Touchstone Productions Ltd v Patrick [1996] UKEAT 1216_95_0702

EAT
Touchstone Productions Ltd v Patrick
[1996] UKEAT 1216_95_0702 · 1996-02-07

JUDGE C SMITH QC :

This is an ex parte application for leave to proceed to a full hearing by the Respondent employers against the unanimous decision of an Industrial Tribunal sitting at Norwich on 8 June and 21 July 1995, when the Industrial Tribunal held unanimously that the Applicant before them, Mr Jason Patrick, had been constructively dismissed unfairly and they ordered that the Respondent, Touchstone Productions Ltd, should pay the Applicant the sum of £5,392.22 by way of compensation.At the hearing before the Industrial Tribunal, the Applicant, Mr Jason Patrick, was represented by his Father, Mr B Patrick Senior, and the Respondents, Touchstone Productions Ltd, were represented by Mr C T Lock, who is a reasonably experienced consultant, who has appeared on a number of occasions before industrial tribunals.There are three proposed grounds of appeal. Two are what we can perhaps by way of shorthand describe as conventional grounds of appeal. We do not seek to derogate from them in any way by that description, simply to distinguish them from the third ground, which is a more unusual ground of appeal because it raises an allegation that the Chairman was guilty of bias against the Respondent's case in the sense that it is the allegation that is sought to be made out is that the Chairman's conduct gave rise to an appearance of bias. We will, of course, have to consider that ground very carefully on its merits, just as we must consider the first two grounds. We remind ourselves that the Appellants need only show arguable grounds of appeal at this stage, i.e., that a point is reasonably arguable, in order to be able to proceed to a full hearing.Before we come on to deal with the grounds of appeal and the submissions that have been made to us by Mr Lock today, on behalf of the Respondents, in support of the grounds of appeal, we must, of course, summarise the findings and conclusions of the Industrial Tribunal and state the background to the matter. We make it clear that the details of the matter are, of course, to be found in the extended reasons, to which reference should be made for such details, and we do no more than set out in summary form the background to the matter and the findings and conclusions of the Industrial Tribunal.We should make quite clear that whilst we are recording the background to the matter, the findings of the Industrial Tribunal and the conclusions of the Industrial Tribunal, we always have in mind that we are going to have to consider the third ground of appeal, namely, the allegation that the Chairman gave the appearance of bias. We have that firmly in our minds.As is apparent from the decision of the Industrial Tribunal on its face the Applicants' case was based on constructive dismissal arising from an allegation of assault on 27 October 1994 upon him by the Respondents' production manager, Mr Marc Barnes. The Industrial Tribunal summarised its findings of fact in paragraph 4 in considerable detail and with apparent care. What emerges from those detailed findings in summary is that the Industrial Tribunal found that the Applicant was, at the material time, working in the "Clean Room" making video tapes for a customer when there came a time when he was called out from the Clean Room into an area called the "Air Shower" by Mr Marc Barnes and, on the findings of the Industrial Tribunal, the following took place. Mr Barnes, so the Industrial Tribunal found, taxed the Applicant as to why he was not following the customer's instructions with regard to the kind of material from which the tapes were to be made up. The Applicant then gave an explanation, namely that he had contacted the customer and been expressly told that he could use the material which he was, in fact, using, at which point, according to the findings of the Industrial Tribunal, Mr Marc Barnes, a much larger man than the Applicant, lost his temper and took hold of the Applicant by the throat.There was very clear-cut medical evidence that the marks on the Applicant's neck which were seen by the doctor on the following day, 28 October 1994, were consistent with the Applicant having been throttled, as appears from paragraph 4.11 of the Industrial Tribunal's decision. The second medical report read as follows:

"Re: Jason Robert Patrick

Thank you for your letter of 31 January. It is my opinion that the marks on Jason's neck area are consistent with him having been throttled."As is plain from the findings of the Industrial Tribunal, the Applicant, who on the findings of the Industrial Tribunal had been previously subjected to physical abuse by Mr Barnes, there and then left his employment with the Respondents. It is right to say that the Applicant did not pursue the procedure which was open to him under the Respondent company's internal grievance procedure, nor did he accept an offer of re-engagement which the Industrial Tribunal found to have been made to him by the Respondents at the hearing before the Industrial Tribunal but after the Tribunal had arrived at its decision that the Applicant had been unfairly dismissed. This can be seen from the findings of facts relating to the grievance procedure and the offer of re-engagement, which appear at paragraphs 4.13 and 4.15 respectively of the Industrial Tribunal's decision.The Industrial Tribunal, having set out the law with apparent care on the topic of constructive dismissal in paragraphs 5 to 9 of their decision by reference not only to the relevant provisions of the Employment Protection (Consolidation) Act 1978 but also by reference to the test laid down by Mr Justice Browne-Wilkinson in the case of Woods v WM Car Services (Peterborough) Ltd [1981] then proceeded to apply the law in paragraphs 10-12 of their decision and arrived at a conclusion, on applying the principles of constructive dismissal, that the Applicant had been constructively dismissed.The Industrial Tribunal then went on to consider the appropriate remedy in paragraphs 13-16 of their decision and in paragraph 15 they dealt with the fact that the Applicant did not use the grievance procedure in this way:
"We went on to consider whether the applicant had failed to mitigate his loss by not making use of the internal grievance procedure. In the light of the decision of the Employment Appeal Tribunal in the case of Lock v Connell Estate Agents (21.6.94 480/92) we decided that his not doing so could not constitute a failure to mitigate on his part."
They dealt with his refusal of the offer to re-engage him in paragraph 16 by describing it as being:
"wholly unrealistic and unreasonable to expect the applicant to have taken up this offer by reason of the nature of the circumstances giving rise to his resignation"
and they had already referred to that in addition in paragraph 13 of their decision in these terms:
"To suggest that the applicant should rejoin the respondent's small workforce and once again work under a production manager who had physically abused him on more than one occasion seemed to us to be wholly unrealistic and unreasonable."
Having listened to the submissions of Mr Lock in relation to the first two grounds of appeal, namely the finding relating to the grievance procedure and the finding relating to the offer of re-engagement, we are unanimously satisfied that there is no reasonably arguable point of appeal in relation to either of those matters. In our judgment they were essentially matters of questions of fact for the Industrial Tribunal to decide and, in our judgment, there is no possible ground for impugning those findings of fact. The fact that the decision of Lock v Connell , referred to by the Tribunal related to an appeal procedure rather than an internal grievance procedure, in our judgment, is neither here nor there. In the overall context of this particular case and the findings that were made by the Industrial Tribunal, there was overwhelming evidence in support of the Industrial Tribunal's conclusion that there was no obligation, in the circumstances as found by the Industrial Tribunal, placed upon the Applicant to make use of the internal grievance procedure and, accordingly, we reject both of those grounds as giving rise to any arguable point of appeal.We must turn now to consider the issue of bias and we remind ourselves once again that if the Appellants can demonstrate an arguable point in relation to this ground of appeal, we should allow the matter to proceed to a full hearing. We have been correctly referred by Mr Lock today to the decision of Peter Simper & Co Ltd v Cooke [1986] IRLR 19 which, in our judgment, is the authority which we would wish to follow in deciding whether there is an arguable ground of bias. In particular, we have reminded ourselves of extracts from the judgment of Mr Justice Peter Gibson in the Employment Appeal Tribunal, particularly at paragraph 10 and also at paragraph 17. With regard to paragraph 10, the learned Judge put the matter in this way:
"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."
That is the principle laid down in that case, which we must and do follow.The learned Judge also importantly, in our judgment, with respect to him, said in paragraph 17 of the judgment at page 22, the following:
"... we do not in any way underestimate the value, both in the formal English judicial system as well as in the more informal Tribunal hearings, of the dialogue that frequently takes place between the judge or Tribunal and a party or his representative. Nor do we wish to cast any doubt on the right of the Tribunal, as master of its own procedure, to seek to control prolixity and irrelevances. But there is a time and a place for the expression of concluded views by the Tribunal. The middle of a cross-examination before the employers' case has been opened or the employers' arguments presented is, in our view, plainly not such a time for such strongly expressed views to be aired by the chairman."
Those are the relevant extracts from that judgment against which we must judge whether there is an arguable ground of bias in this particular case.It is important that we should remind ourselves, as we do, that there was a complete conflict of evidence and a dispute as to what had happened in relation to the alleged assault on the Applicant, which the Industrial Tribunal ultimately found to have been proved, so that there was during the hearing an issue, and the main issue, indeed, was whether such an assault had taken place at all. The Respondents' case was that no such assault had taken place at all, as described by the Applicant, so that there was plainly a clear issue of credibility between the two sides for the Tribunal to determine and we fully bear that in mind when we are looking at this issue of bias.It is important, in our judgment, that we should refer to the way the matter has been pleaded before us. We should preface our remarks in this regard by reminding ourselves that it was entirely right for such a point to be taken at this stage. That appears from paragraph 21 of the judgement of Mr

Justice Gibson where the learned Judge said:

"It is, in our view, undesirable that the Tribunal accused of giving the opinion of bias should be asked itself to adjudicate on that matter. The dissatisfied litigant should ordinarily await the decision and then, if he thinks it appropriate, he should make his dissatisfaction with the conduct of the case by the Tribunal a ground of appeal."
There is no doubt that the procedure followed was the correct one. However, the matter does not rest there, since it is important, in our judgment, to look at the way the matter has been developed on the pleadings.In the notice of appeal the statement is made at 4c:
"That both throughout the proceedings and in reaching its decision, and in the extended reasons published, the Industrial Tribunal, and particularly the Industrial Tribunal Chairman, showed bias against the then Respondents now Appellants."
That is simply a bald and unparticularised allegation.It has become clear during the course of argument today that the only complaint relates to a complaint based on the Chairman's conduct during the proceedings. There is no complaint made with regard to the way in which the Chairman acted with regard to the way in which the decision was reached, let alone with regard to the way in which the extended reasons were published. That was the notice of appeal.There followed, no doubt on a direction being given by the Registrar, an affidavit, sworn by Mr Lock, on 11 October 1995. Again, in our judgment, if one looks at, as we did, at paragraph 4 of that affidavit, it would appear to remain extremely vague and deficient in particulars because paragraph 4 of the affidavit reads:
"That throughout the near day and a half of hearing evidence, the Chairman indicated by his demeanour and reaction to evidence being presented by the Respondent's two witnesses called that he had personally already decided the case in favour of the Applicant."
That is, on its face, a vague and unparticularised allegation which cries out for particulars.So it was that today during the course of argument with the assistance of Mr Lock, we elicited from Mr Lock that, in fact, there were only two exchanges between Mr Lock and the Chairman upon which reliance is placed as amounting to the appearance of bias on the part of the Chairman and those are the incidents which are referred to in paragraphs 2 and 3 of the affidavit, which we thought it right to allow Mr Lock to amplify for us today so that we could have the full picture with regard to those allegations. We must make it quite plain that those are the only two matters upon which reliance is placed, despite the wording of paragraph 4 of the affidavit and the wording of paragraph 4c of the notice of appeal.In our judgment, accordingly, we must apply our minds solely to these two particular allegations. The first allegation of bias arose in the following way at the hearing. During the course of Mr Lock's cross-examination of the Applicant, Mr Jason Patrick, there came a point when there was a discussion as to the dimensions, nature and overall purpose of the Air Shower area and it was necessary, apparently, for Mr Lock to explain to the Chairman, who was not immediately able to understand what the Air Shower area was, that it was a small area of about 3 ft by 2 ft. Mr Lock was engaged in explaining the nature of the Air Shower cubicle and came to make a remark along these lines to the Chairman: "You should understand the nature of the room because I would not want you to form a view that it was a torture chamber", or some such remark, to which it is alleged and for the purpose of this hearing, at any rate, we accept, the Chairman responded by saying:"that may well be the case" .According to Mr Lock, he was taken aback by this comment as, according to Mr Lock, was Mr Marc Barnes.In our judgment, looking at that exchange between Mr Lock and the Chairman, we are satisfied that no reasonable observer present at the hearing would possibly have gained the impression of bias from such an exchange as that. The observation made by the Chairman is, in our judgment, wholly ambivalent. It is susceptible of almost any number of different meanings, including, of course, the meaning that the Chairman was simply accepting what Mr Lock had said. In our judgment, to place an interpretation on those words to the effect that they given the appearance of a closed mind on the part of the Chairman, or even the appearance of any other kind of bias, is simply not sustainable and, accordingly, we reject that particular ground.We turn to consider the second of the only two matters which are relied upon as giving rise to a ground of appeal in relation to bias. The second matter is set out in paragraph 3 of the affidavit in somewhat vague and unparticularised terms and for that reason we felt it necessary to elicit the full circumstances from Mr Lock during the course of arguments this morning. The matter occurred in the following way: a Mr Ayres, a fellow employee of the Applicant, had given evidence in support of the Applicant's case, that he had seen the Applicant come from the Air Shower area and at that time he had two marks on either side of his Adam's apple. According to Mr Lock, and we are prepared to accept what he tells us for present purposes, Mr Jason Patrick had agreed in cross-examination that the marks on his neck could have been caused by the zips of the coat he was wearing rubbing against his neck. It was in those circumstances that Mr Lock sought to cross-examine Mr Ayres by asking him the following question or a similar question:
"Did you have occasion to see the applicant's neck before he went into the Air Shower?"
The Chairman then allegedly stated words to this effect:
"I am not going to allow that question. It is irrelevant to the case."
Mr Lock's response was equally firm, namely, "I think it is relevant". The Chairman, at that stage, would not allow the question to be put. Ultimately, however, what allegedly occurred was that the Chairman did allow the question to be put. It was put. The answer was given by the witness:
"I did not see Mr Patrick when he went into the Air Shower"
. At which, the Chairman, who had allegedly not taken a note of either the question which he ultimately allowed to be asked, or the answer, allegedly made an observation along these lines:
"Are you satisfied now, Mr Lock?"
Accepting that this is an accurate account, which we do for present purposes, once again, in our judgment, such an exchange cannot give rise to any impression of bias on the part of a reasonable observer present at the hearing, let alone, in our judgment, the appearance of a closed mind.Whilst we bear very much in mind that we have not heard the Chairman's version, we accept that on Mr Lock's account, this was an occasion when Mr Lock was correct in his application to ask the question which was relevant and the Chairman, equally, was wrong and incorrect in declining to allow the question to be asked and we further accept that it would be unfortunate were the Chairman to have demonstrated irritation at the situation which arose when the question was put and answered. But in our judgment, the only proper characterisation of that exchange, if it took place, is that it was an unfortunate and strong exchange relating to the relevance or otherwise of a particular line of questioning in cross-examination. In our judgment as such, it cannot sustain an arguable ground of bias. We repeat that we have dealt with the matter on the hypothetical basis of allegations made by Mr Lock and we emphasise that there is no finding, one way or the other, as to what did take place.We note the very different kind of observations which were unfortunately made by the Chairman in the case of Peter Simper & Co v Cooke . Of course we accept that every case is different and that it is not necessary for an Applicant to establish outrageous remarks or anything of that kind and we interpose that we are not suggesting the remarks in the case of Peter Simper were outrageous but rather that it is always a matter of degree. However, in our judgment, on careful analysis of both these points, no proper case can arguably be sustained that they amount to grounds for believing that the Chairman could have given the impression of bias to a reasonable observer present at the hearing and, accordingly, for those reasons we must dismiss this application.