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||BAILII case number:  UKEAT 0184_06_3011
||Appeal No. UKEAT/0184/06
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
||At the Tribunal
||On 9 November 2006
||Judgment delivered on 30 November 2006
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
MR P R A JACQUES CBE
MR J MALLENDER
|MR P HAMILTON CLAIMANT
|GMB (NORTHERN REGION)
Transcript of Proceedings
© Copyright 2006
|For the Claimant
||Mr Philip Engelman
Messrs Stefan Cross
|For the Respondent
||Mr Oliver Segal
The St Nicholas Building
St Nicholas Street
Practice and Procedure – Bias, misconduct and procedural irregularity
The claimant was disciplined by his union for acting contrary to the policy of the union. The union was conducting a campaign for equal pay for its female workers in certain public authorities in the North East. However, it took the view that it would not necessarily press for full compensation since this might lead to redundancies and a reduction in pay for other union members. Some women felt aggrieved at this approach and used the services of a private solicitor who undertook to seek full compensation. The claimant was a branch secretary. His wife, a shop steward, chose to do that and encouraged others to do so. It was alleged that he had directly or indirectly referred certain individuals to the private solicitor. He denied that this was so but the disciplinary body found against him and his appeal was unsuccessful. He alleged that he had been disciplined for failing to take steps to control the activities of his wife, but that in any event, disciplining him for assisting persons to pursue equal pay claims constituted victimisation contrary to section 4(1)(c) of the Sex Discrimination Act 1975. The Employment Tribunal dismissed his appeal. They held that he had been disciplined principally for his own conduct and that this did not constitute a breach of the section. After the initial five day hearing, but before submissions, the claimant sought to have a member of the Tribunal recuse herself because she was a senior officer in Unison, a union which was part of the campaign and had adopted a similar stance in relation to the equal pay strategy. It was alleged that the member knew various persons who had some role in the relevant events, and that she had a vested interest in the policy being upheld. It was alleged that there was both interest bias, and apparent bias. The Employment Tribunal rejected the application. The EAT held that they were right to reject the interest bias allegation, but that they ought to have acceded to the application that there was in the circumstances the appearance of bias sufficient to require recusal. Accordingly the appeal succeeded and the matter was remitted for a rehearing before a fresh Tribunal.
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
- The appellant to this appeal (who we shall hereafter call the claimant, as he was below) is an employee of South Tyneside Metropolitan Borough Council. He is currently a driver, having been continuously employed since 1978. He joined the GMB Union in May 1978. He was elected as shop steward and thereafter annually re-elected until 1990. In that year he was elected Branch Secretary of the newly-combined South Tyneside Branch. The office is held for a four year period. As branch secretary he was involved in recruitment campaigns and would represent members at meetings with their employers. He also sat on internal union committees.
- In 2002 the then regional officer negotiated an agreement with South Tyneside Council in respect of the claimant. The effect was that he was released to perform his union duties on a full time basis. The agreement established that he remained an employee of the council. Effectively, therefore he remained a full time employee but seconded to union business. He was provided with an office by the GMB.
- An issue of major importance for public service unions in the North East has been equal pay claims being advanced on behalf of various female workers. For some time there have been concerns about whether women have been receiving their right to equal pay. In 1997 there was a national agreement between local authority employers and unions to implement a single set of conditions for both white and blue collar workers pursuant to what is termed the 'Green Book'. Job evaluations were to be undertaken locally to meet the requirements of equal pay legislation. That, however, has not resolved disputes about alleged historic discrimination by local authorities against certain women members. An equal pay campaign was launched in 2003 by the GMB and certain other public service unions in relation to a number of public authorities in the North East.
- In order to advance this campaign, the GMB produced what was termed 'an activist pack' in 2003. The plan was that an equal pay questionnaire would be distributed to GMB members and that the shop stewards and other officers, including the claimant, would assist members in completing the relevant information. In particular, the members were asked to identify comparators against whom they wished to make equal pay claims.
- The GMB instructed solicitors, Thompsons, to advise and support the campaign. There is another solicitor operating in the north east, namely Stefan Cross, who was formerly a solicitor with Thompsons, who has also been taking claims on behalf of a number of women employed by local authorities. They included union members employed by the South Tyneside council. The questionnaire given to GMB members specified in terms that they could not be assisted, even if they were GMB members, if they went to another lawyer. It was pointed out that the GMB would not charge them to pursue their equal pay claim, whereas Stefan Cross would charge on a contingency fee basis and take a proportion of any compensation which they might gain.
- Guidance was also given to non-unionists who were encouraged to join the GMB and then have the union act on their behalf.
- There was a difference between Stefan Cross's strategy and that of the union. He was seeking full compensation including the whole of the arrears of any back pay to which his clients were entitled. The union strategy, by contrast, was described by the Tribunal as follows:
"The union's strategy, however, was to negotiate agreements for their members which addressed the disparity in pay. However, the union was also concerned to ensure job security for present and future workers. As a result a compromise might result in an agreement that the present workers would not receive the same level of compensation as they might receive if they pursued a claim on an individual basis before the tribunal."
So the union's position was that it preferred a collective strategy, taking into consideration the interests of the membership as a whole.
- The union saw the Stefan Cross campaign as at variance with and as undermining its own strategy. There is, we think it is fair to say, no love lost between the two camps. It was exacerbated by the GMB's concern that Stefan Cross was advising those whose claims were statutorily out of time to consider taking negligence actions against the union.
- As part of their strategy, the GMB and another public service union, UNISON, entered into an agreement with the Newcastle City Council to the effect that they would not use the terms of the new single status agreement to initiate equal pay claims. The single status agreement was the agreement that had been reached with effect from 1 April 2004 fixing job evaluations for white and blue collar workers in that council.
- The claimant's wife was a GMB shop steward. She was a cook in a school and also employed by the South Tyneside Council. She was very unhappy with the GMB approach to the equal pay claims and in particular the agreement made between the two unions and the Newcastle City Council. She was fearful that this or some similar approach would be adopted in South Tyneside. She therefore approached Stefan Cross. She told the Tribunal that she was the first person from the Council to have done so. She felt that the approach of the GMB in combination with Unison, was perpetuating sex discrimination and effectively undermining the claims of the women whilst protecting the earnings of the men. She began to seek to obtain recruits for the Stefan Cross camp. She arranged meetings which were addressed by Mr Stewart Hill who co-ordinated Mr Cross's activities under a campaign called "Action for Equality". She told the Tribunal that she had signed up with Stefan Cross without her husband's involvement in any way.
- In March 2004 the regional secretary of a third trade union, UCATT, wrote to the GMB's regional secretary, Mr Brennan, and alleged that the claimant was either directly or indirectly referring GMB female members to Stefan Cross. Mr Hamilton was approached by Mr Brennan, and denied the allegation and at that stage no further action was taken. Then in August the regional secretary of Unison, Gill Hale, also complained about his conduct. She said that she had received a letter via the Unison's South Tyneside branch from a Mrs McGlasham, a former Unison member, who said that she had visited Mr Hamilton in the GMB office and that he had advised her to see a solicitor privately and given her forms to complete. Mrs McGlasham was contacted and confirmed this account.
- Subsequently other individuals confirmed that Mr Hamilton had advised them to take their case to a private solicitor or had referred them to his wife who in turn referred them to Stefan Cross. One of these, Mrs Martin, produced a form on which Mr Hamilton had put his wife's name and home telephone number. Subsequently Mrs Martin wrote a letter in which she said that it was Mrs Hamilton and not Mr Hamilton who had given the contact number for Stefan Cross.
- The union carried out an investigation and this led to disciplinary action being initiated against the claimant. There was a disciplinary hearing before the regional committee of the union. Mr Hamilton denied the allegations. However, the committee concluded that Mr Hamilton had acted contrary to the policy of the union "in connection with the public services equal pay campaign" in directly or indirectly referring a GMB member and another to Stefan Cross. He was barred from holding office or any other representative position in the union for two years.
- There was a right of appeal, which the claimant exercised, to the Central Executive Council's appeal committee. The claimant was represented before that committee by Mr Hill. He was a GMB member and a former Unison official who had been expelled from that union some years before. He was working with Stefan Cross. The appeal was unsuccessful.
- The claimant alleged before the Employment Tribunal that he had been victimised for things done by reference to the Equal Pay Act 1970, contrary to s.4(1)(c) of the Sex Discrimination Act 1975. This provides as follows:
"A person ("the discriminator") discriminates against another person ("the person victimised") in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has –
(c) otherwise done anything under or by reference to this Act, or the Equal Pay Act 1970 ….."
- It seems that the claim was put in various ways. The principal basis of his complaint as recounted by the Tribunal was that the true reason for his being removed from office was not his own conduct but rather the fact that the union disapproved of Mrs Hamilton's behaviour in referring potential claimants to Stefan Cross and felt that he should have taken a tougher line with her. He put it colloquially in evidence, saying that he thought he had been removed from office because he "had failed to slap his wife down". He has always denied doing anything improper himself.
- However, an alternative argument advanced on his behalf was that even if the union were entitled to find that he had referred these persons to Stefan Cross in connection with their equal pay claims, they were not entitled to enforce their strategy by taking disciplinary action against him. In so doing they were contravening s.4(1)(c) and victimising the claimant.
- The Tribunal rejected these claims. They did not believe that he had been disciplined because he had failed to control his wife's activities at all. They concluded that he had been disciplined for breaking a policy of the union. It had nothing to do with the fact that claims were being pursued under the Equal Pay Act; he would have been disciplined for any action which he had deliberately taken at odds with union policy. They also held that merely referring someone to a private solicitor could not properly be described as an action taken "by reference to the Equal Pay Act 1970" and therefore fell out with the scope of s.4(1)(c). Accordingly, the victimisation complaints were rejected.
- The appeal is directed in part at these findings. But there is a separate and distinct appeal directed at the refusal of the Tribunal to discharge itself after an application to do so had been made by the claimant. We turn first to consider the circumstances of that particular complaint.
The composition of the Tribunal
- The case was initially heard over five days from the 9-13 January 2006. Oral submissions were made on the 30 January and the decision was notified to the parties on the 15 February. After the initial five day hearing, but before the reconvened hearing, the claimant had applied for the Tribunal to recuse itself on account of the apparent bias of Mrs Dunn. She was the lay representative drawn from the union side. An affidavit setting out the main areas of concern was adduced in evidence from Mr Hill, and argument on the issue was addressed before the Tribunal when it reconvened on the 30 January. The Tribunal rejected the application.
- It is necessary to set out the circumstances in which the application arose. It came to the attention of the Tribunal on the second day of the hearing that evidence might be given on behalf of the claimant by Mr Stewart Hill who, as we have said, had represented the claimant in his internal appeal. Mr Hill had formerly been a member of Unison. That was the union to which Mrs Dunn also belonged. She had had some involvement in his expulsion from the union, although to what extent is a matter of dispute, and she informed the chairman of that fact. The chairman drew the matter to the attention of the parties and said that if Mr Hill were to give evidence "it could give the Tribunal problems." Counsel for the claimant, Mr Engelman, said that he had decided it was not necessary to call Mr Hill to give evidence. At that point no objection was taken to Mrs Dunn continuing to sit as a member of the Tribunal.
- Mr Hill's affidavit had made various allegations about Mrs Dunn's connections with persons involved in the case. He recounted her posts within Unison; alleged that she knew well both Mr Butler and Ms Foster, the two branch secretaries of Unison at the South Tyneside branch; that she would have been involved in appointing Thompsons and in adopting the policy that only that firm should pursue the equal value claims; and he asserted that she had been directly involved in his personal expulsion from Unison.
- At the renewed hearing, and in the light of Mr Hill's affidavit, the chairman gave further details about Mrs Dunn's involvement in matters which might be said to have any relevance to the case. (He subsequently indicated that he had not been aware of the extent of her involvement in that union when the case began.) She had been a member of Unison and chairman of the Newcastle City Unison branch from 1988 to 2003. She sat on the Unison National Executive Committee and from 1995 to 2000 she was the chairman of the Finance & Resources Management Committee. She was first a national vice president of the union and then became president for the year 2001 to 2002. She remained on the National Executive Committee until she retired from the union when she retired from her employment with the Newcastle City Council in 2003.
- She had been involved many years earlier in the appointment by Unison of its solicitors, Thompsons, the same solicitors as were acting for the GMB. She had not, however, been involved in any of the negotiations between Unison and either Newcastle City Council or South Tyneside Council on any matter relating to what were termed 'the single status issues'.
- An application was made by the claimant to call Mr Hill to give evidence about Mrs Dunn's role in his expulsion and her views about the appropriate strategy for advancing the equal pay claims. His affidavit dealt with these matters. The Tribunal refused to hear such evidence taking the view that it was inappropriate that two tribunal members should hear evidence about the political views of the third. That was in our view plainly right and is consistent with the principle that the judge himself should not be cross examined on any disclosure about the nature and extent of his knowledge: see Locabail (UK) Ltd v Bayfield Properties Ltd  IRLR 96 at para 19.
- Before considering the Tribunal's decision, we shall first set out the legal principles which are material to the issues of bias which we have to address.
- The allegation is that there was both what is sometimes termed "interest bias" and also "apparent bias". The essential legal principles are not in dispute. We will deal with the two forms in turn, setting out what we consider to be the essential principles to which we must have regard.
- (1) Where the judge has an interest in the outcome of any litigation then the disqualification is automatic.
(2) A judge will be disqualified if he has any pecuniary or proprietary interest in the litigation, save where this is de minimis: see Locabail (UK) Ltd v Bayfield Properties Ltd  IRLR 96 at paras 8-10.
(3) The concept of interest, however, extends beyond pecuniary or proprietary interests. The rationale of the rule is that a man cannot be a judge in his own court and therefore it may extend beyond purely financial or economic considerations: see the decision of the House of Lords in R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2)  2 WLR 272 which however, turned on the very exceptional circumstances in that case.
(4) The class of non-financial interests where the rule will apply is very limited. Given the widening of the circumstances where apparent bias may successfully be alleged, it will be a very rare case where it will be necessary to have recourse to this principle: see the observations of Lord Hope giving the judgment of the Privy Council in Meerabux v Attorney General of Belize 2 WLR 1308 at para 22.
(5) Where the interest is not that of the judge himself or herself, but rather of somebody with whom the judge is associated, then the link must be
"so close and direct as to render the interests of that other person for all practical purposes indistinguishable from the interests of the judge himself"
see Locabail per Lord Bingham MR at para 10.
- (1) The concept of apparent bias is different. The rationale for this rule is not that a man must not be a judge in his own cause, but rather the related but distinct principle that justice must be seen to be done. The principle is designed to ensure that the public have confidence in the system of the administration of justice. As Lord Steyn said in Lawal v Northern Spirit Ltd  ICR 836, para 14:
"public perception of the possibility of unconscious bias is the key."
(2) The basic test to be applied is this: whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the Tribunal was biased. This was the test approved by the House of Lords in Porter v Magill  2 AC 357 following the analysis by the Court of Appeal in the case of Re Medicaments and Related Classes of Goods (No 2)  1 WLR 700.
(3) Accordingly, the court must first ascertain all the relevant circumstances which have a bearing on the allegation of bias; and then assess that information as would a fair-minded and informed observer. An appeal court is in as good a position as the original court to assume the vantage point of the fair-minded and informed observer and so must itself make the assessment: see the observations of Mummery LJ, with whose judgment Latham and Carnwath LJJ agreed in AWG Group Ltd v Morrison  EWCA Civ 6. Moreover, "the relevant circumstances are those apparent to the court upon investigation; they are not restricted to the circumstances available to the hypothetical observer at the original hearing ….": Flaherty v National Greyhound Racing Club Ltd.  EWCA 1117 at para. 27 per Scott Baker LJ.
(4) In determining the relevant circumstances, regard must be had to the judge's actual knowledge. There can be no real suspicion of bias in circumstances where the judge himself or herself does not appreciate the potential conflict of interest which is said objectively to give rise to the potential bias: see the observations of Lord Bingham in Locabail, para. 55.
(5) Where there is a real possibility of bias but that is not appreciated until sometime into the course of the trial, the fact that it would be extremely inefficient in terms of time and cost to abort the trial at that stage is strictly irrelevant. As Mummery LJ put it, in AWG Group Ltd v Morrison at para 29:
"In terms of time, cost and listing it might well be more efficient and convenient to proceed with the trial, but efficiency and convenience are not the determinative legal values: the paramount concern of the legal system is to administer justice which must be and must be seen by the litigants and fair-minded members of the public to be, fair and impartial. Anything less is not worth having."
(This principle does not, perhaps, sit too easily with certain dicta in Locabail at para. 58 which suggest that the consequences of recusal may in some cases be a material matter to consider. However, we think that would only be where the case is very marginal, in which case the precautionary principle which would favour not sitting would not apply with the same force as it would where the trial has not even started.)
(6) The possibility of bias can be waived but only in circumstances where the party waiving it is aware of all the material facts and of the consequences of the choice to him, and has been given a fair opportunity to reach an un-pressured decision: see Smith v Kvaerner Cementation Foundations Ltd (Bar Council intervening)  3 All ER 593 at para 26: "he must have acted freely and in full knowledge of the facts" per the Lord Chief Justice, Lord Phillips of Worth Maltravers, giving the judgment of the Court.
(7) When determining whether or not there is apparent bias, the court will consider whether any statement from a judge about his state of knowledge; but it should test that statement objectively in the light of all the evidence. It ought not to have regard to any protestations by the judge that he or she was not in fact biased: see Locabail, paras 19 and 64.
(8) Judges should not readily accede to accusations of apparent bias because that may lead to the parties seeking to effect a disqualification so as to have the case tried by a judge considered to be more amenable to their case: see the observations of Mason J sitting in the High Court of Australia in RE JRL ex parte CJL  161 CLR 342,352 cited with approval in Locabail at para. 22. At the same time, where in any case there is real ground for doubt, that doubt should be resolved in favour of recusal: Locabail at para 25.
The Tribunal's decision on bias.
- The Tribunal was not satisfied that Mrs Dunn ought to recuse herself and it set out its reasons in some detail. It noted that Mr Hill's credibility was not in issue - had it been, then it was recognised that recusal would have been required - nor was the credibility of two others whose names had been identified in evidence. (It is not entirely clear to whom the chairman was referring but it was probably Mr Butler and Ms Foster). The question whether the GMB's policy for dealing with the women's claims was or was not justified or appropriate was not, in the Tribunal's view, in issue. Indeed, the Tribunal had forbidden cross examination of the witnesses on this point by Mr Engelman. Since the merits of the policy were not under consideration, it mattered not what Mrs Dunn's own views about them were. The fact that Mrs Dunn had played a role in the appointment of Thompsons as Unison's solicitors was also of no significance since the identity of the solicitors had no relevance to any of the issues the Tribunal had to determine.
- The Tribunal considered and rejected the notion that Mrs Dunn could sensibly be said to have any interest in the outcome of the case. For all these various reasons, therefore, the Tribunal determined not to discharge itself.
The grounds of appeal.
- Once the appeal was lodged, the chairman and Mrs Dunn were asked for their comments on the grounds of appeal. Both commented on the affidavit which had been provided by Mr Hill, and he in turn responded by a further affidavit. Mrs Dunn indicated that she had told the chairman that she knew some of the people named in the claim form, but was told that this did not matter. She also said that she had not been involved in Mr Hill's expulsion, although that does not sit happily with the statement in the tribunal decision that she had told the chairman that she was involved. The chairman noted that although he was aware that she was active in Unison, he had no detailed knowledge of her involvement. He also noted that in fact there was no evidence of any collusion between the two unions as Mr Engelman had suggested.
- Mr Engelman contended before the Tribunal, as he does before us, that there was both interest and apparent bias. However, he accepted that the former is more difficult to sustain and that it is likely to add little, if anything, to the appearance of bias argument.
- The principal basis for his interest challenge is that Mrs Dunn had a key role to play in Unison, both nationally and locally. She must have been a party to what he said was collusive action between the GMB and Unison. Unison had a significant interest in the outcome of the litigation and, given their high profile and what, he submits, must have been an active participation in formulating union policy, it is a reasonable inference that she would have been wedded to the equal pay strategy. She therefore had a sufficiently strong personal interest in the outcome of the proceedings to justify automatic disqualification on grounds of interest.
- These matters are also relied on with respect to apparent bias but in that context Mr Engelman also places emphasis on certain additional features. These included Mrs Dunn's dealings with Mr Hill with whom, it is said, she had a sour relationship, although Mrs Dunn neither confirmed nor denied that description; her friendship with the branch secretaries of the South Tyneside Unison branch - and in particular, Mr Butler - and the fact that it was that branch which had passed on Mrs McGlasham's complaint to the regional secretary of Unison; and the important matter, which Mr Engelman said went to the heart of this aspect of the appeal, that both the reasonableness and the legality of the strategy which the GMB and Unison shared was an issue in the case.
- Mr Engelman submits that an objective observer in the knowledge of these facts would inevitably conclude that there was a real possibility that Mrs Dunn's approach to these matters would have been influenced by at least unconscious bias.
- Mr Segal, counsel for the union, counters by contending that this is a specious and unmeritorious challenge. He says that there is no question here of interest bias and that the case falls nowhere near that exceptional category of cases where interests other than financial will suffice to attract the operation of the doctrine.
- As to apparent bias, he submits that the Tribunal was entirely right to conclude that the justification or reasonableness of the union's policy towards these equal pay claims was simply not an issue in the proceedings. He emphasised, and this was very central to his submissions, that at all stages the claimant himself had accepted that the policy was justified and he did not seek to distance himself from it. His principal defence had been that he had not indirectly referred persons to Mr Cross. His main argument before the Tribunal was that he had been disciplined not for his own conduct but for his inability or unwillingness to control the activities of his wife. Indeed at times he put it wider than that and was alleging that he was being disciplined specifically for his wife's actions and not his own.
- As to Mrs Dunn's connections with certain of the individuals referred to in the case, he contended that there was nothing about her relationship with Mr Hill which ought to have caused her to disqualify herself. The Tribunal recognised the dilemma that might have arisen had he in fact given evidence, but once his credibility was not in issue then there was no reason for that connection to affect her ability to deal with the issues objectively and fairly. In any event, once the relationship with Mr Hill had become known, the claimant ought to have raised the issue of Mrs Dunn's connections with the Tribunal. Mrs Dunn's connection with the joint secretaries of the South Tyneside branch of Unison was even less significant. It is not plain that they had had any part to play in the proceedings whatsoever. The most that could be said is that they, or one of them, may have referred the letter from Mrs McGlasham on to the regional secretary. That is a far cry from saying that either of these individuals in any sense instigated the disciplinary proceedings against the claimant. That would at best show that they felt there might be a matter that required investigation by the GMB.
- The fact that Mrs Dunn was involved in the appointment of Thompsons as solicitors was of no materiality. It is quite unrealistic to believe that the fact that Thompsons were acting for GMB would have influenced her in any way whatsoever. They act for very many unions.
- Finally, Mr Segal submits that it would create serious problems if we were to accede to this application. He points out that there will frequently be cases where the representative drawn from the union side on the Employment Tribunal will have some acquaintanceship sometimes extending into a friendship with officials in other unions who might have played some part in the events which the Tribunal has to consider. Of course, where they have played a significant role and in particular, where they give evidence and their credibility is in issue, then that will generally require recusal on the grounds of apparent bias. However, the fact that a union official might have played some bureaucratic or administrative role in events which are the subject of scrutiny cannot begin by itself to merit a challenge on grounds of alleged bias. In truth, that is all there was here.
- Applying those principles to the facts of this case, we have no hesitation in saying that there is no question of Mrs Dunn in this case having such an interest in the outcome of this litigation as to attract the automatic disqualification rules. She has no pecuniary or proprietary interest and we agree with Mr Segal that she is very far removed from the exceptional circumstances where some non-financial interest might still attract the operation of the rules. Even if it can be said that Unison has some interest in the outcome - and that seems to us to be doubtful - she is a further stage removed again. This is nothing like the close link which the Court of Appeal recognised would be necessary in the Locabail case. Accordingly, we dismiss this aspect of the appeal.
- The issue of apparent bias raises different considerations. The features which we consider are potentially pertinent here are as follows:
(1) The context in which the disciplinary action occurred was an alleged deliberate flouting of an established policy of the GMB Union.
(2) That was a policy which, at least in substance, it shared with Unison. As the Tribunal said, there was no evidence of any collusion between the two unions but the agreement with the Newcastle City Council demonstrates at the very least a close similarity in outlook about the appropriate strategy.
(3) Mrs Dunn had until some time in 2003 held a very senior position in Unison, not only nationally, but in the particular locality. She was not involved in any of the negotiations with the Council over the new single status agreement. However, we think it legitimate to infer that even if she was not directly involved in the formulation of the union's general strategy towards these issues - and it would be surprising if she had not at least had discussions about these matters within the union given their importance and the strong feelings they generated - she would have wanted to support the union's approach.
(4) She was closely connected with certain individuals who had some involvement, albeit it appears relatively minor, in the relevant events. Apart from the connection with Mr Hill, who did represent the claimant on appeal, she appears to have known relatively well the joint branch secretaries of the South Tyneside branch. One of the complaints about Mr Hamilton emanated originally from that branch and was forwarded to the GMB by the regional secretary. To that limited extent there was a connection with someone indirectly involved in bringing about the instigation of proceedings.
(5) One of the issues which arose for determination before the Tribunal was whether the policy adopted by the GMB was a reasonable and/or lawful one. The Tribunal took the firm view that the former was not material. But they did have to consider the issue of legality. The contention was that even if Mr Hamilton had acted in the way alleged, nevertheless it was an act of victimisation to take proceedings against him because the GMB policy was either in breach of the law or at least could not properly be enforced without involving a breach of the law.
- Giving anxious consideration to these matters, we have each reached the conclusion that here the appearance of bias was such that this decision should not be allowed to stand. We say this with some reluctance, given the implications for the parties and the wasted costs.
- In our judgment the most important issue is the fact that the legality of the strategy which was commonly shared by both unions was under consideration. Whether there is any real merit in the argument that it was a breach of s. 4(1)(c) of the Sex Discrimination Act 1975 to enforce this policy is not to the point.
- The question, it seems to us, given that Unison's policy was essentially the same as the GMB's policy, is whether a reasonable person might perceive that there was a real possibility that Mrs Dunn may be unconsciously biased when considering that issue. We consider that given the important position she had recently held within the union, and the natural desire she would have to uphold the legality of that policy, a reasonable person would take that view. We recognise that there will be natural tendency for most union officials to think that union policy should be supported. But this issue goes beyond that.
- We accept entirely that the reasonableness of the policy was not relevant. The Tribunal was entitled in our view to conclude that it was irrelevant to the issue they had to determine whether it was a desirable or reasonable policy or not. But they could not avoid having to consider whether the enforcing of the particular policy involved victimisation because that was one of the ways in which the issue was put on behalf of the claimant.
- We fully recognise the force of the observations made by Mr Segal that lay members will often have some connection with persons who have a part to play in the events which the Tribunal has to consider. We would not have been minded to find that Mrs Dunn should have recused herself solely because of her involvement with some of the characters in the narrative, although it seems to us that these do add weight to the primary objection.
- We recognise that the claimant through his counsel may well have explored further the links possibility of bias once the link with Mr Hill became known. But the failure to do so cannot in our view conceivably be treated as a waiver. It is not suggested that the claimant actually knew Mrs Dunn's full involvement in Unison before the application for her recusal was made and without full knowledge there cannot be waiver. Whatever knowledge Mr Hill may have had at earlier stages cannot, without evidence, be attributed to the claimant. Nor do we think that the fact that the hearing had been largely completed, even if that is a material factor at all, can justify non-intervention in this case (see para 29(5) above.)
- It follows that we consider that this appeal ought to succeed on this ground.
- In the circumstances, given that the matter will have to be remitted to another Tribunal for a full re-hearing, we think that it would not be helpful to deal with the second point, namely whether or not the Tribunal was right to conclude that there was no victimisation in the circumstances of this case. That analysis depends on what findings of fact the Tribunal makes.
- Finally, we observe of course that there is no allegation at all that Mrs Dunn demonstrated any actual bias. We have no reason to doubt that she acted at all times in good faith. We also recognise the dilemma that the chairman was in when this application was made, particularly given that the Tribunal had already sat for five days. But we think that once the application had been made, and in the light of the particular matters that we have identified, the decision ought to have been that Mrs Dunn should recuse herself. That was highly inconvenient given that the claimant would not allow the case to go ahead with the other two members only, but that was his legal right and could not affect the decision which had to be taken.
- We also emphasise that it is important that lay members who have any concerns at all about the propriety of their hearing a case must raise the issue as soon as possible with the chairman, who in turn should explore fully the extent of any potential conflict of interest before hearing or continuing to hear the case. That should limit the risk of challenges of this kind being successful.
- The appeal succeeds and the case should be remitted to another Tribunal for a rehearing.
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