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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Hamilton v. GMB (Northern Region) [2006] UKEAT 0184_06_3011 (30 November 2006) URL: https://www.bailii.org/uk/cases/UKEAT/2006/0184_06_3011.html Cite as: [2006] UKEAT 184_6_3011, [2006] UKEAT 0184_06_3011, [2007] IRLR 391 |
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At the Tribunal | |
On 9 November 2006 | |
Before
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
MR P R A JACQUES CBE
MR J MALLENDER
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
(in liquidation)
For the Claimant | Mr Philip Engelman (of Counsel) Instructed by: Messrs Stefan Cross Solicitors Buddle House Buddle Road NEWCASTLE-UPON-TYNE NE4 8AW |
For the Respondent | Mr Oliver Segal (of Counsel) Instructed by: Messrs Thompsons Solicitors The St Nicholas Building St Nicholas Street NEWCASTLE-UPON-TYNE NE1 1TH |
SUMMARY
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 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.
"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 ….."
The composition of the Tribunal
The law.
Interest bias.
(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 [2000] 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) [1999] 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 [2005]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.
Apparent bias.
"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 [2002] 2 AC 357 following the analysis by the Court of Appeal in the case of Re Medicaments and Related Classes of Goods (No 2) [2001] 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 [2006] 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. [2005] 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) [2006] 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 [1986] 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 grounds of appeal.
Conclusions.
(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.
Disposal.