Leary v Nurdin & Peacock [1996] UKEAT 184_95_2401

EAT
Leary v Nurdin & Peacock
[1996] UKEAT 184_95_2401 · 1996-01-24

JUDGE CLARK:

This is an appeal by the employee, Mr Leary against a decision of the Reading Industrial Tribunal (Chairman: Mr C Winter-Taylor) sitting on 31 October 1994 that he had been unfairly dismissed by his former employers, Nurdin & Peacock, but that he had contributed to his dismissal to the extent of 100 per cent and was therefore not entitled to any compensation.The appeal falls into two distinct compartments. First it is said that the Tribunal gave the appearance of bias and that as a result the decision was unsafe and unsound and should be set aside on this ground. Secondly, the finding of 100 per cent contribution is challenged.

BIAS

It is not necessary to show actual bias on the part of a Tribunal. It is sufficient if the facts reveal a real danger of bias. The question is whether an independent observer present at the Tribunal and aware of the issues in the case could reasonably take the view that a party to the proceedings might reasonably feel that an injustice might occur during the hearing see R v Gough [1993] AC 646 ; and Halford v Sharples [1992] ICR 146.An allegation of apparent or potential bias may be raised at any time. Normally a party should wait until after the proceedings are completed before raising the allegation, since it is usually inappropriate to expect the Tribunal against whom the complaint is made to adjudicate on such a matter, Peter Simper & Co Ltd v Cooke [1986] IRLR 19. Conversely, where a complaint of a transient matter, such as a member of the Tribunal falling asleep, is made, it should normally be raised with the Tribunal at the time, Red Bank Manufacturing Co Ltd v Meadows [1992] ICR 204 .These general principles must be adapted to the particular facts of the case.

THE COMPLAINT

The point having been raised in the Notice of Appeal, a direction was given pursuant to paragraph 12 of the Employment Appeal Tribunals Practice Direction of 17 February 1981, that the Appellant should file affidavit evidence in support of the complaint.The Appellant has sworn an affidavit, as has Miss Deborah Leighton, an employee of the Respondent, who was called by the Appellant to give evidence before the Industrial Tribunal. He appeared in person on that occasion (as he does today). Between the Tribunal hearing and this hearing before us he has had legal advice from Solicitors, who settled the Notice of Appeal.In his affidavit, sworn on 16 February 1995, the Appellant states that having arrived at the Tribunal building with Miss Leighton he was told to wait in the Applicant's room. He continues:
"3.1 ... There was a glass panel in this room and through it I could see a number of people going in and out of the Respondent's room. I saw the clerk taking in a cup of tea or coffee and I recall making a joke to my witness about the Respondent getting preferential treatment. We saw several people, at least seven, going into and out of that room and I assumed that they had been to the toilet. There was a lot of laughing and jocularity going on in the waiting room and again, as a joke, I said to my witness that may be they were the Tribunal members.
3.2. ...3.3. When I walked into the Tribunal room, I could hardly believe my eyes when I saw that at least two of the Tribunal members (including the Chairman) were some of the people who had been laughing and joking in the Respondent's waiting room. I tried to dismiss any negative thoughts from my mind but I was by then wishing that I had been legally represented.3.4 ... Had I been given an opportunity to object to the Tribunal members continuing to hear my case, I believe that I would have objected and then taken legal advice."He also states that, when the Chairman of the Tribunal decided to adjourn for lunch the Applicant and his witness left first, leaving both the Respondent's party and the Tribunal members still in the room.He further complains that during the hearing the Tribunal upheld an objection by the Respondent's representative, Mr Waterlow, to his producing his diary in evidence on the basis that it had not been listed in his bundle of documents, whereas the Tribunal admitted in evidence a document produced by Mr Waterlow which had not appeared in the Respondent's list of documents, notwithstanding objection by the Appellant.Miss Leighton, in her affidavit sworn on 5 June 1995, states that as she and the Appellant went into the Applicant's room she saw the Respondent's witnesses, Mr Brookes and, she thinks, Mr Morrison in the Respondent's waiting room. She also saw a man who looked like Douglas Hurd, the then Foreign Secretary in the Respondent's room. He turned out to be a member of the Tribunal. She later says she saw a man who turned out to be the Industrial Tribunal Chairman walking past the Applicants room and concluded that he had come out of the Respondents' room.She confirms that at the short adjournment she and the Appellant left the Tribunal room before the Respondent's party and the Tribunal members.Thus the main allegation is that the members of the Tribunal were fraternising with the Respondent's party before the hearing.This suggestion was put to the Chairman, who responded to the Appellant's affidavit in written comments dated 15 May and 18 August 1995. His account is clear and unequivocal. He states that he did not enter the Respondent's waiting room. He did not know Mr Waterlow, nor the Respondent's witnesses. Neither he nor the lay members had any private conversation with the Respondent's party during the luncheon adjournment.The Chairman's account is entirely supported by an affidavit sworn by Mr Waterlow on 20 June 1995. He states that he arrived at the Tribunal at about 9.15 am and went into the Respondent's waiting room where he was joined by Messrs Brookes and Morrison. They remained there until they were called into the hearing at about 10.15 am. During that time there was no contact between the Respondent's party and the Tribunal members. He said he did not recognise any of the three Tribunal members. When the Tribunal broke for lunch there was no conversation between members of the Industrial Tribunal and the Respondent's party. He cannot recall the document which the Appellant says he produced during the course of the hearing.We have considered the geography of the waiting rooms in use that day at Reading. The door to the Applicant's waiting room was solid. It was surrounded on each side by 9" wide panes of glass stretching the full height of the door.Both Mr Lynch and Mr Waterlow accept that either the Chairman and the Respondent's representatives have deliberately lied about what happened in the Respondent's room before the Industrial Tribunal hearing commenced, or Mr Lynch and Miss Leighton are mistaken in what they think they saw. Having considered the material before us we are quite satisfied that it is the latter. It follows that there is no factual basis for the Appellant's complaint of bias and we reject that part of his appeal.As to the second part of the appeal, we should say that Mr Leary has raised a number of complaints which in our view cannot be categorised as points of law. The point of substance concerns the Industrial Tribunal's finding of 100 per cent contribution.The background to the dismissal is that the Appellant was employed by the Respondent at its Reading warehouse from 9 April 1979 until his dismissal on 27 April 1994. By that time he had risen to the rank of Senior Buyer.In early 1994 the Respondent decided to introduce a new uniform for staff. It consisted of a T-shirt and trousers similar to jeans. The Appellant objected to wearing such a uniform. He felt that his position required the wearing of a collar and tie as in his old uniform.On 24 April the Appellant was given his new uniform. All staff issued with the new uniform (not all received them in time) were instructed to wear the uniform on launch day.On launch day, in the morning, the Appellant's Manager, Mr Brookes saw that he was not wearing new uniform. The Appellant refused to wear it - he said it was degrading. Accordingly Mr Brookes told him to wear the uniform the next day and warned of disciplinary action if he did not do so.On 26 April the Appellant was not wearing the new uniform. He was interviewed by Mr Morrison, another Manager, but maintained his position. He was told to wear it or face disciplinary action. He remained adamant. He was then instructed to attend a disciplinary hearing the following day.At the disciplinary, held by Mr Brookes, the Appellant repeated his position. Mr Brookes adjourned for 25 minutes in order to discuss the matter with Personnel. On his return Mr Brookes asked him whether he would wear the uniform. The Appellant declined. He was then dismissed.The Industrial Tribunal found that the reason for dismissal related to the Appellant's conduct. It expressed its conclusions at paragraphs 16 and 17 in this way:
"16 The Tribunal then had to consider whether, in all the circumstances, the respondent acted reasonably. At no time prior to or at the disciplinary hearing was it explained to the applicant that his continued refusal to wear the uniform would result in his dismissal. In evidence, the applicant stated that had the full consequences been spelt out to him, he would have worn the uniform. The applicant hoped that the respondent would allow him to continue wearing his collar and tie. The Tribunal finds that by not warning the applicant that his continued conduct would result in his dismissal, the applicant's dismissal was unfair.
17 The Tribunal then had to consider the question of contribution. It was the respondent's company policy that all staff should wear the uniform with the exception of senior staff. The applicant was asked many times to wear the uniform but refused to do so. By his continued refusal to obey a reasonable instruction from senior staff of the respondent, the Tribunal finds that the applicant had contributed 100% towards his dismissal. Although the applicant's dismissal was unfair, he is not entitled to any compensation."Mr Lynch accepts that a finding of contribution was inevitable but submits that a finding of 100 per cent contribution in these circumstances is illogical and perverse.In support of the Industrial Tribunal's findings Mr Waterlow submits that the Appellant's consistent refusal to wear the uniform, despite a number of formal meetings, including a disciplinary hearing, was so fundamental that a finding of 100 per cent contribution was appropriate. At any rate, it was a permissible option, and it is not for this Tribunal to substitute its own views for that of the Industrial Tribunal.The power to reduce a compensatory award by reason of the employee's contribution is contained in Section 74(6) of the 1978 Act, and in relation to the basic award in Section 73(7B).It is now well-established law that a 100 per cent finding of contribution can be made, albeit in exceptional cases. It must, however, follow in a 100 per cent case that the employee's conduct is the sole cause of the dismissal.In this case the Industrial Tribunal note, at each stage that the Appellant was never warned that he risked dismissal if he persisted in his stance. It records in paragraph 16 the Appellant's evidence that if the full consequences had been spelled out he would have worn the uniform. The Tribunal do not reject that evidence; they make no express finding, however, their conclusion that the dismissal was unfair in the absence of any warning of dismissal, coupled with the fact that there is no finding for the purposes of Section 74(1) of the Act that such a warning would have made no difference to the outcome, leads us to conclude that it cannot properly be said that the Appellant's conduct was the sole cause of the dismissal.In these circumstances it seems to us that this Tribunal's finding of 100 per cent contribution is inconsistent with the way in which it dealt with the absence of a warning of dismissal. If a warning would have caused the Appellant to wear the uniform, then there would have been no dismissal at all. It follows in our judgment that there were two causes of dismissal; the Appellant's refusal to obey his employer's instruction and the employer's failure to warn him of the consequences of such refusal.It follows, in our view that this Tribunal fell into error in its assessment of contribution. The appeal must be allowed to this extent. We have considered our powers under Schedule 11 paragraph 21(1) of the 1978 Act. Rather than remit the case on this aspect we shall exercise our powers under that rule and substitute a finding of 75 per cent contribution in respect of both the compensatory and basic award.We hope that the parties will be able to agree compensation. If not, we direct that the case be remitted to a fresh Industrial Tribunal for that purpose.