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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Ezsias v North Glamorgan NHS Trust [2006] UKEAT 0705_05_2507 (25 July 2006) URL: https://www.bailii.org/uk/cases/UKEAT/2006/0705_05_2507.html Cite as: [2006] UKEAT 0705_05_2507, [2006] UKEAT 705_5_2507 |
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At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Transcript of Proceedings
For the Appellant | MR A EZSIAS (The Appellant in Person) |
For the Respondent |
MR TIMOTHY PITT-PAYNE (of Counsel) Instructed by: Messrs Eversheds LLP Solicitors 1 Callaghan Square Cardiff CF10 5BT |
SUMMARY
Employment Tribunal struck out unfair dismissal claims stating they were bound to fail. The employers had made two applications, one for a deposit to be ordered pursuant to rule 20 of the Employment Tribunal rules, and the second for a strike-out pursuant to rule 18(7)(b) on the grounds that the appeal had no reasonable prospect of success. At the first hearing only the rule 20 application was formally before the Tribunal because no notice had by then been given in relation to the rule 18 matter. In fact the Tribunal concluded that the claim was bound to fail, but fixed a second hearing to consider the question of strike-out and also the means of the claimant. Means had to be considered before any deposit was ordered. At the second hearing an order to strike-out all the claims was granted. The claimant alleged that the Chairman had come to the second hearing have prejudged the issue, given her trenchant comments at the first hearing, and that in any event there were fundamental factual disputes which made the strike-out wholly inappropriate. The EAT upheld the appeal on both grounds.
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
Background
Procedural history
"At a pre-hearing review if a chairman considers that the contentions put forward by any party in relation to a matter required to be determined by a tribunal have little reasonable prospect of success the chairman may make an order against the party, requiring the party to pay a deposit of an amount not exceeding £500.00 as a condition of being permitted to continue to take part in the proceedings relating to that matter."
"In my opinion the contentions put forward have no reasonable prospect of success. The case will be re-listed to consider the question of means and/or the respondent's application for a striking out order made in box 6 of their response".
In fact, therefore, at that stage no order as such had been made. There were simply certain conclusions as to the strength of the case.
"(1) A reasonable tribunal would be unlikely to find that the alleged disclosures, other than those of fraud, amounted to qualifying disclosures within the meaning of the relevant legislation.
(2) Insofar as the fraud allegation made to the Police about Mr Smart was a qualifying disclosure, it was not made to another responsible person other than his employer, within the meaning of section 43(c).
(3) A reasonable tribunal would find that the fraud disclosures relating to Mr Smart and Mr Nash were not, in any event, made in good faith.
(4) In any event, the whistle-blowing claim had no reasonable prospect of success because the Employment Tribunal concluded that the principle reason for dismissal was not the making of a protected disclosure, as asserted by the Appellant, but the reason put forward by the Trust, namely the irretrievable breakdown in the relationship in the Trust of confidence."
"I would go further and say that it is bound to fail."
30. The two matters came before Mr Justice Rimer, who ordered that both should go to a full hearing, whilst expressing the view that it was very doubtful whether there was any relevant order, decision or judgment made in July which could properly be the subject of an appeal. He also expressed certain observations, perhaps in rather stronger terms than is usually found in a preliminary hearing, that the Chairman's approach was "questionable" and that it was not usual to determine disputes of fact simply by assessing the opposing contentions of the parties as set out on paper.
The Grounds of Appeal
Bias
"25. Discussion
It is common ground that (1) a judicial decision may be vitiated by the appearance of bias no less than actual bias and that the test for such apparent bias is whether the fair-minded and informed observer, having considered the facts, would consider that there was a real possibility that the tribunal was biased (see Porter v Magill [2002] 2 AC 357 at p.494H per Lord Hope); and (2) that the premature expression of a concluded view or the manifesting of a closed mind by the tribunal may amount to the appearance of bias.
26. On the first point it is important to stress that the test to be applied is an objective one. The fact that the tribunal were amazed at the allegation of bias or that Southwark and its legal advisers were surprised at what was said or regarded the comments as displaying bias cannot be determinative for the appellate tribunal which must conduct an objective appraisal of all the material facts. It is no less important to emphasise the qualities of the observer through whose eyes the appraisal is conducted, viz of being fair-minded and informed. The observer in the present case must be assumed to have been present throughout the hearing and to be aware that on 12 March 1999 the evidence was very largely completed but with submissions yet to be heard. The observer must also be taken to have informed himself of the procedure and practice of tribunals in this jurisdiction."
"I have some difficulty in understanding why a strongly expressed view cannot be a provisional view, leaving it open to the party criticised to persuade the tribunal as to why that view was wrong and why the party's conduct was justified. Of course, the more trenchant the view, the more the attachment of the label 'preliminary' may need scrutiny to see whether the view was truly preliminary and not a concluded view, but it is in my judgment unduly cynical to reject the repeated assertions that these were preliminary thoughts or views, particularly when the Tribunal have gone to the trouble of pointing out the various matters which need to be addressed in the submissions, directions for which were given".
.
The merits of the case
"Discrimination cases are generally fact-sensitive, and their proper determination is always vital in our pluralistic society. In this field perhaps more than any other the bias in favour of a claim being examined on the merits or demerits of its particular facts is a matter of high public interest."
Admittedly that was in a different context where the claim had been alleged to be res judicata. Mr Pitt-Payne further submits that the public interest in discrimination cases is stronger than in whistleblowing cases. Even if that is so, it nonetheless seems to me that there should be a fair and proper examination on the merits, and that means where they are properly tested.