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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Colback v. Ferguson & Ors  UKEAT 1004_00_2901 (29 January 2001)
Cite as:  UKEAT 1004_00_2901
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|At the Tribunal|
MR RECORDER UNDERHILL QC
MR J R CROSBY
MR S M SPRINGER MBE
Transcript of Proceedings
|For the Appellant||The Appellant in person|
MR RECORDER UNDERHILL
"respectfully seeks a determination on the status of Mr and Mrs Lowery"
These are the other members of the executive committee against whom the claim was dismissed. Her point is that Mr and Mrs Lowery resigned only because they were accused, or were suspected, of wrong-doing, and that they should not therefore be treated as if their resignation had been effective. We are not aware of any arguable ground of law on which that can be a correct analysis. The finding of the Tribunal was that they had effectively ceased to be members of the committee by the time the dismissal took effect, and that seems to us to be the only issue which arises.
"the Tribunal has failed to determine the commencement date of employment. This was an issue within the jurisdiction of the Tribunal but to which only vague findings have been alluded. The appellant does not take the view that this is a discretionary issue dependent only on the potential of a hearing for remedies."
That is a quotation from the original grounds of appeal. The matter is put slightly more shortly in the amended grounds of appeal. We do not see that the Tribunal was under any obligation to make a finding as to the commencement date of the Appellant's employment. It was not material to any relief which it was being asked to grant.
"15 Then we come to the fairness of the decision to treat redundancy as sufficient reason to dismiss the applicant. The statement was repeated during the course of the hearing, certainly originating on at least one occasion from the applicant's side that everyone knew there were going to be redundancies from February onwards, but it was just a question of how many and when against that background. There were crisis meetings, rescue plans, consultation with the union and agreement with a worker's representative and the union chair in a Personnel Sub-Group that there should be redundancy, notices were issued, a rescue plan was not adopted because of lack of funding support and the decision to close was confirmed and authorised by a minuted resolution of the remaining members of the executive committee. The Tribunal did not accept any challenge to the minutes of that meeting."
That summarises a number of other individual findings, in the early part of the Reasons, including findings that Mrs Anderson, the designated employee representative, had communicated to staff members on an ongoing basis the facts discussed in the executive committee as to the problems which Newcastle MIND was facing and the discussions of possible redundancies. The Tribunal plainly did not find Mrs Anderson a satisfactory witness, but that was the finding of fact which it made as to her role and how she performed it.
"The Tribunal found the statutory presumption of a fair redundancy to have been met. No Tribunal considering the evidence and directing itself properly to the law could have reached this finding: it is "plainly wrong"."
"it is lucidly clear that the respondents had no alternative but to bring the business of Newcastle MIND to a closure and dispense with the staff. They faced bankruptcy threats from the Inland Revenue, immediate demands for repayment of their overdraft from the bank and a total withdrawal of all major funding. Mrs Colback has tried nobly to argue that the situation was not as stated above, but with a conspicuous lack of success."
"The fact that it was canvassed appears to a large extent to have resulted from the payment of £3,000.00 which the applicant extracted from the respondents in July 1995."
The Appellant regards the use of the word "extracted" as pejorative, and indeed as implying criminal conduct on her behalf. We do not believe that it is to be read in that way; but even if, which we do not accept, the phrase were ill-judged it could not, by itself, be a ground of appeal against the decision of the Tribunal. We are happy to make it clear, if it needs to be, that it was not part of the Tribunal's role to make findings about the propriety or otherwise of the Appellant's conduct, and we do not think that this passage should be regarded by anyone as having that effect. The Appellant also relies on the same phraseology as indicating bias on the part of the Chairman; we do not see how it can be so understood.
"The Tribunal wing members in this case chose to make a private journey with a respondent immediately following the conclusion of the Hearing and before written submissions or a decision had been made. An independent person with knowledge of the issues involved could well form the view that this encounter could have led to a real possibility of bias."
This refers to an incident following the last day of evidence when the two lay members were seen by the Appellant sharing a taxi from the Tribunal to the railway station in Newcastle. This incident formed the basis, or part of the basis, of the Appellant's application for a review, and for the purpose of the review statements were obtained from the two lay members. The essential facts appearing from their statements, which are very full, appear to be these. Following the end of the hearing the members were waiting for a taxi outside a hotel close to the Tribunal offices. Taxis were slow to come, and they were anxious to get to the railway station as soon as possible. A taxi drew up and they tried to get in to it, but it then appeared that it had been pre-booked by Mrs Eccleston, one of the Respondents. When it became clear what had happened, Mrs Eccleston said that her route took her past the station, and offered that they should share. After initially demurring, they accepted. Mrs Eccleston sat at the front of the taxi, and they sat in the back. There was little conversation and none relating to the case. The members paid for the journey as far as the station.
"I think it unnecessary, in formulating the appropriate test, to require that the court should look at the matters through the eyes of a reasonable man, because the court in cases such as these personifies the reasonable man; and in any event, the court has first to ascertain the relevant circumstances from the available evidence, knowledge of which would not necessarily be available to an observer in court at the relevant time. Finally, for the avoidance of doubt, I prefer to state the test in terms of real danger, rather than real likelihood, to ensure that the court is thinking in terms of possibility rather than probability of bias. Accordingly, having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was 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 by him;"
Once it is appreciated that that is the test, and it is for this Tribunal, having regard to the facts as now known, to decide whether there was a "real danger" of bias, we are entirely satisfied that there was no such danger, and there is no prospect of an appeal succeeding on those grounds.
Sir, I need your permission for leave for the Court of Appeal.
Yes, you need to have asked for it. No, we refuse.