Robinson v Davies Middleton & Davies Ltd [1996] UKEAT 907_95_2401

EAT
Robinson v Davies Middleton & Davies Ltd
[1996] UKEAT 907_95_2401 · 1996-01-24

JUDGE SMITH Q.C. :

This is an application by Mr Michael Robertson for leave for his appeal to proceed to a full hearing against the decision of an Industrial Tribunal sitting at Cardiff on which held that the appellant had been fairly dismissed on the grounds of a redundancy, and accordingly dismissed his claim for compensation for unfair dismissal. The Industrial Tribunal also dismissed his claims for breach of contract and those under the Wages Act and in respect of holiday pay.The respondents are a substantial construction company, operating predominantly in South Wales.Before we go into the grounds of the appeal in detail, we remind ourselves of course that if the appellant can establish an arguable point of law on any particular ground of appeal, then he is entitled for the matter to proceed to a full hearing on any such arguable points. He only has to establish an arguable point of appeal.Before going to the decision of the Industrial Tribunal in the detail that is necessary for us to do, we should say this: in consequence of the way in which the application has been developed before us by Mr Leathley who appears on behalf of the appellant, Mr Michael Robertson, and who appeared in that capacity in the Industrial Tribunal, we have had to consider not only what we may categorise as a typical or usual grounds upon which an attempt has been made to impugn the decision of the Industrial Tribunal, that is to say the kind of grounds we are familiar with dealing with and which come up very often, namely, those set out in paragraphs 1 and 2 of the Notice of Appeal, but also, as happens from time to time, we have also had to consider in reaching our conclusion on this application, the somewhat less usual grounds of appeal, which are set out in paragraphs 3-5 of the Notice of Appeal, all of those grounds really being based upon the assertion that the Chairman of this Industrial Tribunal consciously or really unconsciously as it is put, came to be actuated unconsciously and unwittingly by bias against the applicant's representative Mr David Leathley, and in consequence, so it is submitted to us, against the applicant in such a way that it is submitted that it is at least arguable that that bias vitiated the hearing. This of course is a very serious allegation to make, but one which if it is made, must of course be judged on its merits like any other ground of appeal. It is however also a serious matter if it transpires that there is no real foundation for such an allegation, and if it turns out that on a true construction of the matter such difficulties that there were at this hearing (and there is no doubt that there were some difficulties) were brought about by the unfortunate is conduct of the applicant's representative during the course of the hearing. One reason why it is so unfortunate is because it means that we as the Employment Appeal Tribunal, in addition to considering very carefully the particular grounds of appeal, and particularly the allegation of bias, have to look also with particular care to see whether such unfortunate behaviour has worked any possible injustice to the applicant himself.It is in the light of these introductory remarks that we will have to consider the submissions which have been made to us by Mr Leathley. We should record simply, so that it is on the record, that our understanding is, as Mr Leathley perfectly properly and courteously told us today, is that he is a barrister and that he is in employment with the CPS. We may say that we are unanimously of the view that we have not found Mr Leathley's submissions at all easy to follow, even in relation to the usual grounds of appeal. We will reserve our comments upon what we have described as the somewhat unusual grounds of appeal until later on in this judgment.Before we turn directly to deal with the grounds of appeal, we must refer at once to the extended reasons of the Industrial Tribunal. In our judgment, on their face, these are clearly set out, and on their face we repeat, give every indication of a careful, balanced and well reasoned decision. The resumé of the evidence given on both sides before the Industrial Tribunal and the arguments addressed in relation to the evidence are set out in paragraphs 1-17 of the decision. In our judgment, it is unnecessary for us to rehearse these in any detailed way since they are self-explanatory, and of course reference can be made to them should it be necessary for the detail. As appears from these paragraphs it is apparent that the applicant was initially employed in 1980 as a site agent, and was appointed a contracts manager in 1989 taking his place as one of four contract managers. As such he was responsible to a Mr J M Davies the production director, who in turn was responsible to Mr Offord, the managing director.There was a dispute, as appears from the findings of the Industrial Tribunal, as to whether the appellant's position was or was not properly described as regional contracts manager West Wales. Ultimately and correctly, in our judgment, the Industrial Tribunal concluded that this was an academic dispute since it was apparent to them (and we should make clear at this stage that this was a unanimous decision of the Industrial Tribunal) that it was appropriate to describe the West Wales Region as the applicant's sphere of operations, although on occasions he dealt with contracts as far away from West Wales as Oxford and Penzance. The Industrial Tribunal describe in detail the severe downturn in the respondents financial position and concluded that as a result of this a redundancy situation existed with the consequence that eventually the applicant was made redundant. It was common ground before the Industrial Tribunal that the applicant was notified of the decision to dismiss him on the grounds of redundancy by the respondents' letter to him of 5th August 1994. There is no appeal before us against the finding of fact, disputed before the Industrial Tribunal, that a redundancy situation existed. But one of the conventional grounds of appeal, ground 2, as we understand it, is that in some way or another, the Industrial Tribunal reached a perverse finding of fact on the issue as to whether or not the applicant had been:(a) sufficiently warned of impending redundancy; and(b) adequately consulted in relation thereto.In our judgment, there was plainly a substantial conflict of evidence on this important issue, between the evidence of Mr Davies and Mr Offord on the one hand, and that of the applicant on the other. It was the respondents' case that the applicant had indeed been warned from about the end of 1993 of the risk that he may be made redundant, and that by 31st May 1994 he was being specifically consulted about it by Mr Davies, and being asked to consider moving to the position of a planning engineer in Cardiff. A proposal which, according to the findings of the Industrial Tribunal, as we interpret them, the applicant at first turned down and then a little later on, to which he attached wholly unacceptable conditions. On the other hand it was the applicant's evidence that he had no warning or consultation whatsoever, and that the decision to make him redundant came "like a bolt out of the blue".In our judgment, giving consideration to this second ground of appeal, and despite the criticisms made of this part of the decision by Mr Leathley, in our judgment it is quite apparent that the Industrial Tribunal resolved this issue by their findings of fact in favour of the respondents as they were fully entitled to do. This, in our judgment, is quite clear from the findings of the Industrial Tribunal in paragraph 20 and 21 of their decision. The fact that the Industrial Tribunal considered that the applicant must have realised without being told in terms that the "cold hand of redundancy" (as they put it) might well reach out and touch him, in our judgment in no ways detracts from the Industrial Tribunal's clear finding of fact that he was in fact warned and consulted. Complaint is made by Mr Leathley that the respondents on this point adopted conflicting positions from time to time, four different position as he sought to demonstrate to us, and that fact that there was evidence before the Industrial Tribunal that Mr Offord had said that the post of engineer in Cardiff would actually have turned out not to have been given to board approval, in our judgment cannot detract in any way from the finding of fact on this issue which the Industrial Tribunal came to. In our judgment, there is no arguable ground of appeal on this point for the reasons that we have stated. It should be borne in mind by those who have to listen to this judgment or read this judgment, that all the time we have in the back of our minds the fact that it is of course the applicant's case that this whole approach of the Industrial Tribunal was vitiated by bias. But we have to take the grounds of appeal one by one. We have not overlooked the fact that we will have to deal with the allegation of bias in due course.Next we consider the ground of appeal which is ground 1 in the Notice of Appeal. This ground appears to suggest in some way or another, which has not been completely clear to us, that the Industrial Tribunal failed to take into account all material factors in order to decide whether the respondents' decision was a reasonable one within Section 57(3). Of course this overlaps to a considerable extent with the first ground relating to consultation. We regret that we must record that no light has really been thrown upon what the real complaint is in relation to this particular ground of appeal having heard Mr Leathley's submissions in relation to it. His submissions indeed, with respect, only serve to confuse the matter in our judgment. His written submissions in particular on this point wander from one point to another in an inconsequential way. We have found them unhelpful with this ground of appeal. Accordingly, we have looked with particular care for ourselves to see whether the Industrial Tribunal on the face of it, and subject to the issue of bias, approached the question of Section 57(3) correctly. It is of course of crucial importance that the Industrial Tribunal should consider Section 57(3) in relation to a redundancy, to ascertain whether the redundancy was handled reasonable and properly in accordance with Section 57(3) and the well-known guidelines in relation to such a consideration. We note that the Industrial Tribunal correctly stated the law in paragraph 18 of its decision. In our judgment on the face of their decision they proceeded with scrupulous care to consider all the factors which were relevant in order to determine whether the dismissal was fair in all the circumstances. Thus they considered the matter of notice or warning of redundancy. They considered the matter of consultation in relation to it, which we have already dealt with earlier in this judgment. They considered whether the selection was fair. They considered whether reasonable alternative employment was offered to the applicant. We are wholly satisfied looking at their decision that there is no arguable ground of appeal under this particular ground, namely Ground 1 in the Notice of Appeal.We turn next to consider the unusual grounds of appeal. We do not intend to indicate by that adjective `unusual' that they are unprecedented, of course they are not. From time to time these grounds are put forward and must be dealt with.We find that we can deal shortly with the first alleged Ground in paragraph 3 of the Notice of Appeal. It is alleged there in terms that the Industrial Tribunal wrongly excluded evidence of certain documents which it is alleged by Mr Leathley implicitly at any rate from our understanding of his submissions, might have assisted the applicant's case. In particular Mr Leathley refers to questionnaires which he prepared and which he has shown us today, which were a series of alternative propositions which were put to the respondent's witnesses who had been attendant at certain meetings that had taken place in order to try and pin them down as to whether they were supporting the respondents case that the applicant had been consulted in relation to his redundancy. What happened there was that the questionnaires were not completed because, on advice from the firm of solicitors acting for the respondents, the addressees of the questionnaires were advised that they were under no obligation to complete the questionnaires. That is the first category of documents. The second category of documents are the minutes of monthly management meetings as we understood from the submissions. Now with regard to those, in our judgment this ground of appeal does not get off the ground as they were in fact admitted before the Industrial Tribunal. Again, we enter the caveat that this is all subject to our dealing with the allegation of bias in due course. With regard to the questionnaires we find that we can deal with the matter quite shortly. Regrettably in our judgment, but inevitably when allegations such as these are raised, the Chairman, Mr Bird, had to be asked to deal with this allegation in addition the allegation of bias. He has done so in our judgment, with clarity and cogency at paragraph 3 of his letter of 25th August 1995 to the Registrar of this tribunal in response to the Registrar's letter and the affidavit which the applicant had sworn on 11th July 1995 particularly paragraphs 33 onwards. In our judgment, the fact of the matter is that the Chairman was entirely right to rule that the addressees of Mr Leathley's questionnaires were under absolutely no obligation whatsoever to complete them, and that they were accordingly inadmissible, since they were in no way probative of the applicant's case before the Industrial Tribunal. The unanswered blank questionnaires were of no evidential value whatsoever, they were not probative of the applicant's case since they had not been filled in at all let alone in any manner which could be said to have helped the applicant's case. The usual avenues were of course open to the applicant and Mr Leathley to obtain further and better particulars, to obtain specific discovery if appropriate, and, in addition, to serve witness summonses. In addition, in our judgment, the Chairman was correct in his ruling, as we understand it to have been, that, since there was obligation to answer these questionnaires, as the Chairman correctly ruled, they were wholly irrelevant to any issue of credibility. Accordingly we must reject this ground of appeal as being wholly misconceived.We turn finally to consider, as we must, the allegation of bias. We have had to remind ourselves carefully in relation to this matter of the decision of Reg v Gough [1993] AC 646 and the judgment of Lord Gough in that particular decision, which is the leading decision on bias. In particular the test stated by Lord Goff at page 670 in these terms:
"... I prefer to state test in terms of real danger rather than real likelihood, to ensure that the court is thinking in terms of possibility rather 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, [ here the Chairman ] 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;"
It is perfectly clear as well that one should look at the position through the eyes of the hypothetical intelligent disinterested observer seeing everything that is going on in a particular court or tribunal as in this case, and the reaction of such an independent observer in order to see if there is any possibility that such an independent observer might say to himself "it is possible here, is it not, that there is some bias, some unconscious bias of some kind or another operating here." That is the correct way of looking at the matter as we understand the law to be. We all reminded ourselves again that it only has to be a seriously arguable point that it is possible that the Chairman may have unconsciously displayed some bias which the applicant has to demonstrate to us at this stage. So that is the law that we have reminded ourselves of.Secondly, we should simply note, so that it is quite clear, that we have of course considered the Notice of Appeal and paragraphs 4 and 5 in particular, the arguments of Mr Leathley to us, the affidavit sworn by the applicant in July 1995 to which I have already referred, the letter from the Chairman dated 25th August 1995 and the recent letters placed before us this morning by Mr Leathley, namely, his letter of 17th January 1996 and the regrettable exchange of correspondence that took place between himself and respondents' solicitors in about May 1995. We have considered all those matters.Before we say anything further about this matter, we do feel it is necessary to remind ourselves of what is rather elementary but nevertheless it is perhaps important in the context of this application for leave to appeal that it should be stated when considering allegations of bias in relation to the Chairman of an Industrial Tribunal namely that in our judgment it is very important to bear in mind, without in any way overstating the position, that any Chairman must act as a Chairman of a legal hearing. He must keep the parties and their advisers to the point. He must stop them from being longwinded or discursive or repetitious. He must make sure that they cross-examine fairly and not discourteously or in a heckling or theatrical manner. Those are all trite observations and they are not meant to cover the full ground of the onerous responsibilities of a Chairman of an Industrial Tribunal or any judge. In so discharging that responsibility or those responsibilities, we have reminded ourselves that a Chairman may have to rebuke a parties representative, initially, no doubt courteously, then perhaps firmly, should the message not have got across, and ultimately, we are speaking entirely hypothetically, if the lesson still has not been learnt, severely. We simply note that it would be most unfortunate if such responsible conduct on the part of a Chairman could ever be used to support an allegation of bias. Of course it must never be allowed so to do. Bias is partiality or partisanship, unconscious or conscious in favour of one party over another or against one party. It is the possibility of this which can be the subject of an appeal, not criticism of a Chairman for doing his difficult duty fairly and responsibly in acting as a judge of an Industrial Tribunal.It is in the light of those observations that we turn to consider this ground of appeal in a little more detail.In our judgment, and despite what Mr Leathley has submitted to us, it is clear that this allegation as originally ventilated in paragraphs 4 and 5 of the Notice of Appeal, it appeared to us to have stemmed from the decision of Miss Watkins, the legal representative of the respondents, to bring to the attention of the Chairman Mr Leathley's stated intention to her in the form of some kind of a stage whisper, that he was minded to pursue an appeal against the Chairman's ruling in relation to the questionnaires.In our unanimous judgment, it is important that we should record our unanimous view that Miss Watkins acted perfectly properly and responsibly in so doing.Now that has led to this ground of appeal being put forward and when pressed about the matter in argument, as we felt obliged to do with Mr Leathley, it came down to a number of specific matters upon which he relied. In particular, he relied upon the exchanges that took place apparently between himself and the Chairman, relating to the Chairman's decision to disallow the questionnaires in evidence. There is no doubt that there was a debate between the Chairman and Mr Leathley as to what would be the position if Mr Leathley sought to question the Chairman as to whether he would agree that there had been a hearing of this tribunal going on in this particular case for two days. The Chairman was putting the point across that if he were questioned in that way, he would be entitled to decline to answer. That is one example of the kind of matter that is being relied upon here as giving rise to bias.At another stage, it is suggested, and it may well be right, that some kind of observation was made by the Chairman along the lines of "less of your Old Bailey tricks" by way of a rebuke to the way in which at that particular point in time Mr Leathley was conducting the matter, no doubt during the cross-examination of some of the respondents' witnesses. It is said that that gives rise to this ground of bias. Then there is a complaint made in relation to the way in which Mr Leathley was cross-examining Mr Offord in the witness box and the rebuke that was administered to him in relation to that matter along the lines "don't treat him like a child" or something of that kind. There are a number of other items of a similar nature.In considering them we have also taken account of what the Chairman had to say about them. It is important, in our judgment, that we should at least set out something of what the Chairman had to say and we begin at paragraph 3 in the Chairman's account of the matter. It reads like this, and it is only an extract and of course can be put in context, and should be put in context and we have considered it in context:
"He would invite the witness [ and he is Mr Leathley ] to look at a page in the bundle; to identify it as the minutes of a management meeting; and then to count the number of people attending. Each time the witness gave the number as 6. Mr Leathley would repeat it adding "Chairman and members of tribunal please write 6." Eventually Mr Offord's patience snapped. He turned to the bench and said "Do I have to put up with this? He is treating me like a child." I told Mr Leathley - kindly as I thought - "I have some sympathy with him. You are treating him as if he were a child in kindergarten being taught to count up to 6. Do you really need to be so patronising? You are treating the tribunal in a similar way. A moment ago you told us that we could go to lunch once you had asked your next question. As it turns out you are quite right. We are going to lunch, but not because you have decided. It is we who will regulate the procedure. Do you please think you could be less theatrical?" At that point Mr Leathley apologised profusely."
and so it goes on in that vein, and it is important that should be on the record. A little lower down:
"He [ again Mr Leathley ] was equally theatrical the next day when cross-examining Mr John Davies. After lauding Mr Davies, as Mr Robinsons' father figure, he then dramatically declaimed that he was a moral coward. I asked Mr Leathley whether this was really necessary. The issue in question was whether Mr Davies had warned or consulted Mr Robinson. We though he clearly had but no amount of abuse was likely to elicit useful facts."
"4. I am astonished by the suggestion that I am supposed to have giving [sic] Mr Leathley too hard a time. I confess he caused me considerable concern. His performance led to merriment among members of the public. [ And here again I interpose to say that this is specific matter of which complaint is made by Mr Leathley as to giving rise to some kind of bias ] I can tell you that my colleagues were equally concerned. ..."
and so it goes on. It is made quite clear by the Chairman in the course of his statement that there was absolutely no question of any bias whatsoever. That is the whole burden of the Chairman's response, but that he had to, in the course of his duties as Chairman of the Industrial Tribunal, keep a grip on the matter and in particular, deal with the conduct of Mr Leathley.In our judgment, having considered the matter very carefully, we are quite satisfied that none of the matters raised either by Mr Leathley in argument or by Mr Robinson in his affidavit, which we have also considered with a greatest care, could possibly or did actually give rise to any possibility of influence by the Chairman unwittingly or otherwise against the applicant's case. We are wholly satisfied that nothing of this kind occurred. We are satisfied regrettably that the behaviour of Mr Leathley has been correctly and accurately described by the Chairman and that it most unfortunately strayed into eccentricity and theatricality and it was as a result of this that the Chairman had to take such limited steps as he did to control such behaviour on the part of Mr Leathley. We are satisfied that there is no possible ground of appeal here in relation to the argument addressed to us that there is a possibility of bias. There is in our judgment absolutely no arguable point in that regard.We have had to look very anxiously to make sure that such behaviour on the part of Mr Leathley caused any kind of prejudice to his client, the applicant. We are quite satisfied that due to the patience and good sense and professionalism of the Chairman and the lay members who sat with him, no such injustice occurred at all. Accordingly, we have no hesitation in dismissing this ground of appeal.We must mention finally one matter that has given rise to some difficulty and that is the extent to which we should look at the responses that were received from the lay members. Those responses were properly sought in our judgment by the Chairman, as we understand it, and we understand that it is not uncommon when this kind of allegation is raised for the lay members to be invited to make their comments on the matter. However, it is apparent from the decision of J S Winny & Co Ltd v Beaumond [Unreported decision of the Employment Appeal Tribunal in 1983] that the practice of obtaining comments of the lay members was deprecated to an extent at any rate in the final paragraph of that judgment. We do not find it necessary at the present time to deal with this matter in any detail, suffice it to say that the approach we have taken is the following. We have certainly noted that the lay members formed the view that the applicant was an honest and courteous person, and we have taken that into account in everything we have considered in this judgment. We have also taken into account, as we feel it necessary so to do, the fact that Mr Jamieson at any rate did find the conduct of Mr Leathley disrespectful to the Industrial Tribunal. We have had to look at that in order to see whether there is any possibility at all that this lay member because of that view he formed of the conduct of Mr Leathley may have unconsciously allowed himself in some way to be biased against the applicant's case, we emphasise the word unconsciously. It is only for those two reasons that we have looked at those statements, and suffice it to say that we are wholly satisfied looking at Mr Jamieson's statement and looking at the whole picture that it is absolutely clear that Mr Jamieson as one would expect was quite able and did in fact put out of his mind completely the conduct of the applicant's representative when he came to make his decision or play his part in the unanimous decision which was reached by this Industrial Tribunal.Accordingly for all those reasons which we have felt obliged to state in some little detail this application is dismissed.