Gallagher v Kabil (t/a Laywell Beds) [1995] UKEAT 216_95_0905

EAT
Gallagher v Kabil (t/a Laywell Beds)
[1995] UKEAT 216_95_0905 · 1995-05-09

JUDGE HULL QC:

In this case, Mrs Gallagher applied to the Industrial Tribunal sitting at Leeds on 19 and 20 December 1994, under the chairmanship of Mr Latham, with two industrial Members.She complained about her employment by the Respondent, Mr Amir Kabil, trading as Laywell Beds at Dewsbury in West Yorkshire. She said that she had complaints under the Wages Act in respect of the wrongful deduction of 50p an hour from her wages. She said that she had a claim under the Equal Pay Act. She put forward comparators. Men, she said, were earning more than she was for the same work and she also claimed that she had been subjected to acts of discrimination and those were by reason of sex and by reason of race.The Tribunal heard at the same time complaints by her husband, Mr Gallagher. The hearing took two days and each party was represented by a solicitor advocate.At the conclusion of the hearing the Tribunal found in favour of Mr Gallagher, who made comparatively small claims. That involved preferring his evidence to that of the Respondents. They then had to deal with Mrs Gallagher's claims and all those were rejected by the Tribunal. They preferred the evidence that the Respondents produced. They took particular note of certain matters, which they set out in their decision, for preferring that. Of course, they do not need to do that but they have done and it appears, on paper, to be a very careful and considered decision. I say, "They have no need to do that", a Tribunal which actually sees the parties and has the advantage of hearing them examined and cross-examined and hearing what they say about any documents there are in the case, and so on, has an enormous advantage over any Appeal Tribunal dealing only with matters of law; but they do give reasons for their decision and it appears, as I say, to be a long and careful decision, giving their reasons for rejecting Mrs Gallagher's case. They found that although she was paid a very low sum, that was by agreement. They found that, in fact, there were no true comparators. She was not entitled to claim under the Equal Pay Act and they found that she had not, in fact, been discriminated against in any of the ways she indicated, either by reason of race or gender. They made some remarks to which she took exception.She was employed as a sewer in a bed-making concern and, apparently, the other members of the firm, apart from her husband, the employers and employees, were of Asian origin. The Chairman remarked that this was not the first Asian firm for which Mrs Gallagher had worked. That, on one view, was a sensible and material observation because it may very well be, and certainly it seems to have been the view of the Tribunal, that people who are of Asian origin may have their own ways of doing things and so, of course, the mere fact that manners may be different or ways of going about things may be different, might cause a person who was entirely new to it to feel that there was something wrong here or to be upset. If the Tribunal in their reasons were merely pointing out that they were diverting their attention from any such routine matters and looking for matters of genuine discrimination or unfairness, they were directing themselves rightly. Mrs Gallagher seems to have thought that the Tribunal were saying that she should put up with that sort of thing because she worked for people of Asian origin and, naturally, she says, "Well, that would be quite wrong - to say simply because I am used to working for people of Asian origin that I should put up with anything that I suffered there" and she makes that point.Most seriously, and this is the part of the case which has given us great anxiety, she makes allegations of bias against the Tribunal. She says that throughout the proceedings her former employer displayed bias. She says that she was prevented by the chairman from giving evidence relating to sick notes obtained by her husband when he was off work due to illness; and that the Chairman prevented her from giving evidence as to specific occasions on which her former employer had exhibited abusive behaviour, and that was very damaging to her case. Then she recounts an incident when a Mr Raja, the nephew of her former employer, was giving evidence and he said that the Respondent, Mr Kabil, had been abusive to her. Then, she said, there was some sort of disturbance from the back of the Court and the witness changed his evidence and was allowed to do so, she complains. About those matters the Chairman has been asked, because whenever there is an allegation of bias against the Chairman, or the Members of the Tribunal as a whole, then it is the practice, of course, to ask the Chairman what he says about that. He replies in this case that they considered the matter with great care and, as he points out, took two days over it. He makes the very important point that neither of the solicitors who are there took any point on the conduct of the hearing or the attitude of the Tribunal. That is, in our view, a very important point because if there are signs of bias then it is the duty of the advocates, and not merely the advocate for one side but for both, to point out that there appears to be a biased remark and to invite its withdrawal or whatever seems appropriate at the time. "I do not think" says the Chairman, "that the allegation is well-founded". He says with regard to the particular allegations that his notes show that the sick notes in question were the subject of cross-examination of the Applicant and were exhibited in the bundle of documents and were considered by the Tribunal. So far as the abuse is concerned, he says that specific allegations were set out in the decision so far as they could be and it is very noticeable in the decision that the Tribunal complain that much of what the Applicant told them was in the nature of general allegations which, of course, were very difficult to deal with. With regard to the alleged intervention from the back of the Court by the Respondent, which caused the witness to alter his evidence, the Chairman says:
"I have looked at my notes of evidence again ... the only area I can find where the witness concerned was checked as to what he was saying was in his reply to questions that I personally raised of him when he was referring to the fact that he had heard rows between the respondent and Mr Gallagher. It is apparent from my notes that I raised the matter with him and that it was clarified to me that it was Mr Gallagher not Mrs Gallagher. I can recollect no exclamations or gesticulations as indicated by the applicant in the Notice of Appeal. However, my notes make it clear on this subject that I confirmed with the witness what he had said, that it was with Mr Gallagher and that he had not heard any rows with Mrs Gallagher."
Very often, speaking from experience of course, witnesses tend to speak in the wrong direction, sometimes a noise occurs just at the moment when a witness is speaking. One does have to clarify what is said. Very often a witness goes too fast or has an unfamiliar accent and, of course, the Chairman does have to confirm the evidence. Sometimes "helpful" people sitting in Court notice a "mistake" and they also intervene. All that is almost routine to anybody who sits in the County Court. If this was true evidence of bias then, as I remarked in the course of argument when Mr Devlin was addressing us, nothing could be more dangerous or damaging to a party's case than to be seen trying to make a witness alter his evidence. If he does alter his evidence in response to that, the Tribunal will be likely to take an adverse view of him and of the person prompting him.Those are the allegations which give us most concern. With regard to the other ones, they seem to be complaints made jointly against the solicitor acting for this lady and the Tribunal. The comment on that has to be that if the solicitor thinks it right to take a particular line and that finds favour with the Tribunal, whether or not the lay client thinks that that is the right way for the solicitor to proceed, it is not something of which a complaint could be made in law. One knows very often that there are all sorts of contentions suggested by the client. When one sees the Tribunal and the way in which the Tribunal's mind is moving, one sees at once that it would be fatal to go down that road and one hopes to succeed in, perhaps, a different line.Allegations made against the solicitor are not really matters which can be raised here. What we do take seriously are the allegations of bias. That would be, of course, a fatal defect in the proceedings of any Tribunal and we also bear in mind that it is not enough for the Tribunal to be entirely impartial. The proceedings must be seen to be impartial. If a reasonable person sitting in the Tribunal would have said, "Now this won't do. This looks like bias. This party is not being treated fairly at all and this does not look like a fair and equal trial" that would certainly mean that the decision could not be supported even by a Tribunal like ourselves, which is confined to points of law. It would be certainly a point of law that we would allow.Mrs Gallagher makes these three complaints of ostensible bias. We bear in mind that this was a Tribunal which most certainly did not accept everything the Respondent said and, in particular, preferred the evidence of Mr Gallagher. They set out their reasons for rejecting Mrs Gallagher's evidence where it is important in a way which seems to us to show considerable thoroughness. On paper it looks a carefully reasoned decision. We also bear in mind that the Chairman has denied any such exhibition of bias or unfairness and has explained matters again in an ostensibly convincing and fair way. We also bear in mind that the two Members are there and they are not, of course, mere wooden figures who do nothing. If they thought that their Chairman was behaving in a biased way, they would at once be worried, anxious and try to check it and would ask him not to say this or do that or dissociate themselves from it. It is not unknown, of course, for the two Members to dissent from their Chairman, and we do not think that they would have stood by or sat there whilst the Chairman was showing bias.Most important of all, we bear in mind that each of these parties was represented by a solicitor and it is a very important duty of a legal representative to do what he or she can to prevent any bias, whether it is by a judge or a Tribunal or anybody else and, at the very least, one would expect that if such efforts were unsuccessful, the solicitor would ask for it to be recorded that he had objected to a particular remark or a particular ruling or had asked to be heard and been refused or whatever it might be that was said to evidence bias. We would expect that when the case came here the solicitor would say, "I felt disadvantaged and it appeared to me that the Tribunal was showing bias". That might be supplemented by the evidence of others who were present, such as Mr Gallagher himself. That would be evidence to which we should be bound to pay very serious regard. There is nothing of that sort.Mr Devlin has made the points which Mrs Gallagher wishes to make with great moderation and has pointed out to us carefully where those points are not points which we can possibly give effect to, but he says that these allegations of bias are such that we ought to allow the appeal to proceed.We have all considered this, as I say, with anxiety. Having heard Mr Devlin and considered it again, and having regard to all we have heard and read, we are quite satisfied that there is no case of bias made out here. We can only consider such matters if there are reasonable grounds for asserting them. We think there are no reasonable grounds here. It appears to us that this Tribunal did its duty carefully. The mere fact that they may have been wrong or reached a wrong conclusion is one of the ordinary incidents of life before Tribunals and, indeed, any other Courts. What we have to look for is any error of law. If we had found any evidence here of bias we would, of course, have allowed the appeal to proceed but we cannot find such evidence, despite what Mr Devlin has said to us and, therefore, we have to say that the appeal falls to be dismissed at this stage. That is our ruling.