London Underground Ltd v Ayanbadejo [1999] UKEAT 1160_97_1802

EAT
London Underground Ltd v Ayanbadejo
[1999] UKEAT 1160_97_1802 · 1993-11-22
MR JUSTICE MORISON (PRESIDENT) : This is an appeal by London Underground Limited, who are the Respondent employers, to a claim of sex discrimination and unlawful victimisation on the grounds of race, made by the Applicant, Ms Ayanbadejo. A preliminary hearing took place before an Industrial Tribunal at London (North) and by a unanimous decision promulgated on 26 June 1997, the Industrial Tribunal found that they had jurisdiction to consider the Applicant's complaints despite a time point, which was advanced on behalf of London Underground.One of the members of the Industrial Tribunal or Employment Tribunal as they are now to be called, was Mr Sam Springer, MBE. He is a distinguished lay member of the Employment Appeal Tribunal and also a distinguished and active lay member of Industrial Tribunals in that region. He was employed on the buses during his working life, he had a dispute with his employer, who was then I think the London Transport Executive, in connection with his employment. That dispute was ultimately resolved and he continued to work for the London Transport Executive on the buses until he retired on the grounds of ill-health.It is said in an affidavit in support of the appeal to us that Mr Springer did not disclose to London Underground Limited that he had a connection with the London Transport Executive in the past. London Underground Limited are well aware that there is a Mr Springer in the Tribunals who they take the view should not be adjudicating on cases involving them, but in the circumstances of this case they say that they did not know that one of the two lay members, who they were dealing with that day was Mr Springer.They say in an affidavit that had they known that Mr Springer was sitting, they would have objected to him participating because of his past connection with the London Transport Executive. They drew attention in the course of this appeal to a judgment given in the Employment Appeal Tribunal on 22 November 1993. There Mr Springer had not disclosed his connection with London Transport and the bus operation. During the course of a case involving a company called, Metroline Travel Limited, the Applicant, as I understand it in that case, was a contemporary of Mr Springer when working on the buses and the Employment Appeal Tribunal indicated that Mr Springer should have disclosed his connection and that as a result of him failing to do so, there was the potentiality for an appearance of bias which vitiated the decision and required the case to be reheard. Thus it is said that Mr Springer should have made disclosure in this case.The lay member, Mr Springer was asked for his comments in relation to this and said this:
"For the avoidance of doubt, I worked for London Transport Board until February 1985, when by arrangement I was retired on ill-health grounds rather than secondment, to enable me to take up a jointly sponsored position with Business in the Community. I have never been employed by London Underground Limited or any of the private bus companies operating in London and the suburbs. It is my understanding that London Transport Board Undertakings are all now private companies, trading independently. Somehow, there seems to be a very thick umbilical cord through a central legal department at 55 Broadway, London SW1H 0BD.
In (the present case), I do not remember the substance of the case at this time, but can assure all concerned that I approached the matter objectively, impartially and without bias. Since this matter has been raised again, I have given clear instructions to Listing at London North to ensure that I am not accidentally allocated any cases in this category, ie. cases where London Underground Limited or any of the private companies operating buses in London and the suburbs are concerned, should any error occur I will be extremely diligent to ensure that there is no repeat of this embarrassing situation.It is regrettable that the Industrial Tribunal at London North did not let me have a copy of the outcome of the appeal (to which I have referred). Had I been informed of the outcome and in particular, page 5, paragraph E to H of the decision, this matter would not have to be resolved on a second occasion."The passage to which he was making reference is this:
".........This is not a case in which the Tribunal member merely had some knowledge or experience of the particular field or the particular type of case. This is one in which the Tribunal member had himself been involved in a dispute with a predecessor company of the Appellants which was very closely parallel to the dispute upon which he was called upon to adjudicate. In view of the lapse of time, this can properly be regarded as a narrow case........."
On behalf of the Respondent to this appeal, Mr Ohaka made the observation that it was somewhat odd that London Underground should have taken the point about Mr Springer's membership of the Tribunal after and only after, the decision had been arrived at. He makes the point because it was his instructions that as is quite normal in an Industrial Tribunal at the commencement of the hearing the learned Chairwoman introduced herself and her two lay colleagues to the parties. So that even if the list may not have disclosed that Mr Springer was one of the lay members, it is Mr Ohaka's submission to us that London Underground would have known perfectly well before the hearing commenced that Mr Springer was indeed one of the two lay members.In addition to that, he would observe that the facts of the present case are miles away from the facts in the Metroline case. This case does not involve anybody with whom Mr Springer would or might have had contact during the time when he was working on the buses. He is not connected in any way, directly or indirectly with London Underground Limited.Furthermore, the decision which obviously was regarded by the Court in that case as somewhat marginal having regard to the lapse of time, was even more marginal when looking at it with 1999 eyes. Accordingly, we were invited to reject this ground of appeal.There is much to be said for the submission made by Mr Ohaka in this case. However, it does seem to us clear, on the basis of what Mr Springer himself has said, that he would have declared a potential risk of apparent bias had he been aware of what the Employment Appeal Tribunal had said in 1993 and possibly would have disqualified himself from the Industrial Tribunal. In those circumstances, having regard to the issues on this appeal only, it seems to us that there is force in the Appellant's submissions. The sequence of events should have been that Mr Springer declared his past connection however remote, with London Transport Executive and then the Tribunal would have decided whether in the circumstances Mr Springer should have stood down. At that second stage, as we understand the evidence before us, Mr Springer himself would have felt embarrassed by continuing and accordingly he would not have participated in the case. That being so, it seems to us that there can only be one result on the appeal on this ground, namely that there must be a rehearing of this case.For future guidance, we want to make it absolutely clear that the duty of disclosure is a high one. It seems to us compatible with the general trend that people who sit on various different bodies, whether they are of legal nature or not, should make full disclosure of their potential interests. It seems to us that because this is a high duty and of wide ambit, it will not be in every case where such disclosure has been made before a hearing begins, that the individual concerned could legitimately be objected to. Each individual case will have to be thought about. It is a truism that justice must not only be done but must be seen to be done, but as a corollary to a wide duty to disclose, it does seem to us that there is room for the exercise of sensible judgment to be made by the Tribunal itself as to whether there could be any sensible complaint that there was an appearance of bias, were it to continue to adjudicate as then constituted.In this case, it would have been better if Mr Springer had disclosed his previous connection with London Transport Executive. But for his letter to which I have referred, I think it is a nice question as to whether having made that disclosure, the Tribunal would think that he was no longer a person who should have sat in that particular Tribunal, bearing in mind that the events in relating to his own employment cannot have continued beyond 1985 which is very nearly 15 years ago.For that reason, we allow the appeal in this case. It is most unfortunate that this event should have occurred. We can do no more than to accept the affidavit evidence which we have been provided with, that the deponent was unaware that Mr Springer was sitting as a lay member, although we quite understand Mr Ohaka's submission on this point. We are also bound to accept the deponent's declaration that had they known that one of the lay members was Mr Springer they would have objected. It seems to me that London Underground Limited and London Transport Executive will wish to consider in the future, whether that is a position which they would always wish to adopt in relation to this lay member, bearing in mind the passage of time and the relatively remote link between the individual and the London Transport Executive, let alone London Underground Limited.Because the appeal is being allowed on that ground, we are not prepared to make any comment about the issues which lie on the appeal. The appeal was concerned with a time limit point which will now have to be decided by a new Tribunal. What we can say however, is that it does seem to us desirable that Miss Ayanbadejo's case should be heard as soon as it is practicable. By taking a preliminary time issue in this way, and then having an appeal in relation to the decision, she has been kept away from a proper hearing of her grievances. It seems to us utterly desirable on the facts of this case, that her case should be listed for a full hearing, it will of course be open to the Industrial Tribunal to consider the time limit point in relation to her complaint of sex discrimination and to rule on it at any time that they think is appropriate.In order to decide whether it would just and equitable to extend time, they may feel that they would be better informed and able to make a just decision, if they were in fact to hear her evidence on that issue before attempting to make a ruling, but that is for the Tribunal to decide what would be unacceptable in our judgment would be for this case simply to be relisted for a preliminary time point hearing, because that might lead to a further appeal and further delay before her complaint is dealt with. That would be undesirable. Accordingly, reluctantly and apologetically we allow the appeal.