decision: the insidious nature of bias makes such a statement of little value, and it is for the reviewing Court and not the Judge whose impartiality is challenged to assess the risk that some illegitimate extraneous consideration may have influenced the decision".

    That last sentence refers to a Judge's statements concerning the secondary fact of bias; the Court will not pay attention to them. The passage as a whole, in our view, must be taken to require that as to primary fact a Judge cannot be cross-examined in this area. Further, the sentence referring to secondary fact would seem to make a Judge's evidence on related subjects not just uncompellable but incompetent. Building on that, it is hard to see why, as a matter of inference or secondary fact, a Judge can be expected to be any more reliable as to whether he was rude, impatient, or arrogant, for example, than whether he was biased or prejudiced. Moreover, Locabail does not appear to distinguish between a Judge who, on the invitation of the Court, makes himself available for cross-examination and he who declines to attend. The bar is absolute. There is no question of a cross-examination. As the Judge, by reason of public policy, is in such ways to be neither compellable nor competent it would be quite wrong, argues Mr Bowers, for any Court to draw adverse inferences against him from a failure on his part to give formal evidence or to be cross-examined.

  48. As for whether the earlier case of Warren -v- Warren supra requires a different view to be taken of that passage in Locabail, one needs, argues Mr Bowers, to look carefully at Warren. In that case the Court of Appeal was concerned with the propriety of a wasted costs order made against the solicitor-appellant who, amongst other allegedly unnecessary acts, had issued a Witness Summons requiring a District Judge to attend to give evidence as to the content of an undertaking which had been given in proceedings before him. The District Judge had already provided his notes of the hearing to the parties and the order drawn up had contained an undertaking. The Judge who had made the wasted costs order took the view that it was inconceivable that the District Judge could have had anything further to add of relevance and hence that the witness summons was unnecessary and wasteful. The Court of Appeal disagreed with that - page 498 e. So the wasted costs order thus raised the question of whether it had been unreasonable in point of law to seek the attendance for evidence of the District Judge. The understood state of the law at the time the witness summons had been issued was:-
  49. "As to compellability, the preponderance of authority indicates that while Judges of the superior Courts cannot be compelled to give evidence, the Judges of the inferior Courts can be compelled to do so ....".

    Per Lord Woolf M.R. at page 496 d-e. No authority, it would seem, had been previously decided in relation to the position of District Judges, then a relatively novel office as such in the administration of justice. Lord Woolf, with whom Butler-Sloss L.J. and Saville L.J. concurred, held that the solicitor whose conduct was impugned could not be said to have acted unreasonably merely because he had sought the attendance of the District Judge - page 498 c. As what was in issue was whether or not the solicitor had acted reasonably it would have sufficed for the Court of Appeal merely to hold that as the position of District Judges as to their compellability had not previously been ruled upon one way or another it could not have been unreasonable for the solicitor to have acted as he had. However, prompted, it would seem, by an argument in that case from the amicus curiae that all Judges should be compellable witnesses - page 490 d - Lord Woolf held that the reasons that Cleasby B. had given for the uncompellability of Judges were still valid - page 497 e. While the District Judge in the Warren case had not been compellable, the solicitor-appellant could not be criticised for not appreciating that - page 498 c. Accordingly the wasted costs order could not stand and the appeal was allowed. It was in that context that Lord Woolf made the remark we have cited - page 497 h - that a Judge should be relied upon not to allow the fact that he could not be compelled to give evidence to stand in the way of his doing so. That remark, says Mr Bowers, was plainly obiter and it is notable, says Mr Bowers, that Warren was not cited in Locabail, which in turn suggested that Lord Woolf, a party to the judgments in both cases, had not drawn it to the parties attention as being of relevance nor saw it as conflicting with the judgment of the whole Court in Locabail. It is the latter case which is the more authoritative, says Mr Bowers, and is to be preferred.

  50. Untutored by binding authority we might or might not have acceded to Mr Eadie's and Mr Carr's powerful argument that it would in a proper case be right for the EAT at least to be able to invite and then permit a Judge voluntarily to attend for oral cross-examination, at any rate as to primary fact where the EAT could be confident that it would be able to confine the cross-examination to primary fact. But the passage we have cited from paragraph 19 of Locabail seems categoric; the Judge's own evidence as to secondary matters such as whether he has been biased or prejudiced (or, we would add, as examples, rude, impatient or arrogant) is to be disregarded and, as to evidence of primary fact, there is to be no question of cross-examination of the Judge. We believe ourselves to be bound in that regard by Locabail. But we do not understand Locabail to forbid a Judge from giving written sworn evidence-in-chief of primary fact (nor, of course, unsworn evidence - page 75 d-e). We say that because if, as Locabail makes plain, the Judge can give unsworn written evidence of primary fact it is hard to see why his added oath should lead to its being rejected. Moreover, if a Judge is enabled to give sworn written evidence-in-chief, any need for him to give oral evidence-in-chief disappears. As the giving of sworn written evidence-in-chief wastes less judicial time, costs less and is in any event now a common method of giving evidence-in-chief in civil matters, it is so strongly to be preferred as effectively to prohibit oral evidence-in-chief. It seems to us also to follow, if all this is right, that a Judge cannot be criticised for not attending for cross-examination and his failure to do so cannot provide material for an adverse inference but his failure, after receiving an invitation from the EAT to do so, to give sworn written evidence-in-chief, could be the subject of criticism and could provide ground for adverse inference.
  51. Accordingly, and confining ourselves to general considerations rather than focussing solely on the case at hand, we see the appropriate course to be followed by the EAT, when faced with a case where there is a sharp conflict of primary fact the resolution of which will play a material part in an informed decision as to whether the Tribunal or any Member of it was biased or prejudiced to be as follows. At each step the EAT is to move to the next only if in its view a sufficiently informed decision cannot be acceptably arrived at on the balance of probabilities without the taking of a further step or steps. Given the expense in time and money of Directions Hearings and of the production and the giving of evidence, the EAT is to be encouraged carefully to scrutinise whether a further step or steps are truly needed and only to permit them when their taking appears to be essential for a just decision of the case. The steps which may and may not be taken are as follows:-
  52. (i) First the steps outlined in the EAT Practice Direction paragraph 9 (3) will be taken and unsworn comments may then be taken from the Chairman and, if necessary, other Members of the Employment Tribunal under paragraph 9 (4);
    (ii) The EAT may next require sworn witness statements (or further ones) from persons not including Members of the Employment Tribunal;
    (iii) The EAT may then invite but cannot require the Chairman or other Members of the Employment Tribunal to provide sworn written evidence-in-chief as to primary fact;
    (iv) It will in a suitable case be possible, after such an invitation, for adverse inferences to be drawn from a Member's failure without good reason to provide sworn written evidence-in-chief of primary fact;
    (v) If, notwithstanding the material already collected, including whatever has been collected by way of disclosure orders, the EAT is of the view that such cross-examination will materially assist it, it may require the attendance for oral cross-examination of deponents not including the Chairman or other Members of the Tribunal;
    (vi) The EAT is not to hear a Member's cross-examination, be it as to primary or secondary fact, even where the Member in question has agreed to attend;
    (vii) The EAT is not to require the attendance of a Member of a Tribunal for cross- examination nor to require disclosure of documents from him or her;
    (viii) The EAT is not to draw adverse inference from a Member's failure to attend for cross-examination.
  53. To return to the case at hand, we must, for the reasons we have given, refuse Mr Facey's application that the Chairman and Members of the Employment Tribunal should attend for cross-examination. Moreover, as Mr Kuttappan indicated in the course of argument that if he could not achieve their attendance for cross-examination then it was pointless for him to press for the attendance for cross-examination of the Respondents' Counsel and Solicitor, we refuse to order their attendance either.
  54. Let it be supposed, though, contrary to our views expressed above, that when the EAT, having a bias or comparable case before it, hears an arguable case for the cross-examination of a Tribunal Member on his sworn or unsworn evidence of primary fact, it has a broad discretion whether or not to require the Member's attendance. Assume also that the discretion is to be guided chiefly by the difficulty or impossibility of resolving the issues of fact without cross-examination and the likelihood of their being resolved with it.
  55. We have already set out the various allegations and counter-allegations at length. It is not our present task, of course, but will ultimately be the task of the EAT that hears the substantive case, to decide whether or not there has been bias or racial or other prejudice in this matter. As we are not here deciding that issue we shrink from being altogether decisive in our reasoning; we would not want to be thought to be attempting to colour the views of the Tribunal that hears the substantive case. That Tribunal must remain free to decide the case on the basis of the material put before it. However, there are plainly weaknesses in the case advanced by Mr Facey and Mr Kuttappan. The Applicant's allegations as to the "Madam incident" vary from time to time and there is, for example, an inherent unlikelihood in the Chairman angrily telling Mr Kuttappan to call her "Madam" and not "Chairman"; "Madam Chairman" is a common and accepted form of address whereas "Chairwoman" or "Madam Chair" is not. Further, whilst assessment of evidence is never simply a matter of counting heads, there is a striking numerical majority against Mr Facey and Mr Kuttappan on all material issues. Individuals of relative independence (the other Members of the Tribunal) favour the Chairman's views. Viewing the events through Mr Kuttappan's eyes, the first act of the Chairman which he reacted against (the Chairman's decision not to receive the Without Prejudice documents) would seem to have been the fault of Mr Kuttappan and he significantly fails to deal with it. The numerical majority points strongly in favour of it having been made plain before, Mr Facey and Mr Kuttappan withdrew, that the case would go ahead regardless. It is a conventional requirement, and hardly an indication of bias, that an advocate should become silent when the Court speaks. On Mr Kuttappan's own case the issue of costs had been raised before he left and one cannot attach weight to the fact that when he did raise it there was no initial disagreement with what he said; on one view at least the Respondents had warned as to costs and one would not expect a full response to be prompted by Mr Kuttappan's odd statement that he would not be responsible for costs. Nor has Mr Kuttappan identified any previous case that he had had before Mrs Silverman.
  56. It is hard to see that cross-examination would contribute to anything but a repetition of the statements already given in very full detail. As Mr Eadie argues, a relatively clear picture as to what was said at the hearing on the 1st June emerges from the various versions and the contemporary documents. He goes on to say that issues of tone and body language remain the prime sources of dispute and that in relation to such issues it is unlikely that live evidence in cross-examination would assist the EAT in resolving the issues before it. We agree. If, contrary to our views expressed above, we do have a discretion to permit or require cross-examination of Members of the Tribunal, on the facts of this case we would in any event exercise the discretion against there being any such cross-examination either required or permitted.
  57. Accordingly, whether or not we have a discretion in the matter, we refuse Mr Kuttappan's application for cross-examination and so far as concerns his offer to submit himself and Mr Facey for cross-examination, we decline to accept it. The case is fit to go ahead to be heard on the material already collected without the need for further directions as to the evidence.


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