M & E Design Associates Ltd v Turton [1994] UKEAT 516_93_1309

EAT

M & E Design Associates Ltd v Turton

[1994] UKEAT 516_93_1309 · 1994-09-13

MR JUSTICE FRENCH: In this appeal Mr Latham appears for the Appellants. The Respondent is neither here nor is he represented, and indeed he gave notice, some ten days ago, to Mr Latham, that that would be the position.

This appeal arises out of a hearing which concluded on 28 May 1993, in the Industrial Tribunal at Ashford. At the conclusion of the hearing the Tribunal gave the following ruling:

"The unanimous decision of the Tribunal is that there was no relevant transfer of the Respondents' undertaking to Ricardo Technical Communications Ltd., and we therefore declare that the Applicant is entitled to receive a redundancy payment from the Respondents of £1845.00".

And they gave their reasons which it is unnecessary to this appeal, to recount. The complaint, which the unsuccessful Respondent makes in this appeal can be summarised as follows. At an early stage in the hearing and while the case was still being opened or perhaps just before the opening began, the Chairman, so the Appellants allege said:

"I think it is despicable that you are not paying this money to Mr Turton, after all it is only £1845.00".

If this was indeed said by the Chairman it was certainly an improper remark and one which indicated a degree of bias such as to put in doubt whether justice was done, or at least was seen to be done.

The material before us which is relevant to the Appellants' complaint is as follows. First, the affidavit which was sworn by Mr Veares and Mr Latham, who I interpose to say was conducting the proceedings on behalf of the Appellants before the Industrial Tribunal. That affidavit, so far as is material for present purposes reads thus:

"After entering the Tribunal room we sat down and exchanged brief pleasantries with the Tribunal Chairman. He then said directly to us both:

'I think it is despicable that you are not paying this money direct to Mr Turton, after all it is only £1845.00'".

Secondly there is before us a letter from Mr Humphrey, who was one of the lay members of the Tribunal. His letter addressed to the Tribunal Chairman reads, so far as relevant, in the following way:

"Further to your letter of the 2nd of this month, I have examined the copy appeal documents that you enclosed, along with my own notes taken at the time, and I can honestly say that I have absolutely no record or recollection of your having used, in my hearing, the phrase now complained of".

Thirdly there is a similar letter from the other lay member, Mr Willett. The letter is dated 3 August 1993 and what Mr Willett says in his letter is this:

"I have no note of the observation which it is claimed you made, but I do have some recollection of the circumstances. It is correct that early in the proceedings, before evidence was taken, there was a brief discussion between you and Mr Latham on the form the proceedings would take. It is my impression that the discussion could have been designed to enquire obliquely whether the interests of all parties might be best served by a short adjournment to discuss possible terms. Certainly the only part of the conversation which I can remember clearly is the word 'despicable' but I recall distinctly that it came at the end of a sentence, not near the beginning as the appellants allege. It is my belief that your use of the word could well have been qualified by a sentence such as 'If he was entitled to this money, to refuse to pay it would have been despicable'".

Finally we have before us a letter from the Chairman which again, so far as is relevant, reads as follows:

"Aided by the recollection of Mr Willett, I am prepared to accept that I said words in the form which he recollects. I may well have queried why the Respondents felt it appropriate to fight a case relating to a redundancy payment of only a modestly substantial amount. But I am prompted by Mr Willett's recollection now to recall that Mr Latham indicated that he wished to advance a full argument that a transfer of undertakings had taken place, and that his argument would be based on Bork , and on the other decisions of the European Court referred to in our decision, and that I said words to the effect that if there was a substantive defence, we must, of course, hear it.

While I do not for a moment seek to impugn the good faith of the recollection of Mr Latham and Mr veares, I submit that the version put forward by Mr Willett is more likely. If I had said what Mr Latham and Mr Veares say that I said, then I find it surprising that Mr Latham did not immediately take objection and ask me to discharge myself from the case".

As to the point which the Chairman made regarding the likelihood that Mr Latham would have sought to abort the proceedings, had any such remark as that asserted by Mr Veares and Mr Latham had been made, we can well understand why an advocate, perhaps particularly an advocate who is not an advocate by profession, should hesitate long before taking so definite a stand as that which the Chairman thought he should, and would have taken were any such remark made by the Chairman. We bear in mind the element of surprise which the advocate would experience. However that may be, we do not regard that observation by the Chairman as being of great assistance in this appeal.

We believe that it would be inappropriate for us, on the material just referred to, to reach a concluded view as to what precisely was said at the start or during the course of the hearing. There is however, an admission by the Chairman, that he may well have queried why the Respondent felt it appropriate to fight a case relating to a redundancy payment of only a modest financial amount. There is also the statement by Mr Willett that he clearly recollects the word "despicable" being used. There is further the joint recollection of Mr Veares and Mr Latham in their affidavit.

We are sufficiently troubled by the evidence as a whole, at least to conclude that some such phrase as that asserted by the Appellants was indeed used as might give an impression to the notional objective bystander of bias. We consider that as the Industrial Tribunal decision depended to a considerable extent on the reliability or otherwise of the evidence of Mr Veare, one of those to whom the phrase, whatever its terms was directed, justice was not done or may not manifestly have been seen to be done in this case.

Accordingly, not without some hesitation, we allow the appeal and direct a re-hearing before a different Industrial Tribunal in such region as the Regional Chairman may direct that the hearing should take place. In the result we allow the appeal.