R v A [1997] UKEAT 51_96_2111

EAT
R v A
[1997] UKEAT 51_96_2111 · 1997-10-14
MR JUSTICE MAURICE KAY : This is an appeal against the decision of an Industrial Tribunal sitting at Leicester, the date upon which the decision was promulgated being 8th December 1995. The proceedings were titled A -v- R. The unanimous decision of the Industrial Tribunal was that A was subjected to sex discrimination by R. A had been employed as a receptionist and bar maid in a Public House of which R was the landlord. She complained of a series of acts amounting to sexual harassment. R seeks to appeal against the decision on a single ground. It is submitted on his behalf that this Appeal Tribunal should overturn the decision of the Industrial Tribunal on the ground of bias. It is not an allegation of bias of the type which is made all too often. Rather it is one of unconscious bias arising out of the particular circumstances of this case. We must therefore relate a little of the history.It was abundantly apparent at the pre-hearing stage that A's allegations were to be denied by R. At one stage it was the intention of R to call a particular customer from the Public House to give evidence to the Industrial Tribunal. However, on 13th October 1995 R's solicitor, Mr Marsh, became aware that A's representative from the Citizens Advice Bureau had in his possession a tape recording of a conversation between the intended witness and A's boyfriend. Mr Marsh was permitted to listen to the tape recording. There was also a transcript of it. It was a conversation which included passages which were potentially highly damaging to R and which also made pejorative comments about his solicitor. Generally speaking the material concerning R was capable of belief but it is accepted by both sides that the most relevant statements were untrue. When he heard the tape and saw the transcript Mr Marsh was concerned about their evidential status. He immediately wrote to Mr Hicks at the Citizens Advice Bureau contending that the tape and the transcript were inadmissible. On 18th October Mr March wrote to the Regional Secretary of the Industrial Tribunals in the following terms:
"We maintain our objections to the tape recording and transcripts being adduced in evidence. In this regard, we feel that directions will clearly be necessary. If we are right, then it would seem that the contents of the transcripts will have to be read by the Chairman/Tribunal during the course of the arguments to be raised in relation to it. Our immediate concern is that the preliminary issues should not be dealt with by the Tribunal convened to hear the substantiate [ sic ] application. If our objections are upheld (whether in whole or in part) the Tribunal would nonetheless be seized of the material as a result of having read the transcript and having heard the arguments in relation to it. Our proposal would be that there should be a directions hearing before a Chairman independent of the Tribunal which would actually sit on the hearing of the full application."
By a letter dated 19th October the Tribunal replied that a Chairman had directed that the matters should be dealt with by "the Chairman in front of whom the case is listed on 24 and 25 October". In other words, it was directed that the admissibility of the tape and transcript would be considered by the Chairman alone at the outset of the substantive hearing. This prompted Mr Marsh to write again to the Industrial Tribunal on 20th October in these terms:
"We wonder if it would be appropriate to request that no copies of the transcript of the tape recording should be included in any papers which may be sent or given to the lay members of the Tribunal."
That letter was not copied to Mr Hicks.On 23rd October Mr Hicks delivered three bundles to the office of the tribunal. The bundles included the transcript. Indeed, it seems that the transcript remained in the bundles of all three members of the tribunal at all material times thereafter.On 24th October the Chairman and lay members of the tribunal were given and began to read the bundles about 30 minutes before the hearing was due to commence. The Chairman was then told by a member of the Tribunal staff that there was to be a preliminary issue as to the admissibility of the tape and transcript. He accordingly told the lay members that if they had by that time read any part of the transcript they should read no more of it unless and until he gave them direction following the preliminary hearing. There is some disagreement about precisely what was said in the course of the preliminary hearing. What is clear is that the Chairman made it clear that the tape recording and transcript should not be referred to in the course of the hearing or be read further unless he should later rule to the contrary. After a brief adjournment both advocates (Mr Marsh and Mr Hicks) indicated that they would not be calling the parties to the tape recorded conversation to give evidence. The substantive hearing then proceeded and was adjourned part heard until the next day.On the morning of 25th October R asked Mr Marsh whether the transcript had been removed from the bundles. Mr Marsh requested a further preliminary hearing and one took place, the parties present being the Chairman, Mr Marsh and Mr Hicks. Mr Marsh's recollection of what then transpired is set out in the following passage of one of his affidavits:
"I advised the Chairman that the (respondent) was concerned that the lay members may have read the transcripts. The Chairman stated that he had directed the lay members not to read the transcript but he specifically commented "I am unable to give a guarantee that they have not". The Chairman did not indicate that the two lay members had read some of the transcript before he had directed them to the contrary after he became aware, the day before, that there was to be a preliminary hearing on the matter of the tape recording and the transcript."
The Chairman again ruled that no reference to the alleged conversation between the two men or to the transcript should be made without further direction. Indeed, throughout the substantive hearing no reference was made to the conversation, the tape recording or the transcript. At the end of the second day the hearing was completed and the three members of the tribunal retired to consider their decision. A little later they returned for the Chairman to say that one member was as yet undecided and had an appointment elsewhere. In all the circumstances further consideration was adjourned and the decision reserved.It seems that the members of the tribunal met together on 14th November and came to their unanimous decision which was subsequently promulgated on 8th December. On 18th December 1995 Mr Marsh applied for a review, the application asserting that:
"An impartial third party, with knowledge of all the facts, would be likely to conclude that the lay members at least would be likely to have been influenced against the respondent by virtue of having read the transcript. Furthermore it is the perception of the respondent that the lay members at least were so influenced against him, having read the transcript."
On 12th January 1996 Notice of Appeal to the Employment Appeal Tribunal was given. On 30th January 1996 there was a review hearing in the Industrial Tribunal, the decision on the review being promulgated on 5th March 1996.It is necessary for us to set out in detail the relevant passage of the decision on the application for review. It contains the account of the Industrial Tribunal as to what had transpired. The relevant parts are as follows:
"3. The Tribunal has considered the application for review and agrees with Mr Marsh that it was unfortunate that the applicant's bundle of documents contained a copy of this disputed document and that it was copied to the Chairman and members even though Mr Marsh had asked for it to be excluded until there had been a ruling by a Chairman on its admissibility, preferably by a Chairman who was not to be the Chairman of the Tribunal hearing the subsequent complaint.
4. In the event another Chairman had ruled before the hearing that the matter of admissibility should be decided by the Chairman who was to hear the substantial case but sitting alone before the main hearing began. However as it happened the Chairman of the Tribunal and the two members who had not seen any of the papers until about half an hour before the hearing was due to begin did read some of the transcript which was included in the trial papers although not fully in view of the limited time. The Chairman was then told there was to be a preliminary hearing on the matter of the tape recording and the alleged transcript and in the circumstances he then told the members that if they had by that time read any part of this document they should read no more unless and until he gave them directions following his preliminary discussion with the parties representatives and having considered their submissions.5. The Chairman is satisfied that the members followed his instructions and they both agree that that was the position. At the end of the preliminary hearing which he took by himself alone the Chairman's decision was that the recording and its contents should not be referred to in the course of the hearing or be read further unless he should later rule to the contrary. In fact the Chairman never did allow any reference to the contents of the transcript in the course of the trial even though the matter was again raised before him alone at a later stage which was before the beginning of the evidence on the second day of the hearing when he again ruled that no reference to the alleged discussion between the two men and the transcript of it could be allowed unless he changed that ruling for the purpose of cross-examination should either of the two participants in the alleged conversation be called to give evidence. This never did happen because neither of those two person were called to give evidence.6. In these circumstances should there be a review of the Tribunal's decision? This has been carefully considered by the Chairman and members. In the case of trial by jury of an alleged criminal offence the jury retires and returns its verdict and the jury cannot be asked why they have reached their verdict nor about their reasoning. In the case of a jury trial if it turns out that there was evidence before them which should not have been admitted in evidence and which was or clearly could be prejudicial to a fair trial it is often appropriate to order a new trial with a different jury. With an Industrial Tribunal however the position is different. The Tribunal itself has to set out the reasons for their decision, normally in full and after including reference to any matter which was disputed between them or a mention of any matters which there has been a failure to agree between the members of the Tribunal.7. In the circumstances and having discussed and agreed this with the members today we have decided to inform the parties of these facts:(a) that after the Chairman told the members before the start of the preliminary hearing on first day that they should not read or read further the alleged transcript neither the Chairman nor the members read it or part of it.(b) that the contents of the transcript were never discussed or referred to by the Chairman or either of the members in the course of reaching their decision at the end of the two days hearing.(c) that the Tribunal's decision as to the allegations of sexual harassment were reached entirely on the basis that all the three members considered that the applicant was telling the truth and that the respondent was not and these decisions were unconnected with any allegation or other statement contained in the alleged transcript. In fact it was taken no account of at all in the decision of the Tribunal.8. For these reasons therefore we have decided that it would not be appropriate to have this case considered by a different Tribunal and in consequence this application for review and for a new tribunal is unanimously rejected."In making his submissions on behalf of R Mr Harbottle seeks to establish two points. First , he submits that there was a real danger that the members of the Industrial Tribunal were biased because they had read a transcript of the taped conversation which contained serious and untrue allegations against R and his solicitor. Secondly , he submits that there was a procedural irregularity in the hearing in that R and his solicitor were not told unequivocally that the members of the tribunal had seen the transcript and, in these circumstances, R and his solicitor were unable to rebut the untrue allegations at the hearing. At all times Mr Harbottle has been at pains to make clear that he does not suggest that the members of the Industrial Tribunal were actually or consciously biased.

The Law

The law on the test to be applied to allegations of bias in a criminal trial was considered by the House of Lords in Regina v Gough [1993] AC 646 . Lord Goff of Chieveley, having stated that it is desirable that the same test be applicable in all cases of apparent bias, whether concerned with justices or members of other inferior tribunals, or with jurors, or with arbitrators, stated (at page 670):
"I think it unnecessary, in formulating the appropriate test, to require that the court should look at the matter through the eyes of a reasonable man, because the court in cases such as these personifies the reasonable man; and in any event the court has first to ascertain the relevant circumstances from the available evidence, knowledge of which would not necessarily be available to an observer in court at the relevant time. Finally, for the avoidance of doubt, 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 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; though in a case concerned with bias on the part of a justices' clerk, the court should go on to consider whether the clerk has been invited to give the justices advice and, if so, whether it should infer that there was a real danger of the clerk's bias having infected the views of the justices adversely to the applicant."
Lords Ackner, Mustill and Slynn of Hadley agreed and Lord Woolf added (at page 671):
"I agree that the correct test to adopt in deciding whether a decision should be set aside on the grounds of alleged bias is that given by Lord Goff, namely. whether there is a real danger of injustice having occurred as a result of the alleged bias."
Lord Woolf later added (page 672):
"Whether it is a judge, a member of the jury, justices or their clerk, who is alleged to be biased, the courts do not regard it as being desirable or useful to enquire into the individual's state of mind. It is not desirable because of the confidential nature of the judicial decision making, process. It is not useful because the courts have long recognised that bias operates in such an insidious manner that the person alleged to be biased may be quite unconscious of its effect."
In Greenaway Harrison Ltd v Wiles [1994] IRLR 380 it was held by the Employment Appeal Tribunal that the Gough test applies to Industrial Tribunals. There can be no doubt about that. However, when the Employment Appeal Tribunal is considering an allegation of bias in an Industrial Tribunal and applying the Gough test, it will not lose sight of the fact that the lay members of an Industrial Tribunal are not randomly selected from the electoral role but are specifically selected on the basis of their experience to perform a judicial task. What is more, the legislation which governs Industrial Tribunals does not in its terms exclude them from being parties to decisions on admissibility or from remaining as part of the tribunal in circumstances when they have been party to a decision that some evidence should not be admitted. It is instructive to recall the words of Talbot J in giving the judgment of the Employment Appeal Tribunal in Rosedale Mouldings v Sibley [1980] ICR 816 , 822:
"The industrial tribunal, though they are, in effect, the judges and jury, are presided over by an experienced, legally qualified chairman. The members are experienced in this work. We quite unable to understand why they should allow their knowledge of a document which might effect some of the cases before them and not others, to prejudice those cases which are not effected by it."
There is another matter which is relevant when the Employment Appeal Tribunal has to consider an allegation of bias. Whereas, in other jurisdictions, it is often inappropriate for the decision maker to be asked to comment on the allegation, here it is otherwise. It is well known that for many years the Employment Appeal Tribunal has been faced with appeals containing numerous allegations of bias, almost always unfounded. Because of this the Practice Direction which operates in the Employment Appeal Tribunal not only requires an appellant to file affidavit evidence about his allegations; it also provides for the Chairman of the Industrial Tribunal to be notified and provided with copies of the appellant's affidavit evidence and other relevant documents "so that he has and, if appropriate, the lay members of the industrial tribunal have, an opportunity to comment on them. Those comments will be supplied by the EAT to the parties." Needless to say, in "bias" appeals, the Employment Appeal Tribunal takes account of any comments received from the Industrial Tribunal concerning the allegation. The consequence of all this is that, although we faithfully apply the Gough test, the actual application of the test to the material before us will often take account of factors which will normally be absent when bias is raised in other jurisdictions.

The Present Case

We now turn to consider whether there was a real danger - in terms of possibility rather than probability - of bias in this case. So far as the history of the matter is concerned, we accept (as Mr Harbottle accepts) the accuracy of the account set out in the review decision of the Industrial Tribunal. In other respects, there are some matters upon which the recollection of Mr Marsh differs from that of Mr Hicks. For the sake of argument, and without for one moment wishing to cast any aspersions on Mr Hicks who has conscientiously sought to assist at every stage, we shall assume that the recollection of Mr Marsh is accurate. It is clear that the lay members of the Industrial Tribunal did read the transcript in part. We also accept that it contained allegations of a most serious nature and that they were untrue. We observe that, although the full Industrial Tribunal of Chairman and lay members would have been legally competent to consider the issue of admissibility and to continue with the case following a ruling of inadmissibility, the fact is that steps were taken in this case to confine the issue to the Chairman. When he decided that the material was inadmissible, he sought to ensure that the material was not referred to during the hearing or in the discussions with his lay members. To this extent he was successful. Having rightly conceded that this is not a case of actual or conscious bias, Mr Harbottle has sought with great skill and energy to persuade us that, in all the circumstances, and especially in the light of the nature of the material in question, there is a real danger that the lay members were unconsciously biased in the sense that, however hard they tried, they would not be able to keep the contents of the transcript of out their minds when hearing and considering the evidence in the case.Having given the matter very careful consideration, we are unanimously of the view that that submission cannot be sustained. In reaching this decision we have attached some significance to the material set out in paragraphs 7(a),(b) and (c) of the review decision which we have set out earlier in this judgment. Those matters are not, of course, conclusive. Our investigation of the possibility of unconscious bias must go deeper than that. We have also considered the terms of the original substantive decision and the very careful way in which the Industrial Tribunal considered each of the allegations of sexual harassment in detail, with specific regard to the evidence which was relevant to each allegation. Throughout the decision they have made it crystal clear as to what they have accepted, what they have rejected, and the reasons which led them to such acceptance and rejection. Throughout, the reasoning is cogent. We have measured the risk of bias, taking into account all the matters upon which Mr Harbottle has relied in his oral submissions and had set out in his helpful skeleton argument. In all the circumstances, we have reached the conclusion that the possibility of bias having effected the decision of the Industrial Tribunal is extremely remote. It certainly falls well short of the "real danger of bias" referred to in Gough , even when concentrating on possibility rather than probability. It follows that this ground of appeal is fails.We finally turn to the second ground of appeal, namely the contention that there was a procedural irregularity in the omission to inform R and his solicitor that the lay members had seen at least part of the transcript. It is submitted that if that had been made known as an unequivocal fact, Mr Marsh would have conducted R's case differently and would have taken steps, in cross-examination and by the calling of evidence, to prove the untruth of the allegations. We are bound to say that it seems to us very unlikely that any experienced advocate would have chosen to conduct his case in such a way when he knew that the transcript had been ruled inadmissible. Moreover, when the Chairman stated that he could not guarantee that the lay members had not read the transcript, it is most unlikely that he was being disingenuous. He knew that they had had an opportunity and he was saying as much as it was safe for him to say in the circumstances. In our judgment there is nothing in this second ground of appeal and it, too, must fail.It follows that the R's appeal is dismissed.