Roberts v United Friendly Insurance Plc [1996] UKEAT 436_95_1306

EAT
Roberts v United Friendly Insurance Plc
[1996] UKEAT 436_95_1306 · 1996-06-13

JUDGE CLARK:

This is an appeal by Mr Roberts against a decision of the Sheffield Industrial Tribunal (Chairman: Mr O T B David, sitting with lay Members, Miss B Percival and Mr Godfrey) dismissing his complaint of unfair dismissal against his former employers, United Friendly Insurance. The hearing was spread over three days; 21 March, 31 May and 5 August 1994. Extended Reasons for the Tribunal's decision are dated 11 August 1994.

Background to the complaint

The Appellant was employed by the Respondent from 9 September 1976 until his dismissal with effect from 21 September 1993, as an insurance agent at their Barnsley branch.The background to his dismissal began with an investigation into misbehaviour by another agent in the Barnsley branch, one Pell. This occurred in early August 1993. In the course of that enquiry Pell alleged that the Appellant had falsified information in relation to a No Claims Discount (NCD) on a motor insurance policy, issued to a client, Mr Summers.This allegation was in turn investigated. The Respondent's turned up two possible acts of misconduct by the Appellant. First, the NCD alteration. It appears, and this has always been accepted by the Appellant, that he had tippexed out information contained in an AXA Renewal Form and substituted a false figure, thereby inflating the insured's NCD. Secondly, it emerged that he had failed to account for a cheque for £97.06 from a client on his reconciliation statement for 18 August 1993. The following week he made up the shortfall.An investigatory hearing was held before Mr Spraghan, the Area Manager, on 6 September 1993. The allegations were put to the Appellant. In his evidence to the Industrial Tribunal the Appellant said he put his hands up to both matters. He was suspended pending formal disciplinary proceedings. Again, in evidence, he said:
"... I knew I had done wrong. I expected to be severely reprimanded. I thought they might take away motor insurance from me."
The disciplinary hearing took place on 16 September 1993. The Appellant was represented by a trade union official, Mr Yeaman. Mr Spraghan, accompanied by Mr Foster, the Branch Manager, conducted the hearing. The Appellant repeated his admissions and advanced mitigating circumstances. The Respondent's reserved their decision. The following day they decided to dismiss him for misconduct.He appealed against that decision. On 20 January 1994 his appeal was heard and dismissed.Meanwhile, on 3 November 1993, the Appellant presented a complaint of unfair dismissal. He gave the following details of his complaint:
"The Area Manager did not accept or believe mitigating circumstances with regards to a misconduct on my part.
He over-reacted and dismissed me even though I had 18 years service with the company. I was the top agent in our office, and fourth from top in the area. I was always conscientious and this was the first time he had to discipline me."

The Tribunal Decision

Having set out the facts, the Industrial Tribunal reached the following conclusions:(1) That the reason for dismissal related to the Appellant's conduct.(2) That whereas the withholding of the £97 would not of itself justify dismissal, the falsification of Mr Summers NCD was by any standards a very serious matter. Taking the two offences together they concluded that dismissal fell within the range of responses open to a reasonable employer. There was no procedural irregularity. The dismissal was fair.

The Appeal

The original Notice of Appeal, drafted by Mr Stokes, the Employment Adviser, who had represented the Appellant before the Industrial Tribunal, raises two broad issues; first, bias on the part of the Chairman and one of the lay Members, Miss Percival. Second, the complaint that the Industrial Tribunal had erred in refusing to allow the Appellant, through his representative, to advance a case that the decision to dismiss had been influenced by the Appellant's trade union activities.The appeal was listed for a Preliminary Hearing before this Tribunal (Maurice Kay J presiding) on 18 October 1995. There was on that occasion before the Employment Appeal Tribunal an Affidavit sworn by the Appellant on 17 October 1994 in support of the allegations raised in the Notice of Appeal. On that occasion the Appellant was represented by Mr Oldham of Counsel, who appears before us today. The E.A.T. ordered that the appeal be allowed to proceed to a full hearing; that the Industrial Tribunal Chairman and lay Members be invited to comment on the Affidavit sworn by the Appellant on 17 October 1994; that the Chairman be asked to produce his Notes of Evidence and that the Appellant enter an amended Notice of Appeal not less than twenty-eight days before the full hearing. Provision was made for the exchange of Skeleton Arguments.Pursuant to that order, the Chairman has produced his Notes of Evidence and commented on the Appellant's Affidavit in writing, as have the two lay Members. We have that material before us in considering this appeal.

The grounds of appeal

These are now re-formulated in an amended Notice of Appeal settled by Counsel and dated 16 May 1996, in these terms:"(i) there was prejudice or bias in the Tribunal. The Appellant will rely on(a) the matters stated in his Affidavit of 17th October 1994 and any further evidence to be sworn by him or his representative on this point;(b) the matters in (ii) below; and(c) the comment made at page 24 of the Chairman's notes of evidence that "(the Applicant's representative) is thrashing through the documents in the hope that something will turn up", which was an unwarranted description of the representative's behaviour;(ii) the Tribunal failed to permit the Applicant to adduce evidence as he was entitled to do, namely evidence in chief from the Applicant and Mr Wasteney concerning the reasons for the Appellant's dismissal."Thus the issues in this appeal are confined to allegations of misconduct on the part of two Members of the Industrial Tribunal, the Chairman and Miss Percival.E.A.T. Practice Direction dated 29 March 1996 [1996] IRLR 430 .Paragraph 9 of the Practice Direction sets out the procedure to be followed where a party to an appeal intends to complain about the conduct of the Industrial Tribunal (for example, bias or improper conduct by the Chairman or lay Members or procedural irregularities at the hearing).The practice is to require full particulars of the complaint to be pleaded in the Notice of Appeal. Directions may then be given for a complainant to file Affidavit evidence in support of the complaint. That evidence is then sent to the Industrial Tribunal Chairman and/or Members about whom complaint is made, giving them an opportunity to comment. Such comments, usually in the form of letters to the E.A.T., are then copied to the parties.No complaints of this kind will be entertained by the Appeal Tribunal unless that procedure is followed.

The present case

Those procedural steps have been complied with in this case. We have before us the amended Notice of Appeal setting out the nature of the complaint; the Appellant's Affidavit in support sworn on 17 October 1994; the comments of both the Chairman and lay Members sitting with him; the Chairman's Notes of Evidence and a letter from Mr Seehra, the Respondent's Personnel Manager, who conducted the Respondent's case below and before us.

Preliminary matters

Mr Oldham applied to put before us a supplementary Affidavit, sworn by the Appellant on 10 June 1996. We considered that Affidavit de bene esse . It consists largely of the Appellant's comments on the Chairman's Notes of Evidence; matters which could be and were dealt with by way of submission by Mr Oldham; it was served far too late. We declined to admit it in evidence.The second matter raises a procedural point of considerable importance. In his Affidavit sworn on 17 October 1994 (the Affidavit), the Appellant says this:
"2. Throughout the hearing, one of the lay members, Ms Percival, made her feelings about my case clearly known. If I, my witnesses or my representatives said anything with which she disagreed, she would roll her eyes and make disapproving noises or sit back in her chair in exasperation. By way of contrast, she did none of the above when the Respondents, their witness or representative were talking. I found this attitude most disconcerting and soon formed the impression that she was not interested in listening to my version of events. This had the additional effect of making me feel very nervous when it came to my giving evidence. I also noticed that, on at least one occasion when I was giving evidence, she whispered to the Chairman. I could not hear what she was saying, but found this interruption very off-putting. Again, she did not do this when the Respondents gave their evidence.
3. In addition, the Chairman's manner towards my representative was, at times, nothing short of aggressive. I observed this particularly when I was giving my evidence (which again made me feel even more nervous) and when my representative brought up the matter of leading evidence concerning my Trade Union activities. I refer here to paragraph 6(g) of the Notice of Appeal.4. The manner of the Chairman and Ms Percival was all the more apparent as the third member of the Tribunal did not behave in any of the ways mentioned above at all. He made no reaction to the evidence given by either party and asked balanced questions at all times. He seemed at least to be listening to the evidence with an objectivity I did not observe with the Chairman and Ms Percival.5. For the above reasons, I consider there was bias on the part of the Tribunal and that I did not have a completely fair hearing."Each of the three Members of the Industrial Tribunal responded by letter to the allegations raised by the Appellant in the Affidavit.The Chairman wrote to the Registrar on 30 November 1995 in these terms:
"I now enclose a transcript of my notes of evidence and letters from the two members.
I draw your attention to my observation on page 24 of those notes where I recorded that the applicant's representative, Mr Stokes was "thrashing through the documents in the hope that something will turn up". I have no recollection of the case itself but should perhaps say that Mr Stokes used to appear before me frequently. He was always a polite yet persistent advocate who left no stone unturned in his efforts on behalf of his client.Other than to say that I was surprised by the allegations against Miss Percival I have nothing further to add."Mr J Godfrey, against whom no complaint is made, wrote to the Registrar on 10 November 1995 as follows:
"I have no recollection of the case except that I remember that it was tediously presented by Mr Stokes.
On what was probably the second day of the hearing the Chairman had occasion to reprimand a young man who was sitting behind the applicant. I had noticed that the young man was expressing his views to the respondent's evidence by his gestures and body language. The Chairman, quite rightly in my judgement, asked him to stop doing so and told him he would have an opportunity to give evidence in due course."Finally Miss Percival wrote on 10 November 1995 setting out the text of a letter which she had written to the Chairman in February 1995 commenting on the Affidavit. She said this:
"While I appreciate that copies of the EAT letter and sworn affidavit relating to the above (this case) were sent to me `for information' and that the EAT called for comment from the Chairman only, may I say that I was quite upset to read the affidavit and the allegations made in paragraph 2 as to the `conduct unbecoming' of lay member Ms Percival. Needless to say I strongly refute that I did (or could) behave in such an unprofessional way.
However, as paragraph 3 alleges that your own conduct was at fault - equally without foundation - I am left to assume that it is because Messrs Roberts and Stokes are unable to fault the decision of the hearing that they are resorting to such underhand tactics."Mr Seehra, the Respondent's representative, commented on the Affidavit in his letter dated 4 June 1996 as follows, by reference to the paragraph numbering in the Affidavit:
"2. I do not recollect Ms Percival behaving in the manner described. She did whisper to the Chairman on at least one occasion, but it certainly did not seem to upset or annoy anyone in the room. It is common for tribunal panel members to consult from time to time. Her behaviour included helping the Chairman with particular page numbers etc. I saw no behaviour that indicated anything unusual. Indeed her facial expressions were no different when the respondents gave evidence to when the applicants did.
3. The Chairman was definitely not aggressive towards anyone. He was very perceptive and indeed with all witnesses asked good pertinent questions. The issue on the subject of trade unions was that the applicant simply had no evidence as to why Mr Roberts trade union activities actually may have influenced any decision. Indeed I recall him asking me not to ask questions which could be leading - but I would not have described this as aggressive.4. The second lay member did not behave particularly differently to the others. Indeed if I recall correctly he asked both parties questions, took notes and did all the things that panel members usually do.5. I find it hard to believe that the panel could be regarded as biased. The applicant's representative knew of the Chairman in advance of the hearing and I definitely felt that the two had often met in industrial tribunals. Indeed I felt at a disadvantage especially as the applicant's representative implied he knew of the Chairman."In these circumstances Mr Oldham submits that there is a clear conflict between the account given by the Appellant in the Affidavit, particularly of Miss Percival's alleged conduct during the hearing, and her account, supported by the other two Members of the Industrial Tribunal and the Respondent. He says that conflict must be resolved. The question is, how?

Bias

On the principle that not only must justice be done but be seen to be done, it is open to a party to complain to the E.A.T. that the Industrial Tribunal, in the conduct of the proceedings, had given the appearance of bias. Peter Simper & Co Ltd v Cooke [1986] IRLR 19 .The test for establishing apparent or potential bias was formulated by Lord Goff of Chieveley in R v Gough [1993] AC 646 , 670 in this way:
"... I prefer to state the test in terms of real danger rather than real likelihood, to ensure that the court is thinking in terms of possibility rather than the probability of bias. Accordingly, having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him."

Resolving the disputed versions

Mr Oldham submits that since the Appellant must establish the factual grounds which he says gives rise to an appearance of bias, where there is a conflict in the accounts given by the Appellant on the one hand and the Members of the Industrial Tribunal and/or the Respondent on the other, the E.A.T. must decide which factual version it accepts. It can do so either by accepting the Appellant's sworn Affidavit evidence, or by first inviting and then, if necessary, requiring the Industrial Tribunal Members to place their recollection on Affidavits. In the event of a continuing conflict, the E.A.T. should ultimately compel the Industrial Tribunal Members to attend to give evidence before the Appeal Tribunal, so that it may make findings of fact on which to base its decision in the appeal.

The practice elsewhere

Mr Oldham referred us to Halsbury's Laws, 4th Edition, Vol.17, paragraph 236 where it is said:
"A judge of the superior courts may refuse to give evidence as to judicial proceedings which have taken place before him, but inferior judges and court officers may be compelled to give such evidence."
Authority cited for both propositions includes the case of R v Harvey [1858] 8 Cox CC 99 , a case of perjury heard by Byles J on circuit at the Cornwall Winter Assizes in 1858. The allegation was that the accused had perjured himself when giving evidence in a County Court action brought against him as defendant. During the course of argument observations were made upon the County Court judge not having been called to prove his Notes of Evidence at the criminal trial. Byles J is reported as saying:
"Byles, J. said that the judges of the superior courts ought not, of course, to be called upon to produce their notes. If he were to be subpoenaed for such a purpose he should certainly refuse to appear. But the same objection was not applicable to the judges of the inferior courts. He saw no reason why they should not be called, and especially where, as in this case, the judge was willing to appear."
Thus, says Mr Oldham, Industrial Tribunal Chairmen and lay Members are judges of inferior courts. They are competent witnesses and as such are generally compellable as witnesses. See Phipson on Evidence, 1990 Edition, paragraph 9-14 .Other examples exist. A magistrates court clerk may be compelled by subpoena to produce a Note of Evidence in matrimonial proceedings if it is relevant and admissible in further proceedings. McKinley v McKinley [1960] 1 AER 476 . An arbitrator may be called as a witness in legal proceedings to enforce his award. He may be asked what occurred during the hearing before him, but not as to his reasoning in making his award. Buccleuch v The Metropolitan Board of Works [1872] LR 5 HL 418 . In Jones v Secretary of State for Wales & Others [1995] JPL 1135 a complaint was made by applicants for planning permission that the Inspector who heard their appeal against a refusal of planning permission had given the appearance of bias. The applicants appealed against his decision to the High Court. In the course of those proceedings the Inspector swore an Affidavit setting out his comments on the applicants' allegation of bias. In the High Court an application for leave to cross-examine, among others, the Inspector on his Affidavit, was refused by the Judge. On appeal, the Court of Appeal allowed the applicants' appeal against the Judge's order and directed a cross-examination on the Affidavits.Balcombe LJ expressed the view:
"Justice to the parties, as well as the Inspector himself, required that those disputed questions of fact, on which were based allegations of impropriety, should be tested in the normal way by cross-examination of the deponents. He [His Lordship] shared the view of Forbes & Laws JJ] "That it was usually undesirable that a person holding a quasi-judicial office should be exposed to cross-examination. Nevertheless if there was evidence before the court which, unless satisfactorily explained, could lead to an inference of improper behaviour on the part of the Inspector, then in his judgment the court should allow cross-examination on the affidavits."

The practice in this jurisdiction

Complaints of bias or other misconduct on the part of Industrial Tribunal Chairmen or lay Members are not infrequent in this Appeal Tribunal. However, our collective experience and researches reveal no case in which an Industrial Tribunal Chairman or lay Member has been invited, let alone compelled, to give evidence as to his conduct during the course of a tribunal hearing before the Appeal Tribunal. Mr Oldham has been unable to cite any such case to us. The recent Practice Direction to which we have referred, and its predecessors, make no provision for such a course.However, Mr Oldham relies upon an observation made by Judge Hague QC giving the judgment of this Appeal Tribunal in Greenaway Harrison Ltd v Wiles [1994] IRLR 380 . In that case the issue before the Industrial Tribunal was whether the employee had been constructively dismissed. It held that she had been. The employer appealed. The grounds of appeal contained an allegation of bias on the part of the Tribunal Chairman. Specifically, the complaint was that the Chairman was heard to remark to the lay Members sitting with her, after the close of proceedings, words to the effect "that will teach them not to settle when I tell them." In accordance with current practice an Affidavit was sworn by the solicitor acting for the employer. The Chairman provided her comments on that Affidavit, stating that she could not recall the conversation alleged, but it was highly unlikely it happened. She added that the lay Members denied that the alleged conversation took place. At paragraph 16-17 of the report Judge Hague said this:
"16. Mr Griffith-Jones [Counsel for the employer] criticised the fact that the chairman had asked the other members of the Tribunal for their comments and the production of the member's letter. He based his criticism on some comments of Balcombe J, at the end of the unreported decision of J S Winny & Co Ltd v Beaumont (EAT/701/82). In that case an allegation of bias against the chairman had been made, but the nature of the allegation is unclear, although it appears to have related to the chairman's reluctance to allow the appellant to call a witness. Balcombe J, after stating that the comments of the other members of the Tribunal and also the clerk had to be obtained and put in the Appeal Tribunal's bundle, said this:
`We have deliberately excluded from our consideration the contents of those letters because it appears to us that if we were to seek to place reliance upon them, it would inevitably follow that, if what they say is not accepted, there must be some right on the part of the appellant to challenge them, and that could lead to the wholly undesirable practice of persons who sit in a judicial capacity being asked to justify - in an extreme case, possibly in the witness box - what they had done. That would appear to us to be wholly undesirable. Therefore, without questioning at this stage the propriety of what was done in relation to the chairman's comments, we wish to say that we find it wholly undesirable that the members of a tribunal and the clerk or any other officer of a tribunal should be invited to comment where allegations of this nature are made.'We find difficulty in applying those dicta in a case such as the present. If the other members of a tribunal are not to be permitted to comment about allegations in which they are directly involved, that would appear to be very unfair both to the chairman and to the respondent to an appeal. We agree, of course, that it would be wholly undesirable for any members of the tribunal to have to give evidence. But where there is a serious conflict as to the material facts which are alleged to support a `bias' claim, that would appear to be unavoidable. In our view, it would be wrong, and plainly unfair to the respondent to this appeal, if the conflict could not be resolved and this Appeal Tribunal had to proceed on the basis of the contested allegations made by the appellant being correct.17. Fortunately, however, we consider that it is unnecessary for us to resolve this dilemma in the present case, because even on the assumption that the chairman did indeed make the remark alleged, in our judgment it is insufficient to justify the allegation of apparent bias."

Policy

It seems to us that there are here conflicting policy considerations. On the one hand, Mr Oldham submits that if the factual conflict raised in this appeal cannot be resolved in the usual way, by the Appeal Tribunal hearing the contestants and determining the factual issues, it will be unjust if the Appellant's account is rejected and the Industrial Tribunal's accepted. The Appellant has a basic right to have his case heard by an independent and impartial tribunal (he referred us to Article 6.1 of the European Convention on Human Rights ); it is an essential principle of natural justice. Without the opportunity to challenge the Industrial Tribunal Members' accounts, his appeal may fail, simply because there is a dispute as to the facts on which he seeks to rely in prosecuting his appeal.Against that is the universal acceptance that it would be a wholly undesirable prospect to require persons who sit in a judicial capacity to appear, ultimately in the witness box, to justify their conduct of proceedings which took place before them.

Conclusion

(1) The cases cited by Mr Oldham amount to no more than this. Inferior court judges (we include Industrial Tribunal Chairmen and Members in this expression) may be compelled to attend a subsequent judicial hearing for the purpose of producing their Notes of Evidence given in judicial proceedings before them. See Harvey and McKinley above. That particular evidential problem does not arise in this jurisdiction. The Appeal Tribunal gives directions as to the production of Chairman's Notes of Evidence in appropriate cases (see Practice Direction 1996 paragraph 7). Once a direction has been given Chairmen invariably comply with that direction.Secondly, where a person holding a quasi-judicial office, such as a Planning Inspector (see Jones above) swears an Affidavit in subsequent court proceedings, he is liable to be ordered to attend for cross-examination on his Affidavit in the same way as any deponent on Affidavit may be required to subject himself to cross-examination.It is not the practice in this Appeal Tribunal to require Members of Industrial Tribunals to comment on Affidavit.Put the other way, no authority has been cited to us where a person sitting in a judicial capacity has been compelled to attend before a higher court to justify his conduct in the discharge of his judicial functions.(2) As a matter of policy, we are faced with a choice. In our view, the undesirability of compelling Members of Industrial Tribunals to give evidence in the way suggested by Mr Oldham, outweighs the possible prejudice caused to the Appellant.(3) We do not propose to follow the obiter remarks of Judge Hague QC in Greenaway Harrison . We can conceive of no circumstances in which a Member of an Industrial Tribunal would be called to give evidence before this Appeal Tribunal in relation to his conduct in the course of the proceedings below.(4) In these circumstances, how should we, as a matter of practice, proceed to deal with the conflicting accounts in this case? We shall proceed on the basis that where there is a conflict we shall rely on the account given by the Members of the Tribunal, insofar as it conflicts with that put forward by the Appellant.(5) It follows that we reject Mr Oldham's application that we should ask the Tribunal Members to put their comments on Affidavit, or require them to attend to give evidence under Rule 27(1) of the E.A.T. Rules 1993 .

The merits of this appeal

In applying that approach to the uncontroversial matters raised in this case, we have to consider the following complaints:(1) The Chairman's manner towards the Appellant's representative, Mr Stokes, which at times appeared to be aggressive. In paragraph 3 of the Affidavit this complaint appears to focus on the stage at which the Appellant was giving evidence concerning his trade union activity. That part of the complaint was dismissed and the appeal against that finding has since been abandoned. The description "aggressive" is not accepted by the Tribunal Members.(2) The Chairman's observation, recorded in his Notes in this way:
"[Note: Stokes (the applicant's representative) is thrashing through the documents in the hope that something will turn up]"
We refer to the Chairman's observations in his letter dated 30 November 1995. Mr Stokes appeared before the Chairman frequently. Indeed, Mr Seehra, the Respondent's representative felt at a disadvantage because the Chairman and Mr Stokes appeared to know each other from past encounters.Pausing there, we cannot say that these two complaints, taken together or separately, are sufficient to cause us to conclude that these Tribunal proceedings are vitiated by an appearance of bias.(3) The Chairman stopped questioning of the Appellant's witness, Mr Waisteney, a former Sales Inspector with the Respondent, who had himself been dismissed in October 1993, at the point where he said in evidence:

"... there were underlying reasons for Ken Roberts being dismissed."

This suggestion had earlier been put to Mr Foster, the Branch Manager called by the Respondent, and denied by him in cross-examination.In considering this complaint, in the overall context of the evidence which the Tribunal had by then heard, we are satisfied that in stopping that line of questioning the Chairman did not step beyond the bounds of his wide discretion to control the proceedings and in particular limit evidence to the real issues in the case. The Industrial Tribunal is master of its own procedure, and this Appeal Tribunal should be slow to interfere, save in a plain and obvious case. That is not, in our judgment, this case.Accordingly, we have concluded that this appeal must be dismissed.