Post Office v Cunniff [1993] UKEAT 209_93_1910

EAT

Post Office v Cunniff

[1993] UKEAT 209_93_1910 · 1993-10-19

JUDGE J M BULL QC:

This is an appeal by the Post Office against the decision of an Industrial Tribunal at Liverpool which heard this case on two days the 2nd October and the 13th November 1992. The Full Reasons were sent to the parties on the 27th November 1992. The Industrial Tribunal concluded that Mr Cunniff had been unfairly dismissed. It is against that conclusion that the Appellants bring this appeal contending that such a finding was, upon the evidence given before the Industrial Tribunal, perverse, and one which no Tribunal properly directing itself upon the evidence could have reached. There are further grounds of appeal alleging erroneous views of the law and criticisms of the conduct of lay members of the Tribunal in frequent offensive, and aggressive questioning of witnesses, which it is suggested gave the impression of a biased approach and further that one lay member evinced a virtually concluded view, adverse to the Appellants, during the course of the evidence of their first witness.

We do not propose to set out everything which transpired but in summary the facts are as follows, and I shorten, because they are not in dispute and not relevant to this judgment.

Mr Cunniff was a Postman. On Friday 8th November 1991 watch was being kept upon him and it was discovered that he went home, it is said from approximately quarter past eleven to a quarter to 12 midday. This Mr Cunniff disputes saying he estimated that he was home for fifteen minutes or thereabouts. But there is no dispute that he claimed overtime for this period. Mr Lanham, the Shift Manager for the Post Office, felt, in his view that at least half an hour, thus booked as extended delivery, was fraudulent and in consequence the decision was made, and I shorten matters considerably, by Mr Clifford, to dismiss Mr Cunniff.

Mr Cunniff then applied to the Industrial Tribunal alleging that he had been unfairly dismissed. The hearings took place over two full days. We do not have the benefit of the Notes of Evidence but do have an affidavit sworn by Mr Hodge, the Solicitor appearing on behalf of the Post Office, which contains his recollection of disturbing allegations that both lay members intervened, the one asking questions and the other expressing an opinion which would cause a reasonable observer present at the hearing to gain the impression of bias, it is submitted to us.

The Chairman in written comments to us upon the affidavit, deposes that whilst accepting that the lay members were somewhat critical of the main witness for the Appellant, she has no recollection of the alleged comment by one of the lay members that the dismissal was unfair subject to his discussion with his colleagues. She further goes on to say, that in private discussions, leading to the decision, she was certainly not under the impression that either of her colleagues had a closed mind or was biased in any way. The complaint here, however, is that such a comment, if made, would give the appearance of a closed mind against the Appellant and the criticism is not made of the decision process itself.

The appeal to this Tribunal, from the decision of the Industrial Tribunal which held that the dismissal was unfair, can only of course be supported upon a point of law and there can be no question of us re-trying the matter. The first issue raised by the Post Office is that the Industrial Tribunal's decision upon the evidence which it heard was perverse, and one which no Tribunal, properly directing itself, could have reached upon such evidence. We have been assisted by the decision of the Court of Appeal in Piggott Brothers & Co Ltd v. Jackson

[1991] IRLR 309

and especially the passage at page 312 where Lord Donaldson, Master of the Rolls, repeating in effect what had been said by his predecessor in that office, Lord Denning in the case of Retarded Children's Aid Society v. Day said this at paragraph 17:

"What matters is whether the decision under appeal was a permissible option. To answer that question in the negative in the context of employment law, the EAT will almost always have to be able to identify a finding of fact which was unsupported by any evidence or a clear self-misdirection in law by the Industrial Tribunal. If it cannot do this, it should re-examine with the greatest care its preliminary conclusion that the decision under appeal was not a permissible option and has to be characterised as `perverse'."

We have considered with care the succinct but careful, critical analysis of the Industrial Tribunal's reasons, put forward by Mr Pratt, and without extending the length of this judgment by dealing with each one in turn, we have to say that we are driven to the conclusion that we are unable to identify a finding of fact which was unsupported by any , and I emphasise that word for it is italicised in the report, any evidence, still less are we able to detect a clear misdirection in law. It thus follows that in our view the decision of the Industrial Tribunal was a permissible option upon the evidence which was presented to it.

We have been more exercised by the allegations of the appearance of bias, caused it is said, by the interjections of the lay members during the course of the hearing. Our approach to this issue is to follow the guidance given by Mr Justice Peter Gibson in the case of Peter Simper & Co Ltd v. Cooke

[1986] IRLR 19

and in particular the passage at page 21 where it is said:

"We take it to be axiomatic that justice before a Tribunal must not only be done but also be manifestly seen to be done. That applies as much in our view to a Tribunal such as the Industrial Tribunal as it does to a formal court of law. Not only must there be no bias on the part of the Tribunal but also the Tribunal must not give the appearance of bias. Where there is an allegation of bias based on the conduct of one or more members of a Tribunal at a hearing, the test is, in our view, an objective one: would the reasonable observer present at the hearing, not being a party, or associated with a party, to the proceedings but knowing the issues, reasonably gain the impression of bias. That impression may be given by the appearance of a closed mind against a party on a matter which calls for decision by the Tribunal when that party has not yet presented all his evidence relevant to the point or had the opportunity of addressing the Tribunal on that evidence."

We have had great difficulty in determining the fact of what was said. There was no record made at the time and whilst, of course, we accept the affidavit of Mr Hodge, sworn on the 10th March 1993 as representing, as he avers, an accurate account to the best of his recollection of what was said on the 2nd October and the 13th November 1992, it does follow that that affidavit was sworn some months later. It appears that no note was made at the time, or indeed at the conclusion of the day's hearing which could then have been exhibited to that affidavit. We would have expected the Chairman of the Industrial Tribunal to have some recollection of the comment, said to have been made in such blunt terms by one of the lay members, that the dismissal was unfair subject to his discussion with his colleagues, but she has none. It may be that the words used, whatever they were, left different impressions in the minds of the Chairman and of the Advocate for one of the parties, who of necessity must be more acutely aware of the inferences to be drawn from anything which is said by any member of the Tribunal. The reasonable observer in our judgment is more likely to have reasonably gained the impression which was left in the mind of the Chairman. Upon that basis we do not find that the impression of bias was given following the test in the case of Simper . We add but this: whilst it is sometimes helpful to parties for the members of a tribunal to indicate those issues in the evidence which appear to the members of that tribunal to be of importance, in order that the advocates may, if they wish, focus the more sharply than they otherwise might have done upon such matters, it is no doubt better practice for members of any tribunal both to be scrupulous to avoid the impression of entering the arena and taking sides and further to be reticent in asking questions which may only anticipate the cross-examination which is to follow.

The Industrial Tribunal had the privilege, which is completely denied to us, because we are a Tribunal of law and not of fact, of seeing the witnesses giving evidence, of hearing their evidence and having heard their evidence, hearing the testing of it. In those circumstances it would be quite idle for us to say that we have a better view of that than the Industrial Tribunal. We can detect no error of law in this Industrial Tribunal and most certainly we cannot say that in any of the respects which are put forward, or indeed any other respect that occurs to us, this Industrial Tribunal acted in a way and reached a conclusion that no reasonable Tribunal could have done.

It follows, therefore, that in our judgment there is no point of law here and this appeal must be dismissed.

May we finally extend our thanks, which are no mere formality, to the way in which both Counsel have approached this matter succinctly and with great analytical skill. We are greatly indebted to both of you.