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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Lodwick v London Borough of Southwark [2005] UKEAT 0116_05_1306 (13 June 2005) URL: https://www.bailii.org/uk/cases/UKEAT/2005/0116_05_1306.html Cite as: [2005] UKEAT 0116_05_1306, [2005] UKEAT 116_5_1306 |
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At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)
MR P GAMMON MBE
MS P TATLOW
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR R P LODWICK (the Appellant in Person) |
For the Respondent | MR B UDUJE (of Counsel) Instructed by: London Borough of Southwark Legal Services South House 30-32 Peckham Road London SE8 8PX |
SUMMARY
Practice and Procedure
The only ground of appeal was apparent bias. The ET Chairman had, nearly 4 years before, made an order for costs against an applicant for whom the Appellant was acting as trade union representative at the hearing, inter alia on grounds of the Appellant's conduct of that hearing. Applying Locabail and considering the full facts, this of itself was insufficient to cause the Chairman to recuse himself and/or to found a case of apparent bias and there was nothing more.
THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)
"The Appellant lodges and serves upon the Respondent within 14 days of the seal date of this Order a fresh Notice of Appeal (in total substitution for the Notices previously served) setting out in the light of the decision of the Court of Appeal (in particular the statement in paragraph 13 of the judgment of the Court of Appeal that the Appellant's other purported grounds of appeal are not now pursued) precisely what ground or grounds are now pursued, setting out the same on one sheet of paper."
One sheet of paper was duly forthcoming in December 2004, and that slimmed down the appeal simply to two grounds. The first ground is what I might call the 'bias ground', and the second ground related to a case put as being equitable estoppel, but by reference to the facts of the case, to which we will return.
The Tribunal Hearing
"11. The Tribunal then identified with the Applicant the breach of contract complaint. At that stage the Applicant alleged that the breach of contract was the failure to allow or the refusal to accept resignation by the Applicant. The Respondent asserted that there was no resignation and therefore could be no breach. The Tribunal recorded the Applicant's complaint as formulated at that time, but when the Applicant gave evidence there was no evidence of any resignation indeed quite the contrary. His evidence was that he endeavoured to stay in the Respondent's employment despite having a full time job elsewhere and had tried a number of means to achieve that end. The one thing the Applicant hadn't done was resign."
12. Accordingly at the end of the Applicant's evidence in chief at an early stage on the second day the Tribunal discussed with the Applicant his breach of contract complaint pointing out that it was based on a false premise namely that he had resigned when all of his evidence was that he hadn't. The Tribunal Chairman, with the agreement of the other members of the Tribunal, suggested to the Applicant that his breach of contract claim might be better formulated by dealing with the issues which he appeared to want to address. The Chairman suggested that the breach of contract complaint could be formulated as a breach of the implied term of trust and confidence in that the Respondent failed to give proper consideration to the Applicant's requests for sabbatical leave/jobshare/reduced hours.
13. After much explanation to the Applicant and assurances from the Tribunal that any concession that he hadn't resigned wouldn't adversely affect his unfair dismissal complaints and after no objection was raised by the Respondent the Tribunal substituted for the previously formulated breach of contract complaint the complaint as identified by the Tribunal Chairman."
"… on 28 December 2000 there was a conversation between the Applicant and his immediate line manager Ms Crockford as the Applicant was crossing out his shifts on the rota. Ms Crockford made a note of the conversation as the Applicant informed her of his intention not to turn up for duty on Friday 5 January or Sunday 7 January but Ms Crockford said that as far as she was concerned he should be present for his duties as per the rota."
"21. Mr Uduje on behalf of the Respondent submitted that there was a total absence of evidence to support the allegations that the Applicant had been [dismissed] for trade [union] activities. In relation to the section 98 unfair dismissal he submitted that the reason for dismissal was the Applicant's continuing absence, which could not be overlooked in the circumstances that he had taken a full time job elsewhere, he had no intention of terminating his contract, his intention was to retain the benefits of local government service and he tried various means to do so. The Applicant was disciplined, he was dismissed for his conduct and that was a fair dismissal.
22. Turning to the breach of contract complaint Mr Uduje submitted that all of the evidence pointed to the requests made by the Applicant having been properly considered.
23. The Applicant made various submissions as to the facts in written submissions. He also submitted that there had been a better way of concluding the matter and that there should have been more dialogue in order to achieve an acceptable conclusion. The Respondent decided to dismiss and that he submitted was an unfair dismissal.
"The Tribunal is satisfied that the reason for dismissal and the sole reason was the Applicant's continuing non-attendance at work having got a job elsewhere."
"The Applicant alleged that the procedure was deficient in that there was no investigation prior to proceeding into the disciplinary process. The Tribunal found it hard to envisage what investigation was needed. The fact was that the Applicant was absenting himself from work. However the grievance hearing on 24 January effectively achieved the same purpose as would have been achieved by an investigatory meeting. At that meeting it was ascertained not only that the Applicant was absent but also he had no intention of attending in the future."
"36. That complaint related to the consideration by the Respondent of his requests made in November and December 2000. The Tribunal noted that the Applicant asked for an informal meeting and also noted that there was no meeting apart from the grievance hearing on 24 January:
i The Tribunal finds that the request for the sabbatical leave was carefully considered. There was no scheme for sabbatical leave as alleged by the Applicant. The Tribunal is satisfied that genuine reasons were given by the Respondent for the refusal in particular that it would be inappropriate to create a precedent in this sort of situation.
ii As to the reduction of hours the Tribunal notes that the Applicant was suggesting a job share but the other person would be doing 32 hours per week which to all intents and purposes was a full time job. It would have been pointless to discuss with the Applicant a reduction in hours when the Applicant was asking to do only 5 hours a week and when one shift is 7½ - 8 hours per shift.
37. The important aspect of this matter is that Mr Bucknill suggested to the Applicant that he go onto the bank. The Applicant did not take up that suggestion. We cannot see in the circumstances, in particular that the Applicant had got a new job, that there was much point in discussion and the Tribunal finds the Respondent gave proper consideration to the Applicant's requests. Accordingly the breach of contract claim fails."
The Bias Claim
"3. At the outset of the Tribunal hearing on 22 July 2002 the Applicant objected to the Chairman, Mr R Peters, sitting as Chairman of the Tribunal hearing his case. His objection was that he could not have a fair hearing before Mr Peters, as Mr Peters had been the Chairman of a differently constituted Tribunal which some four years earlier had made a decision in a case where the Applicant had represented a party. According to the Applicant, the Tribunal in that case had made comments in the written decision about the Applicant's (Mr Lodwick's) conduct at that hearing and costs were awarded against the party he represented. The Applicant raised no objection to the other members of the Tribunal.
4. Mr Uduje on behalf of the Respondent submitted that there was no substance put before the Tribunal to support the application and submitted that the Chairman should sit.
5. After an adjournment the Tribunal announced its decision that the Chairman should not stand down from being the Chairman of the Tribunal. The reasons for that were that the Chairman was only one of three members of the Tribunal all with an equal vote. Although the Chairman recognised the Applicant he had no recollection of his conduct of four years earlier or of any comments made in the decision in that case. The case was listed for five days, there was not another Chairman to hear the case, and if it had to be postponed it would have to be postponed until February/March 2003 [which we interpose would have meant a delay of some nine or ten months]. The Tribunal was satisfied that a fair hearing of the case was possible and that accordingly the Tribunal should proceed to hear the case."
10. (iii) Various documents were produced by the Applicant and his representative for the first time at the Tribunal hearing including some even after the close of the Applicant's case.
(iv) The cross-examination of the Respondent's main witness, Mr Ash, by Mr Lodwick went on for something approaching an hour with apparent disregard to the issues, such that the Tribunal members decided the Chairman should intervene in the questioning.
11 . The Tribunal is also satisfied that the Applicant and his representative acted unreasonably in the presentation of the complaints and pursuing those complaints at the Tribunal hearing. In particular:-
(i) A scatter-gun approach was used as evidenced by the fact that there were some twenty-one individual complaints: many of those claims should not have been presented in the first place, and by way of example the Tribunal would instance complaint (iii), (vii), (xii), (xiii) and (xxi) - a cursory examination of those complaints and the evidence available to support them would have shown that they were without merit …
(ii) Even when the problems were pointed out to the Applicant and his representative they persisted with the claims. For example the fourth Originating Application was not withdrawn until the end of the sixth day of the hearing despite the lack of evidence to support it.
12. However, the Tribunal members limited their consideration of the application for costs to those matters which had been raised by Mr Morton in his submissions in support of the application for costs. The Tribunal is satisfied that the Applicant and his representative acted frivolously and/or unreasonably in presenting many complaints in the first instance, pursuing those complaints and in the presentation of the case during the Tribunal hearing."
"11. … I only discovered shortly before entering the Tribunal room that Mr Peters was the Chairman for my case.
12. When I entered I caught Mr Peters' eye and it appeared to me that he did recognise me even before we had spoken. This impression was reinforced by what subsequently transpired.
13. I reminded Mr Peters of our previous acquaintance. Mr Peters' unconvincingly claimed, in an almost music-hall manner, that he did not remember me or Mr Aslam's case against the same Respondent.
14. I was very concerned that I would not be given a fair hearing in my own case. So I immediately applied, at the start that the Chairman stand down. I also asked for an adjournment so that I could prepare written submissions… My applications were refused.
15. Mr Peters and the two wing members had said or done nothing that constituted a guarantee that I would be given a fair hearing. On the contrary, the arbitrary manner with which Mr Peters rejected my application without any enquiry or deliberation created the opposite effect. I asked him to seek the guidance of the Regional Chairman. He refused. I believe that it is possible that Mr Peters had anticipated my challenge and already discussed this with the Regional Chairman because he acted as if he knew the Regional Chairman would back him."
"I can confirm that on 22 July, when the case commenced, I had a vague recollection of having seem Mr Lodwick previously. I would certainly have denied any recollection of the case of Mr Aslam, as that denial was true. I have no idea what Mr Lodwick means when he refers to "music hall manner".
It is correct that at the outset of the hearing on 22 July, Mr Lodwick objected to me sitting as Chairman and he did refer to the case four years earlier. The sequence of events is accurately set out in paragraphs 3-5 of the Reasons attached to the Tribunal's decision.
There was no request for an adjournment. If there had been such a request, I would have noted it and there is no note.
With regard to the comment at the beginning of paragraph 15, the converse is true, namely that nothing had been done or said to indicate that Mr Lodwick would not be given a fair hearing.
I do not recall and have no note that Mr Lodwick asked that I seek guidance from the Regional Chairman on his request that I should stand down. He might well have done and I might well have discussed the situation with the Regional Chairman during the adjournment. I have really no recollection and I would repeat that it is now nearly three years ago."
"When reminded by the Appellant of a previous encounter, the Chairman stated that he did not recall the occasion. I do not recollect and cannot imagine Mr Peters doing so in 'an almost music-hall manner'.
No formal application was made for the Chairman to stand down nor for an adjournment so that the Appellant could prepare written submissions. The Appellant did say that he objected to the composition of the panel, especially the Chairman because of a case some 3 to 4 years ago and did not think he (the Appellant) would get a fair hearing. He then went on to say he had no objection to the lay members. The Respondent's representative pointed out that no judicial reason had been given by the Appellant.
The Tribunal adjourned to discuss the matter. The Chairman consulted the Regional Chairman and the Tribunal members. The decision was made to go ahead with the existing composition by all the members of the Tribunal. The Appellant was reassured by the Chairman that the Tribunal all felt a fair hearing was possible and would ensure this was the case. The Appellant asked that his objection be on record so he could appeal."
"3. On 22nd July 2002 at the start of the hearing, Mr Lodwick raised an objection to the composition of the Panel. Mr Lodwick objected to the Chairman, Mr Peters, hearing the case. His concerns were based on the conduct and outcome of another case. Mr Peters sought clarification as to when that case was heard and Mr Lodwick informed him that it was four years' ago. Mr Peters stated that as he sat on a number of cases each year, it was not possible for him to recall each case and had no recollection of the case that Mr Lodwick was referring to.
4. When asked to clarify the nature and the basis of his objection, Mr Lodwick indicated that he was asking Mr Peters to stand down from the case and did not believe that he would have a fair hearing due to the fact that he had represented an Applicant whose complaints against the Respondent were dismissed by a Tribunal panel chaired by Mr Peters. Costs were subsequently awarded against the Applicant.
5. Mr Peters assured Mr Lodwick that he had absolutely no recollection four years after the event of the case. Mr Peters asked if Mr Lodwick objected to any of his colleagues (Wing Members). Mr Lodwick said that he did not believe that he had met any of the Wing Members before.
6. When asked to expand on his application, Mr Lodwick could not (or did not wish to) provide any further particulars to support his request for Mr Peters to stand down. The Respondent was then asked for any comments on the request. In response, Mr Uduje submitted, in the absence of further particulars, Mr Lodwick's application simply amounts to requests for the Chairman / Judge to stand down on the basis that he or she had previously determined in a case against the party and since that has never been a proper basis to disqualify a Chairman / Judge, the request had to be rejected.
7. Following an adjournment, Mr Peters stated that he had considered the objections made by Mr Lodwick. Mr Peters made reference to the fact that he was one member of a Panel of three Members, all of who had equal votes. He reiterated that he had no recollection of the previous case and, as such, had no fixed views about Mr Lodwick or the merits of his present claim.
8. The Tribunal rejected Mr Lodwick's application on the basis set out in paragraph 5 of the extended reason of the Tribunal's decision dated the 16th August 2002. It is important to note that Mr Lodwick did not produce the decision that he referred to where allegedly criticisms were made."
"This complaint is the subject of the fourth Originating Application. The evidence is inadequate to support the complaint and the tribunal would be minded to dismiss the complaint and not call upon the Respondent to respond. There was no evidence of either any difference of treatment or any causal link to the presentation of the first two Originating Applications. However the tribunal was persuaded that the … issue of the first two Originating Applications was a matter which could be tested by way of cross-examination of Mr Ash. However, during cross-examination of the Applicant the tribunal had heard the relevant evidence from the Applicant and had seen the written evidence as to the Applicant's attendance record and the overdrawn flexi time. The tribunal was also aware of the lack of evidence as to anything to link Mr Ash's dealings with the matters to the issue of the Industrial Tribunal proceedings or indeed evidence that Mr Ash was aware of those Tribunal proceedings. Accordingly the Tribunal warned the Applicant at that stage that although the tribunal was minded to allow the complaint to proceed in relation to the allegation of victimisation by Mr Ash concerning the Applicant's attendance and flexi time, the tribunal warned the Applicant that if this head of complaint failed and the tribunal considered that the Applicant had no reasonable grounds for making the complaint and had acted unreasonably in persisting in having the issue determined by the tribunal, then the tribunal would consider an award of costs against the Applicant."
Mr Morton's note, to which we have referred, records that at the end of this exchange between the Chairman and Mr Lodwick, Mr Lodwick, on Mr Aslam's behalf, did withdraw Particular (xix) and the Chairman made the not surprising response that that could and should have been done earlier.
18. The test as to bias was stated by Lord Hope of Craighead in Porter v Magill [2002] AC 357. Lord Hope stated at paragraph 103:
'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.'
That is the test which the Employment Tribunal were required to apply when deciding whether the Chairman should recuse himself. Before the Employment Appeal Tribunal, it was necessary first to test the Employment Tribunal's decision as to recusal in that way but also to consider the proceedings before the Employment Tribunal as a whole and decide whether a perception of bias had arisen.
19. This Court is at the disadvantage of not knowing what was said at the hearing when the Chairman decided not to recuse himself. [We now have, of course, a very much fuller picture.] It would in my view be likely to be unfair to one or other of the parties, and to the chairman and members of the Tribunal, to resolve that question without knowing what was said. I would invite the Employment Appeal Tribunal to exercise its powers in the manner contemplated in the Practice Direction before reaching its decision, thus giving the Appellant, the Respondents and the Chairman and members of the Tribunal the opportunity to say what happened. The question may then rise as to what, if any, enquiries should have been made by the Employment Tribunal before taking its decision as to recusal. It appears that the copy of the earlier Tribunal decision has been obtained by the Respondents from Tribunal records."
20. I do, however, state at this stage that I do not consider the first of the reasons stated by the Employment Tribunal as to why the Chairman need not stand down, that the Chairman "was only one of three members of the Tribunal all with equal vote," to be a good one."
And he deals there with that point, to which we have referred.
21. Detailed guidance is given in Locabail mentioned by the judge in his ruling, as to how the question should be approached. In the present context, I would specifically draw attention to the statement of this court presided over by the Lord Chief Justice, at paragraph 25 [we shall cite the whole of 25 in a moment]:
'The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection.'
I consider that principle to be an important one in the administration of justice and one which applies with at least as much force to previous adverse comments upon a representative as upon a party or witness. A party cannot normally expect a judge to recuse himself because the judge has previously made adverse comments about him, in the course of a case or cases, though the circumstances of each situation will need specific consideration. Neither can parties assume or expect that findings adverse to a party in one case entitle that party to a different judge or tribunal in a later case. Something more must be and, it is claimed in this case, is shown. As to the relevance of the result of cases in this context, it must be borne in mind that it is at least possible that a litigant or representative who has behaved unreasonably or worse in one case will do so in a later case in which he or she appears."
"25. It would be dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias. Everything will depend on the facts, which may include the nature of the issue to be decided. We cannot, however, conceive of circumstances in which an objection could be soundly based on the religion, ethnic or national origin, gender, age, class, means or sexual orientation of the judge. Nor, at any rate ordinarily, could an objection be soundly based on the judge's social or educational or service or employment background or history, nor that of any member of the judge's family; or previous political associations; or membership of social or sporting or charitable bodies; or Masonic associations; or previous judicial decisions; or extra-curricular utterances (whether in textbooks, lectures, speeches, articles, interviews, reports or responses to consultation papers); or previous receipt of instructions to act for or against any party, solicitor or advocate engaged in a case before him; or membership of the same Inn, circuit, local Law Society or chambers. By contrast, a real danger of bias might well be thought to arise if there were personal friendship or animosity between the judge and any member of the public involved in the case; or if the judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case; or if, in a case where the credibility of any individual were an issue to be decided by the judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person's evidence with an open mind on any later occasion; or if on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind; or if, for any other reason, there were real ground for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues before him."
"In most cases we think the answer one way or the other will be obvious, but if in any case there is real ground for doubt that doubt should be resolved in favour of recusal. We repeat every application must be decided on the facts and circumstances of the individual case, the greater the passage of time between the event relied on as showing a danger of bias and the case in which the objection is raised, the weaker, other things being equal, the objection will be."
"Something More"
"I do not believe the Respondent was given an easy ride [she must mean the Applicant). However, on more than one occasion the he spent time asking irrelevant questions and this was pointed out to him. He sometimes showed reluctance to answer when questioned himself. He also had to be told by the Chairman not to interrupt and talk over the Chairman and witnesses."
She concluded that the Chairman had not been partial in any way.
"The Tribunal also altered evidence given by the Respondent's witness, Mr H. Bucknill, under cross-examination."
and he then states his belief that when Mr Bucknill gave evidence he said that disciplinary action taken against him was unprecedented. He then continues as follows in his affidavit:
"However, when I made reference to Mr Bucknill's answer the following day, Mr Peters, after nervously and hurriedly shuffling through his own notes purported that Mr Bucknill had not said any such thing! Instead Mr Peters' claimed his record (which he did not pass round), showed that Mr Bucknill had remarked my actions have been unprecedented."
"Mr Bucknill did not say it was unprecedented for the London Borough of Southwick to commence disciplinary action … What Mr Bucknill did say was the Appellant's case was unprecedented, in that no one had before stated they were going to work five hours unilaterally. Mr Bucknill repeated this again in cross-examination. I do not recall the Appellant referring to this the next day or making any formal objection."
"I do recall saying that the actions of the Appellant were unprecedented in response to his question of me as to whether the actions of the Respondent were unprecedented in taking disciplinary action so soon after an authorised absence. I believe that the Chairman's recall as noted by the Appellant in his preliminary affidavit, was correct, rather than the version preferred by the Appellant."