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Cite as: [2003] UKEAT 0597_02_1508

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BAILII case number: [2003] UKEAT 0597_02_1508
Appeal No. EAT/0597/02

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
             At the Tribunal
             On 22 May 2003
             Judgment delivered on 15 August 2003

Before

HIS HONOUR JUDGE J BURKE QC

MR M CLANCY

MRS M MCARTHUR



MR S DEMAN APPELLANT

(1) UNIVERSITY OF BRADFORD
(2) PROFESSOR GRACE ALDERSON
RESPONDENT


Transcript of Proceedings

JUDGMENT

Revised


    APPEARANCES

     

    For the Appellant MR JOHN DAVIES QC
    (Of Counsel)
    Instructed by:
    Messrs Thomas Dunton Solicitors
    217-219 High Street
    Orpington
    Kent ER6 ONZ
    For the Respondent MR ANDREW HILLIER QC
    (of Counsel)
    Instructed by:
    Messrs Eversheds Solicitors
    Cloth Hall Court
    Infirmary Street
    Leeds LS1 2JB


     

    HIS HONOUR JUDGE J BURKE QC

  1. Mr Deman appeals against a decision of an Employment Tribunal sitting at Leeds, chaired by Mr C T Grazin, and sent to the parties with Extended Reasons on 8 March 2002, that his complaints of discrimination against the first Respondent, the University of Bradford, and the second Respondent, Professor Grace Alderson, a professor of biochemistry at the University and the University's Pro Vice-Chancellor, be dismissed.
  2. For present purposes the background facts can be briefly stated. In February 1999 the Management Centre, a department of the University which was, as the Tribunal found, entirely dependent for both its funding and its reputation upon the quality of the research work carried out by its professional staff, wished to strengthen its output of research work and to enhance its reputation. A decision was made to recruit additional staff; research capability was at the forefront of the centre's requirements for such additional staff. An advertisement was placed, seeking to recruit to the Management Centre academic staff to positions as Professor, Senior Lecturer and Lecturer; at the time the Centre had not decided how many of each would be appointed.
  3. Mr Deman, who is an academic whose history is described in detail in paragraphs 16 to 20 of the decision of the Tribunal, applied for all three positions. He was at the time of his applications a Senior Lecturer in Finance at the University of Greenwich which, it was conceded, was the equivalent to the post of Lecturer at a university such as Bradford.
  4. Mr Deman was not shortlisted for appointment as a Professor; his complaint in respect of that application was out of time; as a result it had been dismissed at an earlier Tribunal hearing; and there has been, so far as we are aware, no appeal against that decision. He was not shortlisted for appointment as a Senior Lecturer; he was shortlisted for appointment as a Lecturer but, after a presentation and interview on 14 May 1999, he was not appointed.
  5. His claims before the Tribunal from whose decisions the present appeal is brought were that in failing to shortlist him for the position of Senior Lecturer and in failing to appoint him to the position of Lecturer the University and (in relation to the lectureship only) Professor Alderson had discriminated against him on the grounds of his race, that in relation to his non-appointment as a Lecturer he had been discriminated against on the grounds of his sex and that the Respondents' failure to appoint him to the positions of Senior Lecturer and Lecturer constituted unlawful victimisation.
  6. The Tribunal, in a lengthy and detailed decision, after a hearing lasting six and a half days in January-February 2002, dismissed all of these complaints.
  7. Mr Deman put in a Notice of Appeal which consists of 15 pages and some 45 paragraphs of complaints of bias on the part of various Chairmen of the Employment Tribunal, including Mr Grazin, and on a wider basis and makes many criticisms of the procedures adopted by the Tribunal which heard the complaints now the subject of this appeal.
  8. However, at the Preliminary Hearing of the appeal on 14 January 2003 all of the grounds of appeal set out in Notice of Appeal were held to be unarguable and therefore were not permitted to go forward to a full hearing, with the exception of grounds identified in the Skeleton Argument of Counsel put before the Preliminary Hearing which went to Mr Deman's case of bias on the part of the Tribunal which heard his case.
  9. Mr Deman was ordered to file an amended Notice of Appeal limited to those grounds which were allowed to proceed; he did so; and the appeal has been argued before us on the basis of the grounds set out in that Amended Notice.
  10. Because Mr Deman's Notice of Appeal included allegations of misconduct and bias on the part of the Tribunal he was required, pursuant to the Employment Appeal Tribunal's Practice Direction, to swear an affidavit in support of those allegations. He did so on 15 July 2002. He also put in affidavits from a Mr Graham (who deposes that he is a professional expert on bias) and from a Mr McCue; but we were invited only to look at those parts of Mr Deman's affidavit which relate to the specific grounds now advanced on his behalf; and we were expressly invited not to consider the affidavits of Mr Graham and Mr McCue at all. Mr Deman's affidavit was, of course, sent to the Chairman of the Tribunal for his comments; those comments were provided on 15 November 2002. Finally on 28 April 2003 an affidavit was sworn by Mr Rice-Birchall from the solicitors acting on behalf of the Respondents. Objection was taken on behalf of Mr Deman to some of the contents of that affidavit; but, with co-operation, agreement was reached as to the extent to which, in the relevant areas, we should consider its contents.
  11. Mr Deman was represented before us by Mr John Davies QC; the University and Professor Alderson were represented by Mr Andrew Hillier QC. We are grateful to both for their helpful submissions.
  12. Mr Davies made it clear at the Preliminary Hearing that the suggestion of institutionalised bias or discrimination in the Employment Tribunal system made in Mr Deman's Notice of Appeal and affidavit was not pursued and that the arguments in support of the appeal were limited to the hearing of Mr Deman's claims by the particular Tribunal from whose decision the present appeal is brought.
  13. The Law

  14. There is a well-established distinction between 'actual bias' and 'apparent bias'; in R v Gough [1993] AC 646 Lord Goff of Chievely, at pp 659E to 660A, explained that, because of the difficulties in proving actual bias and the need in the interest of the public to ensure that there should be confidence in the integrity of the administration of justice, in cases in which bias is alleged it is necessary to look beyond actual bias and to consider whether there was such a degree of possibility of bias (i.e. unfairly regarding one party with favour or disfavour as per Lord Gough at page 670F), that the decision in question should not be allowed to stand – that is to say whether there was apparent bias.
  15. The current test for apparent bias has been the subject of considerable debate; but that debate has been brought to a conclusion by the decision of the House of Lords in Porter v Magill [2002] 2 AC 357 in which Lord Hope of Craighead, with whom, on this issue the other members of the House agreed, said at page 494, paragraphs 102 to 103:
  16. 102 "The Court of Appeal took the opportunity in In Re Medicaments and Related Classes of Goods (No. 2) [2001] 1 WLR 700 to reconsider the whole question. Lord Phillips of Worth Matravers MR, giving the judgment of the court, observed, at p. 711A-B, that the precise test to be applied when determining whether a decision should be set aside on account of bias had given rise to difficulty, reflected in judicial decisions that had appeared in conflict, and that the attempt to resolve that conflict in R v Gough had not commanded universal approval. At p. 711B-C he said that, as the alternative test had been thought to be more closely in line with Strasbourg jurisprudence which since 2 October 2000 the English courts were required to take into account, the occasion should now be taken to review R v Gough to see whether the test it lays down is, indeed, in conflict with Strasbourg jurisprudence. Having conducted that review he summarised the court's conclusions, at pp. 726-727:
    "85 When the Strasbourg jurisprudence is taken into account, we believe that a modest adjustment of the test in R v Gough is called for, which makes it plain that it is, in effect no different from the test applied in most of the Commonwealth and in Scotland. The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased."
    103 I respectfully suggest that your Lordships should now approve the modest adjustment of the test in R v Gough set out in that paragraph. It expresses in clear and simple language a test which is in harmony with the objective test which the Strasbourg court applies when it is considering whether the circumstances give rise to a reasonable apprehension of bias. It removes any possible conflict with the test which is now applied in most Commonwealth countries and in Scotland. I would however delete from it the reference to "a real danger". Those words no longer serve a useful purpose here, and they are not used in the jurisprudence of the Strasbourg court. The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased."
  17. In the light of these clear statements of the law there was agreement between Mr Davies QC and Mr Hillier QC as to the appropriate test which we have to apply, namely:
  18. "Would the fair-minded and informed observer, having considered the facts, conclude that there was a real possibility that the tribunal was biased."

    in the sense that it unfairly treated one party with favour or another with disfavour.

    The Grounds of Appeal

  19. There are eight grounds set out at paragraph 6 of the amended Notice of Appeal; the first, at paragraph 6.1, asserts that the Tribunal was biased against Mr Deman within the meaning of the test set out by Lord Hope in Porter v Magill in the respects particularised at paragraphs 6.2 to 6.8 cumulatively or individually. In paragraph 6.2 to 6.8 Mr Deman puts forward seven individual occurrences during the course of the hearing as giving rise to a real possibility of bias. Of those seven occurrences, the complaints set out in paragraphs 6.3, 6.4, 6.7 and 6.8 are based wholly on procedural or case management decisions taken by the Tribunal at various stages of the hearing and before their decision was put into writing and sent to the parties.
  20. In the original Notice of Appeal Mr Deman sought to attack each of those decisions as amounting to or containing errors of law; but the Employment Appeal Tribunal at the Preliminary Hearing rejected all of Mr Deman's criticisms of the Tribunal, save in relation to bias; there has been no appeal against the decision of the Employment Appeal Tribunal made at the Preliminary Hearing; and as between the parties it is now conclusively established that none of those decisions was wrong in law or involved any procedural impropriety.
  21. Mr Hillier submitted that insofar as Mr Deman's case of bias was based on procedural decisions, it was not permissible for him to invite us to infer bias unless he could show that those decisions were legally flawed and that, because it had been conclusively established that they were not so flawed, Mr Deman could not now rely on them for the purposes of his case of apparent bias. The objective and informed observer, it was submitted, could not conclude that there was a real possibility of bias from a procedural decision which was sound in law.
  22. To illustrate his point Mr Hillier referred us to the grounds set out in paragraph 6.4 of the amended Notice of Appeal in which it is alleged that the Tribunal limited to an unreasonable extent the evidence which they permitted Mr Deman to adduce concerning an issue which arose between him and the University, before his application for positions in the Management Centre, over the University's declining to award him a PhD and the University's subsequent investigation of his grievance as to his failure to obtain that PhD in which Professor Alderson played a part.
  23. Mr Davies, in the course of his submissions to us, accepted that the extent to which such evidence was to be canvassed before the Tribunal, which was, of course, not tasked to resolve issues as to the PhD, was a matter for the Tribunal's discretion and that a line had to be drawn at some point.
  24. Mr Hillier's argument was that, if the Tribunal had not drawn that line at a point which was impermissible as a matter of law, no question of apparent bias could arise or be open for argument. He submitted that a Tribunal in making procedural or case management decisions should not have to do so looking over their shoulders lest, even if they made decisions which were justifiable in law, they might be open to an allegation of bias.
  25. He reminded us that, as paragraph 11 (6) (b) of the Employment Appeal Tribunal's Practice Direction of 2002 makes clear, Chairmen and Employment Tribunals are obliged to observe the overriding objective and are given wide powers and duties of case management.
  26. Mr Hillier acknowledged that there is no authority which bears directly on his part. He referred us to Adams and Raynor v West Sussex County Council [1990] IRLR 215 in which the EAT held that an appeal against a decision of the Tribunal on an issue as to disclosure of documents could only succeed if the Tribunal had acted outside their powers, or had exercised their discretion in breach of legal principles or if the exercise of their discretion could be attacked on what are familiarly called "Wednesbury principles".
  27. In Noorami v Merseyside TEC Ltd [1999] IRLR 184 the Court of Appeal set out the law in similar terms; Henry LJ, with whom Thorpe and Beldam LJJ agreed, said at paragraph 32:
  28. 32 "I am satisfied, contrary to what the Employment Appeal Tribunal found, the Tribunal were here exercising the classic discretion of the trial judge in the issue of witness summonses and in like matters. Such examples of such a discretion lie not only on the issue of witness summonses but whether to grant an adjournment or whether to order the trial of a preliminary issue etc. These decisions are entrusted with the discretion of the court at first instance. Appellate courts must recognise that in such decisions different courts may disagree without either being wrong, far less having made a mistake in law. Such decisions are, essentially, challengeable only on what loosely may be called Wednesbury grounds, when the court at first instance exercised a discretion under a mistake of law, or disregard of principle, or under a misapprehension as to the facts, where they took into account irrelevant matters or failed to take into account relevant matters or where the conclusion reached was "outside the generous ambit within which a reasonable disagreement is possible."
  29. Mr Davies submitted that bias could be inferred from procedural matters and indeed that both R v Gough (where a juror knew the defendant's brother) and Porter v Magill (where the statutory auditor had announced his provisional findings at a press conference) were examples which demonstrated the correctness of that submission. He further submitted that the EAT at the Preliminary Hearing had not eliminated Mr Deman's case of bias arising from the Tribunal's procedural decisions but had, at paragraphs 8 and 9 of its decision, positively recognised that that case was arguable.
  30. Mr Hillier, Mr Davies submitted, was seeking to go behind the permission given to Mr Deman at the Preliminary Hearing to proceed to a full hearing on the grounds put forward in the amended Notice of Appeal. As to Adams v Raynor and Noorami, Mr Davies submitted that while the grounds on which the EAT may interfere with a Tribunal's exercise of their discretion on a procedural matter are very limited, the fair-minded and informed observer whose hypothetical views are, for the purpose of assessing a case of apparent bias, to be ascertained is not deciding whether an exercise of discretion does or does not contain an error of law. It was, he submitted, open to such an observer to conclude that there was a real possibility of bias in the case of any such procedural decision, whether lawfully reached or not; and from an accumulation of such decisions.
  31. In our judgment, Adams v Raynor and Noorami (and there are other authorities to the same effect) set out the principles which apply where a procedural decision of a Tribunal is attacked on conventional grounds; they do not touch on any question of bias and do not provide any support for Mr Hillier's argument.
  32. Equally, while R v Gough and Porter v Magill might be said to have involved procedural matters, they did not involve procedural decisions on the part of a Court or Tribunal; still less did they involve such decisions which had been had by an appellate Tribunal not to have involved any error of law; thus they do not provide any support for Mr Davies' argument.
  33. We have to decide this issue in what appears to us to be a "green fields" situation. Our conclusion is that, in the absence of something said or done by the Tribunal which might indicate to the fair-minded and informed observer that there was a real possibility of bias, such an observer could not properly conclude that there was any such possibility from the making by the Tribunal of a procedural decision which was not made in error of law. There would, in such cases, be no material which such an observer could properly treat as indicating or giving rise to an inference of a real possibility of bias.
  34. However, we take a different view about the conclusion properly open to such an observer in circumstances in which the Tribunal have made a number of such decisions against one party or in favour of another party. It has to be borne in mind that such procedural decisions usually involve the exercise of a discretion with which an appellate Court or Tribunal will only interfere on very limited grounds. It is therefore open to a Tribunal without error of law repeatedly to exercise their discretion against one party or in favour of another without the exercise of their discretion being open to attack on conventional grounds; yet if in one case marginal decisions involving the exercise of discretion always or regularly go against one party, it is possible that the fair-minded and informed observer might conclude that there was a real possibility of bias. Such cases would of necessity be very rare; apparent bias is only established if such observer not only might but would conclude that there was a real possibility of bias; but it does not seem to us that, where there has been a series of procedural decisions which have gone against one party, it would be right to conclude as a matter of law that a case of apparent bias could not be admitted at all in circumstances in which those decisions had been held not to have been made in error of law on grounds other than bias.
  35. On the other hand, the fact that a procedural decision was not made in error of law must, in our judgment, be of considerable significance to the mind of the fair-minded and informed observer when he comes to consider whether there was or was not a real possibility of bias; and that must be so when he comes to consider such decisions individually and cumulatively.
  36. Accordingly, we do not accept Mr Hillier's submission that the grounds of appeal which we have identified should not be open to argument at all and should be rejected without examination of their merits. However, even if we had accepted Mr Hillier's submission, we would nevertheless have proceeded to examine those grounds on their merits in case we had taken an erroneous view of the law. We proceed, therefore, to consider the merits of each individual ground of appeal; and having done so we will then consider those grounds cumulatively.
  37. The "Racism Remark": Amended Notice of Appeal Para. 6.2

  38. Mr Deman complains that, in the course of the hearing, the Chairman said to Mr Titterington, an academic who acted as Mr Deman's representative until the afternoon of 1 February 2002, the sixth day of the hearing:
  39. "Mr Titterington, racism is not terribly helpful, I am not looking for racism."

    The Chairman, in his comments upon Mr Deman's affidavit, accepts that he made such a remark; and Mr Rice-Birchall in his affidavit does not dispute that some such remark was made.

  40. Mr Davies submits that, in a race discrimination case, evidence of racism on the part of the alleged discriminator can never be excluded as irrelevant; such evidence makes it more likely that the specific act or acts complained of involved discrimination and is material to the acceptability of such explanation of the acts complained of as is put forward by the alleged discriminator.
  41. It is clear from the passages in Porter v Magill, to which we have referred and in particular the citation therein of the words of Lord Phillips MR in In Re Medicaments, that the Court or Tribunal which has to assess cases of apparent bias must consider all the relevant circumstances; in the case of any allegation of apparent bias it must be important to consider the context in which what is said to amount to an indication of such bias arose.
  42. It is common ground that the Chairman made the impugned remark towards the end of the first day of the Tribunal's hearing, after there had been considerable discussion as to what were the issues which the Tribunal had to decide and when Mr Deman, or Mr Titterington on his behalf, was seeking to press the Tribunal to consider alleged institutional racism within the University and, in particular, to examine by way of detailed evidence the University's dealings with Mr Deman in relation to the PhD and Professor Alderson's role in the grievance process which arose from Mr Deman's failure to obtain that PhD.
  43. The Chairman in his comments explains that he was referring to the substantial distinction between institutional racism on the one hand and race discrimination, as defined by the Race Relations Act 1976, on the other. That distinction is, in our judgment, important. Proof of institutional racism is neither necessary nor sufficient for the establishing of race discrimination under the 1976 Act.
  44. While we accept, of course, that evidence that a particular individual alleged to have been guilty of an act of race discrimination is racist is relevant to a claim brought before the Tribunal in respect of that act, institutional racism of itself is not so relevant; and a Tribunal hearing a complaint of race discrimination is entitled to be careful to limit the extent to which allegations of institutional racism can be developed before them and to encourage the parties to focus on the specific issues which fall to be resolved.
  45. A finding by the Tribunal in the present case that the University was institutionally racist would not have been relevant of itself to the complaints made by Mr Deman; to suggest that it would have been relevant involves a confusion between the University as an institution on the one hand and those who are alleged to have been involved in the decisions not to shortlist Mr Deman for the position of Senior Lecturer and not to appoint him to the position of Lecturer on the other. Whether Professor Alderson was guilty of race discrimination or victimised Mr Deman were issues which the Tribunal had to decide but which involved a much narrower focus than that of generalised racism within the University.
  46. It is for these reasons, no doubt that the EAT at the Preliminary Hearing took the view, expressed in paragraph 11 of its judgment, that, leaving aside bias, there was no error of law in the Tribunal making it clear that they were (or the Chairman was) not looking for racism. They were indeed looking not for racism but to decide whether the individual decisions upon Mr Deman's applications for employment were made on the basis of race discrimination as defined by the 1976 Act on the part of those who made those decisions.
  47. In the context which we have set out, the Chairman's remark was not one, in our judgment, which could properly be regarded by the fair-minded and informed observer – who must be taken to have properly understood the distinction between institutional racism and race discrimination as defined by the 1976 Act – as an indicator of a real possibility of bias.
  48. It was, in our judgment, a remark properly made by the Tribunal to direct the attention of those before them to what were and were not the real issues in the case.
  49. The Limit of the Investigation: Amended Notice of Appeal Paras. 6.3 and 6.4

  50. We can properly take these two grounds together, as does Mr Davies' Skeleton Argument. Mr Deman relies, for these grounds, on the remark made by one of the lay members during the course of Mr Deman's evidence that "we do not have to hear anything, prior to the Applicant's job application for employment at the University of Bradford" and, secondly, on the fact that the Tribunal limited "to an unreasonable extent" the evidence which Mr Deman was permitted to adduce relating to the PhD and his subsequent grievance.
  51. In his comments the Chairman has said that he has no recollection of the lay members making such a remark but would not deny that it was said; Mr Rice-Birchall has been unable to find any note of any such remark; and it is important to note that the lay members have not been invited to comment on Mr Deman's affidavit. However, we will proceed, as did Mr Hillier, on the assumption that the remark was made.
  52. The context is, again, important. It was that Mr Deman had put forward a very lengthy witness statement, the majority of which related not to the rejection of his application for appointment as a Senior Lecturer or as a Lecturer but to the issue of the PhD and his grievance relating thereto.
  53. The Tribunal were aware, as appears from paragraph 2 of their decision, that Mr Deman had brought proceedings against the University in the Leeds County Court in respect of the PhD, which proceedings had been struck out on procedural grounds. Clearly Mr Deman was seeking to relitigate his claims in those proceedings in the course of the Tribunal's hearing.
  54. The decision records, at paragraph 10, that, at the conclusion of the first day of the hearing, while Mr Deman was only a small way into his evidence relating to the PhD, out of concern that detailed consideration of all the proposed evidence on the PhD issue would unnecessarily lengthen the hearing, the Tribunal asked Mr Deman to put his points on the PhD issue into a one-page statement. This was done overnight; thirteen points were put forward; and the Tribunal expressly stated in their decision that they had taken note of those points during their deliberations.
  55. At the Preliminary Hearing the EAT, at paragraph 12 of their judgment, held that the contention that the Tribunal had erred in law in limiting the investigation of the PhD issues was "unarguable"; we agree. The Tribunal was clearly entitled to confine the extent to which the history of a previous dispute between Mr Deman and the University and Professor Alderson was investigated. The exercise of the Tribunal's discretion in this respect has been held to have been entirely appropriate.
  56. The remark made by the lay member is likely to have been, in our judgment, an expression of no more than a preliminary reaction to or view of the attempt by or on behalf of Mr Deman to go into the PhD issues in detail; as such, it was no more than the type of remark which is often made by a Judge or a Tribunal Member in the course of a hearing. As it turned out, the Tribunal did not disallow all material as to events prior to Mr Deman's applications; evidence, appropriately limited, as to the PhD issue was admitted from Mr Deman and also from a Mr Joshi, called on behalf of Mr Deman; the assertion by the Tribunal that they had considered Mr Deman's case on the PhD issue is not challenged.
  57. In these circumstances, there is no reason why the fair-minded and informed observer, considering the hearing as a whole, should have or could reasonably have regarded the remark made by the lay member as indicative of the real possibility of bias.
  58. The limitation of the extent of the investigation of the PhD issue, entirely appropriate as in law it has been held to have been, likewise would not, in our judgment, have been seen by the fair-minded and informed observer as an indicator of the real possibility of bias. It would or should have been seen by such an observer, as indeed it was, as a proper restriction of the evidence as to events which had occurred before Mr Deman applied for the positions as Senior Lecturer and Lecturer.
  59. The "Sympathy" Remark: Amended Notice of Appeal Para. 6.5

  60. In paragraph 22 of his affidavit Mr Deman states that the Chairman said during the course of the hearing, referring to the non-white lay member:
  61. 22 "Mr Taj is a lay member of Pakistani origin and he would be very sympathetic to you thereby".

    Mr Deman is of Indian ethnic origin. He complains that this comment was patronising and was made at a time when the armies of India and Pakistan were facing each other and there was a great deal of hostility between those two nations, and that the Chairman:

    "continued his colonial legacy of 'divide and rule'"

  62. The Chairman in his comments on Mr Deman's affidavit accepted that some such comment as to the status of Mr Taj might have been made. He says that he gave no thought to the relationship between India and Pakistan at that time and does not know what the reference to 'colonial legacy' meant.
  63. Mr Rice-Birchall exhibited to his affidavit notes taken by two trainees from his office who attended the Tribunal at different times. One of those notes appears to record the Chairman asked the "Indian lay member to say something" and that the lay member then referred to his experience of racial matters. However, this note has not been put to the Chairman; and Mr Davies objected to it on that ground and on the basis that the Chairman did not dispute the version put forward by Mr Deman.
  64. Mr Hillier's approach was to regard the difference between the two versions as unimportant; and we will, in this case too, proceed on the basis of Mr Deman's version (although it is fair to the lay member to note that no comment has been sought from him or indeed from either lay member upon either version).
  65. Having established for the purposes of this appeal what was said, it is in our judgment next necessary to consider the context. Mr Davies submitted that the remark fell so far outside what was acceptable that the context did not matter; we do not agree; while a comment might so clearly manifest actual bias that the context would be immaterial, in considering a case of apparent bias an appellate court, as we have indicated above, is always likely to need to understand the context in which the impugned remark or conduct occurred in order to reach a safe conclusion as to the effect of such remark or conduct upon the fair-minded and informed observer. In this case we have no doubt that it is both necessary and natural to ask why did the Chairman say that?
  66. It is not in dispute that the remark was made when Mr Deman had, in the course of the hearing, himself accused the Tribunal of bias and had alleged that the Tribunal were part of inherent racism in the Employment Tribunal system, a theme which is emphasised in Mr Deman's Notice of Appeal and affidavit. Mr Rice-Birchall in his affidavit states that Mr Deman was, at the material time, threatening to walk out; but that is in dispute; and we proceed on the basis that no such threat was expressly made at the relevant stage. However, the Tribunal could not have failed to be alive to that possibility and will inevitably have wished to reassure Mr Deman that they were not biased and thereby to defuse the crisis.
  67. Having regard to the context we take the view that the remark was plainly an attempt by the Chairman to rebut the allegation of bias and to seek to mollify Mr Deman by suggesting that one of the lay members could be expected to be or was very sympathetic towards him.
  68. Mr Davies characterised the remark in the amended Notice of Appeal and in argument as "extraordinary" and "inexcusable"; he asserted that the remark:
  69. (a) implicitly suggested that the other two members of the Tribunal were not sympathetic to Mr Deman

    (b) displayed a patronising and insulting approach to Mr Deman (and Mr Taj, the lay member); and

    (c) displayed ignorance of ethnic, cultural and religious differences (and political and military conflict) in the sub-continent.

    He suggested that this was one of those unguarded remarks from which the true attitude of the speaker emerges.

  70. We have no doubt that the remark was ill-advised and clumsy; we do not, however, accept that, as an unguarded remark which it appears to have been, it revealed a bias or the possibility of bias against Mr Deman or that the fair-minded and informed observer would conclude from the making of the remark that there was a real possibility of such bias.
  71. We have no doubt that the words used, expressing the view that Mr Taj would be very sympathetic to Mr Deman, could not reasonably be taken to indicate that the other two members of the Tribunal were unsympathetic or were not prepared or were not intending to reach their decisions on an open-minded basis.
  72. To say that one of the three members of a Tribunal is very sympathetic to one party is not an indication that the other two members are unsympathetic or antagonistic. Whether the words were patronising or insulting or based on ignorance we do not need to decide; if they had all of those negative qualities, they were nonetheless separately or together not in our judgment indicators of bias.
  73. The issue before us is not whether the words have been accurately characterised by Mr Davies or Mr Deman but whether they were such as to indicate to the observer with the attributes which we have referred to several times in this judgment that there was a real possibility not of a patronising, insulting or ignorant attitude but that the Chairman, or any other member of the Tribunal, would unfairly regard Mr Deman's case with disfavour or the Respondents' case with favour.
  74. We are wholly satisfied that, whatever adjectives may be chosen to describe the remark, it was not a remark which indicates a real possibility of bias against Mr Deman. Indeed, if it was in any sense an indicator of bias, it would have been an indicator that Mr Taj might have been biased in favour of Mr Deman.
  75. Mr Titterington: Amended Notice of Appeal Para. 6.6

  76. The Tribunal record, in paragraph 12 of their decision, that towards the end of the sixth day of the hearing and during the course of Mr Titterington's cross-examination of Professor Alderson, an unfortunate public difference of opinion arose between Mr Titterington and Mr Deman, in the course of which Mr Deman stood up and shouted loudly at Mr Titterington. The Tribunal adjourned in the hope that their difference could be resolved; but no resolution was achieved. As a result Mr Titterington asked to see the Tribunal in chambers and was allowed to do so without any representative of the defendant or Mr Deman being present. It seems that the Tribunal and Mr Titterington were alone. Mr Titterington asked for and was granted leave to withdraw from the proceedings; and he played no further part.
  77. This turn of events was doubly unfortunate for Mr Deman; firstly, he lost his representative; secondly, Mr Deman had wanted to call Mr Titterington as a witness as part of his case; there was an issue as to whether his evidence was relevant; it had been agreed that that issue should be resolved after Professor Alderson's evidence had concluded, at which point, if Mr Titterington's evidence was regarded as relevant, he could have been called.
  78. However, this double misfortune is not suggested to have spoken of bias. Mr Deman in paragraph 28 of his affidavit asserts that the Chairman released Mr Titterington so that:
  79. 28 "…he could carry out his agenda of dismissing my claim without any challenge from Mr Titterington"

    But Mr Davies put Mr Deman's case forward in a more limited manner, on the basis that the Tribunal should not have seen Mr Titterington privately.

  80. There is no evidence before us as to what occurred when Mr Titterington met the Tribunal in chambers other than that of the Chairman. We were informed that Mr Deman or his representatives have had access to and had obtained an affidavit or witness statement from Mr Titterington, which was indeed present and in the hands of Mr Davies during the course of the hearing before us; but it was not provided to us and we know nothing of its contents. We know only that Mr Titterington asked and was given leave to withdraw.
  81. It is not difficult to understand why, in the circumstances we have described, Mr Titterington wished to make his application to withdraw and why the Tribunal were prepared to hear him in the absence of Mr Deman. Whether it was wise to proceed in that way may well be doubted; and it would have been more sensible had a member of the Respondents' team been present. In a court of law a judge in a like position might well have seen Mr Titterington in private but would probably have had a shorthand writer present; but there is of course normally no such facility in the Employment Tribunal.
  82. But, whatever the shortcomings of the procedure adopted, there is no evidence that either Mr Titterington or the Tribunal did or said anything improper or prejudicial to Mr Deman's case during their meeting in chambers; and from the evidence before us we see nothing in this instance which could lead the fair-minded and informed observer to conclude that there was any real possibility of bias. That independent observer would hypothetically have been present at the hearing; he would have seen what had taken place between Mr Deman and Mr Titterington; he would have seen the cause of Mr Titterington's desire to withdraw. It would not, in our judgment, strike such an observer as evidential of the possibility of bias that the Tribunal had allowed Mr Titterington to withdraw or that the Tribunal had done so as a result of his making a request to be permitted to do so in chambers when Mr Deman was not present.
  83. The Request for an Adjournment: Amended Notice of Appeal Para 6.7

  84. In paragraphs 13 and 14 of their decision the Tribunal set out what occurred after Mr Titterington's withdrawal. Mr Deman, who now of course had to represent himself, immediately sought an adjournment on the grounds that he needed to find alternative representation and that he had a medical certificate issued the previous day to the effect that he was suffering from vertigo/depressive illness.
  85. Mr Cavanagh QC on behalf of the Respondents resisted the application. The Tribunal rejected the application; they had heard the overwhelming bulk of the evidence over nearly six days and believed that it was not in the interests of justice that there should be any further delay in resolving the issues raised by Mr Deman's complaints.
  86. In deciding on Mr Deman's application for an adjournment, the Tribunal was exercising a broad discretion. Mr Davies expressly accepted that the lawfulness of that exercise was one of the matters considered at the Preliminary Hearing and that it was held to be unarguable that the Tribunal, in exercising their discretion as they did, erred in law (other than in relation to bias).
  87. That conclusion, in relation to this ground of appeal, as in the case of others, is not being treated as shutting out Mr Deman's argument as to bias; but that the Tribunal's refusal of an adjournment was not unlawful is necessarily material to the view we take of this ground of appeal; it cannot be ignored.
  88. The Tribunal were clearly entitled to decide on Mr Deman's application as they did; while, of course, having to represent himself created difficulties for him which could not be wholly alleviated by the Tribunal's willingness to ask questions of Professor Alderson as they thought necessary, Mr Deman was not unable to represent himself. The medical certificate did not say that he was unfit to attend the hearing or represent himself; and it was open to the Tribunal to take the view, and any Tribunal would in the circumstances have been likely to have taken the view, that the problem had arisen wholly as a result of Mr Deman's outburst which had so antagonised his representative that he felt he could not continue to appear for Mr Deman and had to withdraw from the case.
  89. The hearing was already overrunning its allotted span of five days; there were powerful reasons for the Tribunal's regarding it as contrary to justice for there to be any further delay in bringing the hearing to a conclusion; and the prospects of Mr Deman finding a replacement representative without a substantial adjournment must have been, at the highest, slim.
  90. We see nothing in the Tribunal's decision to refuse the adjournment and to press on which could be regarded by the fair-minded and informed observer as an indictor of a real possibility of bias on the part of the Tribunal. Such an observer, who would have observed the events which caused Mr Titterington to withdraw and would have appreciated the balancing exercise which confronted the Tribunal, is likely, in our judgment, to have been wholly unsurprised by the Tribunal's refusal of Mr Deman's application for an adjournment which resulted from that withdrawal.
  91. Refusal to Read Mr Deman's Written Submissions: Amended Notice of Appeal Para. 6.8

  92. After the Tribunal rejected Mr Deman's application for an adjournment, Mr Deman left the hearing. According to the Tribunal's decision, before he left he was expressly advised that the Tribunal would conclude the evidence on that day (Friday 1 February 2002) and that they would hear submissions on the following Monday, whether Mr Deman was present or not; and that if Mr Deman did not attend on the Monday he could submit written representations by post or fax, to be received by the Tribunal by 10.00 a.m. on that Monday. The Tribunal set out what they say happened at paragraphs 15 and 59 of their decision.
  93. Mr Deman did not attend on the Monday; nor were any submissions from him received by 10.00 a.m. or by 12.30 p.m. when Mr Cavanagh completed his submissions. After the midday break the Tribunal reconvened at 1.30 p.m. to discuss their decision; and after they had deliberated and reached their decisions, they began to dictate their decision at about 3.30 p.m. At 4.50 p.m., after the Tribunal had dictated the majority of their reasons, they received a fax from Mr Deman timed at 5.34 p.m. which the Tribunal sensibly took to be a mistake for 4.34 p.m. Accompanying the fax were twenty pages of written submissions from Mr Deman. In the faxed letter Mr Deman said that he had understood that the Tribunal would not be meeting formally that day but that he had now appreciated (apparently as a result of contact with the Tribunal office) that he had to put in his accompanying submissions in.
  94. The Tribunal, as they set out in paragraph 60 of their decision, did not look at Mr Deman's submissions. They took the view that Mr Deman had had spelled out to him what was required and could have been in no doubt that the Tribunal would move to consideration of their decision after receiving submissions on the Monday morning, as they had required. They were not prepared to read Mr Deman's submissions, arriving as they did after the Tribunal had effectively concluded their decision-making process.
  95. The Chairman's comments on Mr Deman's affidavit as to this incident do not substantially add to the account set out in the paragraphs of the Tribunal's decision which we have identified. He adds only that there was no reason for the Tribunal to be substantially inconvenienced in its decision-making process by the voluntary absence of Mr Deman and his representative.
  96. It is Mr Deman's case that he was not informed that written submissions should be provided by the Monday morning; so there is, between him and the Tribunal, an issue of fact; but we are not asked to resolve that issue, no doubt because:
  97. (1) it is not denied that Mr Deman understood that the evidence would finish on the Friday – there was only the completion of Professor Alderson's cross-examination outstanding after Mr Titterington had withdrawn and Mr Deman left;

    (2) Mr Deman must have appreciated that, by absenting himself for the remainder of the Friday afternoon and the following Monday, he was disabling himself from putting in oral submissions and, unless he sent them to the Tribunal in good time, from presenting written submissions before the Tribunal considered their decision; and

    (3) in assessing whether the conduct of the Tribunal would have indicated bias, it is highly immaterial that they believed, as the decision makes clear, that they had made it clear to Mr Deman what the requirements for the Monday morning were in the making of submissions.

  98. The thrust of Mr Davies' argument under this ground was, to use his words, that the sanction of refusing to look at Mr Deman's submissions was out of all proportion to Mr Deman's "crime" in providing them to the Tribunal when he did and that the Tribunal had, without hearing Mr Deman rejected his explanation that he had not realised the Tribunal would meet on the Monday. Mr Deman's default was not deliberate or contumelious and did not merit the treatment which it received.
  99. Mr Davies submitted that the Tribunal's explanation that there was no reason for them to be substantially inconvenienced was inadequate because the basis of the inconvenience is not stated, was indicative of a hostile attitude towards Mr Deman and was impermissibly concerned with the functioning of the Tribunal at the expense of justice. He also made the point that Mr Cavanagh had not provided his written submissions to Mr Deman.
  100. This is another area in which the Employment Tribunal was asked at the Preliminary Hearing to permit the appeal to go forward to a full hearing on the grounds of procedural impropriety. The Employment Appeal Tribunal refused to do so, concluding at paragraph 13 of its judgment that there was no procedural irregularity in relation to the Tribunal's handling of the written submissions. The Tribunal was satisfied that Mr Deman did know the true position as to the provision of submissions; they twice set that out in their judgment, at paragraphs 15 and 59.
  101. By the time the submissions arrived, the Tribunal had completed their deliberations and had made their decision; they were in the middle, or indeed beyond the middle, of the task of dictating the reasons for the decision upon which they had already agreed. If they had stopped at that stage and had, as a result, changed the decision which they had made in the absence of Mr Deman's submissions they would have been open to challenge from the Respondents' side – because they had already made up their minds. Mr Deman's submissions simply arrived too late. The course taken by the Tribunal was not procedurally irregular and did not involve a breach of the principles of justice, as the Employment Appeal Tribunal held at the Preliminary Hearing.
  102. The argument that Mr Cavanagh had not supplied his submissions to Mr Deman is, with respect to Mr Davies, misconceived. Mr Cavanagh was present on the Monday morning to put in any written submissions, to supply them to Mr Deman if he had been there and to make oral submissions; had Mr Deman been present he would have had the opportunity to read Mr Cavanagh's submissions, to respond to them and to provide his own written and oral submissions to the Tribunal. By his absence and by his failure to send his submissions as the Tribunal found they had required, he deprived himself of that opportunity.
  103. In the circumstances we do not regard the Tribunal's decision not to consider Mr Deman's submissions as disproportionate, indicative of a hostile attitude or as a denial of justice. More importantly, we are firmly of the view that the fair-minded and informed observer would not have regarded what occurred, if he knew the full facts - as he must be taken to have known, as indicative of bias on the part of the Tribunal, as opposed to indicative of the taking by the Tribunal of a firm but appropriate course.
  104. Accumulation

  105. We must now look at all of the seven occurrences which we have examined individually in detail in order to assess whether, in the context of the hearing as a whole, the fair-minded and informed observer would have inferred from those occurrences as a whole that there was a real possibility that the Tribunal was biased.
  106. It is apparent to us, and would no doubt have been apparent to the hypothetical fair-minded and informed observer, that the hearing was one which was from time-to-time fraught and difficult to handle. The Tribunal had to make numerous procedural or case management type decisions. None of them was a decision which the Tribunal was not, in the exercise of their discretion, entitled to make; and none of them appears to us to have been so close to the outside edge of the area of discretion as to have been only marginally within its proper exercise.
  107. We have dealt in detail with the remarks and other matters of which complaint has been made. We have been careful to consider the overall impression which what occurred would have made on such an observer; we are firmly of the view that, for all the reasons we have expressed in referring to the details of each individual ground of appeal, considering all the circumstances which we have set out in this judgment, the fair-minded and informed observer would not have taken the view, looking cumulatively at all of the grounds put forward, that there was a possibility of bias on the part of the Tribunal or any member of it.
  108. Conclusion

  109. For the above reasons this appeal is dismissed.


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