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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> City & County of Swansea v Honey [2008] UKEAT 0030_08_0711 (7 November 2008) URL: https://www.bailii.org/uk/cases/UKEAT/2008/0030_08_0711.html Cite as: [2008] UKEAT 30_8_711, [2008] UKEAT 0030_08_0711 |
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At the Tribunal | |
On 25 September 2008 | |
Before
THE HONOURABLE LADY SMITH
MR G LEWIS
MS B SWITZER
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
UKEAT/0549/07/RN & EAT/0029/08/RN
APPEARANCES
For the Appellant | MR JONATHAN COHEN (of Counsel) Instructed by: Messrs Dolmans Solicitors 17-21 Windsor Place Cardiff CF10 3DS |
For the Respondent | MS HELEN GOWER (of Counsel) Instructed by: Messrs Thompsons Solicitors Agincourt 14-18 Newport Road Cardiff CF24 OWS |
SUMMARY
PRACTICE AND PROCEDURE: Bias, misconduct and procedural irregularity
Bias. Claim of unfair dismissal by senior legal executive against local authority employer. Claim upheld and substantial award of compensation ordered. One of the Tribunal lay members was District Secretary of the RMT Trade Union and, at the time of all relevant hearings in the case, was involved in that capacity in a dispute with the Respondents regarding their licensing of taxi cabs. He had criticised the Respondents openly, in writing and in a press statement and was reported by the local press as having 'blasted' the Respondents' report on the matter as 'extremely biased' and as having shown 'very poor leadership and inefficiency'. The Respondents' legal services department did not become aware of his involvement in the taxi licensing dispute until after the merits hearing; they unsuccessfully sought a review on bias grounds. They appealed to the EAT and the EAT upheld the appeal; this was a plain case of apparent bias and it was surprising (a) that the lay member had not volunteered the relevant information and (b) that the Tribunal had not itself recognised, when the matter was aired at review, that the demands of impartiality required that the review be granted.
THE HONOURABLE LADY SMITH
INTRODUCTION
BACKGROUND
"I was rather surprised to be asked for the basis of my organisations request for a review. None who was present at the last consultative meeting , least of all the Chairman and his two fellow elected colleagues, could have possibly failed to know the basis for my union's request as these were expressed by me and several others at the meeting, one of whom actually walked out in sheer exasperation."
"We regret we wish to inform the people of Swansea that Swansea Hackney Carriages shall be taking strike action during the Christmas and New Year holiday period.
The reason for such industrial action is as follows:
The people of Swansea will be aware that Swansea Council has for many years adopted a policy of total non- regulation of Hackney Carriage licences, which has resulted in the city becoming totally saturated with Black Cabs. The council refers to this practice as "the open market policy.
The intention of this foolish policy is to allow Hackney Carriages to set their own numbers without any council intervention whatsoever…….."
"This is what concerns me. Who is calling the shots, is it the elected representatives or is it the employees who are not elected but appointed?"
Also at that meeting, one of the taxi driver representatives accused the Respondents of having an ulterior motive, suggesting that they would not want to limit the number of taxi licences as the licence fees funded a large proportion of the Environment Department. Matters were evidently very tense if not heated at that meeting.
"When you said that much of the information in my letter is incorrect, what are you referring to? My notes show that I made reference to the Stern report and report of the House of Commons Select Committee chaired by Mrs Gwyneth Dunwoody on the failure of deregulation of Transport … the meeting concluded with a joint statement which all sides agreed with and which was to be published in the South Wales Evening Post on Monday 18 December. I would be grateful for your comments."
"Council report on taxi trade blasted as biased"
The newspaper report included the following:
"A UNION boss representing Swansea taxi drivers has blasted a council report on the trade as "biased".
City taxi drivers are urging Swansea Council to put a limit on the number of licences to safeguard their livelihoods
…
Union of Rail, Maritime and Transport workers' Swansea branch secretary Ken Thomas criticised the report to the full council as "extremely biased".
He said the council's argument that unlicensed activities in the city would increase if there was a cap on hackney carriage vehicle numbers "shows very poor leadership and inefficiency".
Mr Thomas said: "There can be no doubt that 77 local authorities have capped numbers."
And he warned that queues around the city's 40 taxi rank spaces were illegal. Mr Thomas went on: "The fact that hackney carriage vehicle drivers are now forced to work long shifts simply to make ends meet is a cause for concern from the perspective of Health and Safety.
"Tired drivers are dangerous drivers and any situation where drivers are forced to work when tired is a recipe for disaster."
The Relevant Law
"(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 45, at paragraph 17:
" …whatever the merit of the reasonable suspicion or apprehension test the test of real danger or possibility has been laid down by the House of Lords and is binding on every subordinate court in England Wales."
"whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased." (para 103)
the reference to 'a real danger' being deleted, Lord Hope of Craighead explaining, also at para 103:
"Those words no longer serve a useful purpose here, and they are not used in the jurisprudence of the Strasbourg court."
"Under the objective test, it must be determined whether, quite apart from the judge's personal conduct, there are ascertainable facts which may raise doubts as to his impartiality. In this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public … Accordingly, any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw."
"There can, however, be no question of cross-examining or seeking disclosure from the judge. Nor will the reviewing court pay attention to any statement by the judge concerning the impact of any knowledge on his mind or his decision: the insidious nature of bias makes such a statement of little value, and it is for the reviewing court and not the judge whose impartiality is challenged to assess the risk … "
"The exchange of still very recent emails demonstrates that the judge was extremely displeased that the negotiations about his possible future with the firm of solicitors … had broken down. His irritation is obvious. It did not arise from previous professional encounters with the solicitors or their conduct of earlier or indeed the current litigation when different considerations would apply. It arose exclusively and directly from the judge's personal affairs and his private but recently unsuccessful dealings with Addleshaw Goddard. The solicitors were not simply solicitors on the record. Mr Howell, a partner in the firm of Addleshaw Goddard, was a party to what I may loosely describe trustee proceedings, and this contentious litigation carried with it at least the potential for serious adverse personal consequences for him."
Matters were compounded, it seems, by the way that the judge handled the application.
The Appeal
Discussion and Decision
Disposal