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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Peninsula Business Services Ltd v Rees & Ors (Rev 1)  UKEAT 0333_08_2307 (23 July 2009)
Cite as:  UKEAT 0333_08_2307
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|At the Tribunal
On 18 December 2008
and 6 & 7 April 2009
THE HONOURABLE MRS JUSTICE SLADE
MR P GAMMON MBE
MR D J JENKINS OBE
1) PENINSULA BUSINESS SERVICES LTD
2) MS J ENGLISH
2) MR J MCLACHLAN
3) MR F JAFFIER
PENINSULA BUSINESS SERVICES LTD
Transcript of Proceedings
|For the Appellant (Peninsular Business Services)||MR JOHN SAMSON
Messrs Steeles (Law) LLP Solicitors
3 The Norwich Business Park
Norfolk NR4 6DJ
|EAT/0333/08/RN EAT/0334/08/RN EAT/0335/08/RN
For the Respondents
Mr I G Rees, MR J Mclachlan, Mr F Jaffier
MR IAN REES
For the Respondent
Ms S Malik
MS NAOMI LING
Messrs Shoosmiths Solicitors
Quantum House Basing View
Hampshire RG21 4EX
PRACTICE AND PROCEDURE: Bias, misconduct and procedural irregularity
The Appellants are a large organisation offering employment advice and representation before Employment Tribunals and the Employment Appeal Tribunal. The same Employment Judge heard the cases of Mr Rees and others and Miss Malik against Peninsula. Shortly before the resumed hearing of the case of Mr Rees and others, the five partner firm of solicitors in which the then part-time Employment Judge was an employment law specialist, advertised their employment law expertise and denigrated non-solicitor employment law consultants. Although not named, the Appellants are well-known and perhaps the largest such consultants. A fair-minded and informed observer could not have excluded the possibility of bias against Peninsula by the Employment Judge. (Porter v McGill  2 AC 357 and Locabail v Bayfield Properties Limited  IRLR 96 applied). The judgment in the case of Mr Rees and others is set aside on grounds of apparent bias. The case is remitted for rehearing before a different Employment Tribunal.
In the case of Miss Malik, after recusal of a lay member, the Appellant's representative consented to the case continuing with the Employment Judge and the remaining lay member. Although consent was reluctantly given it constituted proper waiver of the apparent bias (Locabail and Jones v Das Legal Expenses Insurance Co Ltd  IRLR 218). The presence of the Employment Judge on the Tribunal in that case did not give rise to the appearance of bias on the grounds it did in Mr Rees' case. The distance in time between the advertisement and the hearing of Miss Malik's case and the fact that the by now full-time Employment Judge was no longer a partner in the solicitors' firm removed any real risk of appearance of bias by the presence of the Employment Judge on the Tribunal in that case (Locabail, para 89). The bias ground of appeal in the case of Miss Malik is dismissed. The appeal will be relisted for determination of other grounds of appeal in that case.
THE HONOURABLE MRS JUSTICE SLADE
Summary facts relating to the allegation of apparent bias
"Peninsula's business model is plainly premised upon a professed expertise in employment law and practice. Peninsula also hold themselves out as being an "Employer of Excellence". …. In fact, this is a standard devised by Peninsula themselves …"
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" … the marketing strategy at the heart of Mr Samson's submission was simply insufficient, in our view, to give rise to a real possibility of bias and hence the need to raise that issue."
|2.||EJ's firm MKB's advertisement in the Barnsley Chronicle||. 25.5.07|
|3.||EJ's firm MKB's Seminar||14.6.07|
|5.||Mr Anslow emails Peninsula (incorrectly addressed) re a recruitment advertisement||9 and 10.9.07|
|6.||Rees hearing||10 and 11.9.07|
|7.||Mr Anslow emails Peninsula and resends his application (without attachments)||11.9.07|
|8.||Rees hearing submissions||12.9.07|
|9.||Rees hearing ET in chambers||13 and 14.9.07|
|10.||Peninsula replies to Mr Anslow||14.9.07|
|11.||Mr Anslow resends application with CV||15.9.07|
|12.||Rees hearing ET in chambers||25,26.9.07|
|13.||Mr Anslow follows up his application||27.9.07|
|14.||Rees hearing ET in chambers||8.10.07|
|15.||Mr Anslow follows up his application (incorrectly addressed)||7.11.07|
|16.||Malik hearing||22, 23.11.07|
|17.||Mr Anslow sends a letter following up his application referring to the failure of Peninsula to respond to his application as 'galling'||. 30.11.07|
|18.||Peninsula invites Mr Anslow to a preliminary interview||3.12.07|
|19.||Peninsula confirms Mr Anslow's interview||5.12.07|
|20.||Mr Anslow confirms interview attendance||7.12.07|
|21.||Mr Anslow attends interview completes formal application||10.12.07|
|22.||Mr Anslow invited to second interview||12.12.07|
|24.||Mr Anslow attends second interview and is offered the job||20.12.07|
|25.||Mr Anslow accepts job offer with Peninsula||21.12.07|
|26.||Peninsula confirms job offer/start date||21.12.07|
|27.||EJ retires as partner of MKB||31.12.07|
|28.||EJ takes up full-time EJ post||1.1.08|
|29.||Malik hearing, final day (for submissions, decision and remedy)||4.1.08|
|Ellen Singer, EJ Ms Niaz (counsel for Miss Malik) learn of Mr Anslow's job offer from Peninsula|
|Recusal of Mr Anslow|
|Parties agree to continue with EJ and one member.|
|30.||Malik written reasons||18.1.08|
"13. Mr Brain then sought the parties views on proceeding with just two members. Ms Niaz stated that she thought this was not an ideal situation and that her client had made a comment to that effect. She said, however, that as they were in this situation, she believed the hearing should proceed with two members on the basis that the Claimant was paying for the representation herself and that she thought it would be prejudicial for the Respondent to be given a second bite at the cherry, as they would have had the benefit of having heard all the Claimant's cross-examination questions, and could close up the gaps for the next time, as in her submission their cross-examination had gone so badly. She said she therefore felt that it would be overly prejudicial to abandon this hearing and to start again with another tribunal. Ms Niaz also said that Mr Anslow had asked some very pertinent questions and that they had found it very useful to have his knowledge available to the tribunal. Mr Brain stated that they had heard those questions and answers, and had had the benefit of Mr Anslow's expertise in matters up to this point. Ms Niaz re-stated that, given the costs to the Claimant and the fact that the hearing could be used as a dry run, she felt that the only option was to continue with two members.
14. Mr Brain then asked Ms Singer for her comments. Ms Singer said that the situation was less than ideal and that there were problems with both options. Ms Singer stated that the Claimant had not been the only party put to costs in relation to this matter. Ms Singer said that she did not believe that the prejudice argument really held any weight in respect of the issue of cross-examination, as it applied equally to both sides, and as such, the Claimant equally had a chance to tighten up her evidence.
15. Mr Brain put to Ms Niaz that this issue on cross-examination applied equally, and counsel stated that she only had one witness (the Claimant) whose evidence was obtained in the detailed witness statement. Both Mr Brain and Ms Singer stated that counsel had two witnesses: the claimant and Alan Carruthers. She went on to say that her client wished to proceed, particularly in light of the costs already incurred and of the costs in running the hearing again."
"In conclusion, therefore, the material referred to in paragraph 26 of the Grounds of Appeal and the appendix thereto is not, upon proper consideration, undisclosed material information. On the contrary, it is material information readily available to the parties and which ought to have been fully considered by the appellants in considering whether or not to make their recusal application. Further, it is material to which I would have had to make reference at some point in any event."
The applicable legal principles
Appearance of bias
(a) Actual bias;
(b) Interest bias;
(c) Apparent bias, on which this appeal is based.
"whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased."
High Court Judge who was also a solicitor Queen's Counsel and by a barrister Recorder. The Court observed:
"20. …While it is vital to safeguard the integrity of court proceedings, it is also important to ensure that the rules are not applied in such a way as to inhibit the increasingly valuable contribution which solicitors are making to the discharge of judicial functions. Problems are, we apprehend, very much more likely to arise when a solicitor is sitting in a part-time capacity, and in civil rather than criminal proceedings."
"1. If, in any case not giving rise to automatic disqualification and not causing personal embarrassment to the judge, he or she is or becomes aware of any matter which could arguably be said to give rise to a real danger of bias, it is generally desirable that disclosure should be made to the parties in advance of the hearing. If objection is then made, it will be the duty of the judge to consider the objection and exercise his judgment upon it. He would be as wrong to yield to a tenuous or frivolous objection as he would to ignore an objection of substance. (para 21)
2. If there were real ground for doubting the ability of the judge to ignore extraneous considerations, prejudices and predelictions and bring an objective judgment to bear on the issues before him, a real danger of bias may be thought to arise. (para 25)
3. If in any case there is real ground for doubt, that doubt should be resolved in favour of recusal. (para 25)
4. 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. (para 25)
5. There can be no real apprehension or likelihood of bias if the judge does not know of the facts which are relied upon as giving rise to the conflict of interest. (para 55)
6. Even where automatic disqualification applies, a party with an irresistible right to object to a judge hearing a case may waive his right to object. (para 15)
7. Any waiver must be clear and unequivocal, and made with full knowledge of the facts relevant to the decision whether to waive or not." (para 15)
(i) The judge's explanation must be full and carefully noted;
(ii) The options open to the parties should be explained in detail and the parties told that it is their right to object;
(iii) The parties should be told that time will be afforded to reflect before electing.
33. It was also noted, however, that this was not a set of rules to be complied with if a waiver was to be valid (Smith v Kvaerner Cementation Foundations Ltd  1 WLR 370, para 29):
"the vital requirements are that the party waiving should be aware of all the material facts, of the consequences of the choice open to him, and given a fair opportunity to reach an unpressured decision."
Application to the facts: the submissions of the parties
"We remind ourselves that Peninsula holds itself as the biggest employment law consultancy in the country. For such an organisation to flagrantly breach employment legislation is, frankly, astonishing. It is simply no answer to say that once Peninsula realised that their actions were illegal, they gave Mr Jaffier his money back.
When he gave evidence, Mr Huss said that he took the view that the deduction of £50 from Mr Jaffier's salary was lawful. For a man of Mr Huss's experience to make this assertion in the circumstances is frankly incredible. Peninsula acted illegally, they knew or ought to have known they were acting illegally and yet they carried on regardless."
"It bears repeating once again that Peninsula holds itself out as having expertise in employment law and practice. It is a large employer."
At paragraph 421 the ET observed:
"Put simply, Peninsula did not practice what they preach. …However, the claimants did have a legitimate expectation that Peninsula would comply with those standards of behaviour. This is all the more so where Peninsula hold themselves out as being an "Employer of Excellence", (Peninsula having awarded themselves that accolade)."
"In a case in which before or during the trial facts relating to the alleged bias have been disclosed to the parties, it seems to us right that attention should be paid to the wishes of the parties. They are the principals. If they are content that the trial should proceed the judge should, in our view, except where he doubts his ability to be impartial, be very slow to abort the trial. If one party wants the trial to continue and the other wants it aborted, the judge must decide what to do, weighing all the factors and asking the questions to which we have referred. It follows that we do not accept that the discovery of a conflict of interest which, under the Law Society's conflict rules, would disqualify a solicitor from acting for one or other of the parties to case necessarily bars the solicitor from hearing the case as a deputy judge or requires a hearing already started to be aborted or a judgment given on the case to be set aside. Everything depends on the circumstances of the particular case."
"We have found this a difficult and anxious application to resolve. There is no suggestion of actual bias on the part of the recorder. Nor, quite rightly, is any imputation made as to his good faith. His voluntary disclosure of the matters already referred to show that he was conscious of his judicial duty. The views he expressed in the articles relied on are no doubt shared by other experienced commentators. We have, however, to ask, taking a broad common sense approach, whether a person holding the pronounced pro-claimant anti-insurer views expressed by the recorder in the articles might not unconsciously have leant in favour of the claimant and against the defendant in resolving the factual issues between them. Not without misgiving, we conclude that there was on the facts here a real danger of such a result. We do not think a lay observer with knowledge of the facts could have excluded that possibility, and nor can we. We accordingly grant permission to appeal on this ground, allow the defendant's appeal and order a re-trial. We should not be thought to hold any view at all on the likely or proper outcome of any re-trial."
"The greater the passage of time between the event relied on as showing a danger of bias and the case in which objection is raised, the weaker (other things being equal) the objection will be."