MS S BURGESS v CARDINAL POLE SCHOOL LONDON BOROUGH OF HACKNEY [2000] UKEAT 1232_99_0906

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] EAT 1232_99_0906

Case No Appeal No. EAT/1232/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MS S BURGESSAPPELLANT

CARDINAL POLE SCHOOL LONDON BOROUGH OF HACKNEYRESPONDENT

Before

Mr Justice Maurice Kay Mr H Singh Mrs R A Vickers

Date 9 June 2000

[1]APPEARANCES For the Appellant MS N BRAGANZA (of Counsel) Instructed by: Messrs Johns & Saggar Solicitors 193-195 Kentish Town Road London NW5 2JU MR JUSTICE MAURICE KAY: This case is listed before us today as a preliminary hearing. Mrs Burgess is a teacher. She took proceedings in the Employment Tribunal against the Headmaster of the Cardinal Pole School against the school itself and against the London Borough of Hackney, alleging race discrimination. We do not need to go into all the detials of her allegations. Suffice it to say that the Employment Tribunal at Stratford reached the decision that the Respondents had not unlawfully discriminated against her on the grounds of her race. We content ourselves with a quotation from the final paragraph of the lengthy decision which was in these terms:

"Having had an opportunity over a number of days to observe the Applicant at the presentation of her case and in the giving of evidence, it has become abundantly clear that Mrs Burgess has built a discrimination case upon perceived unfairness in May 1998. Thereafter, she has sought to retrospectively erect a history of race discrimination where it did not actually exist. What is plain is that Mrs Burgess is a teacher of strengths and weaknesses. Her strengths are well-documented in the field of Media Studies and Sex Education. Equally, her weaknesses have been clearly exposed in the area of English A Level teaching and administration in general. Race discrimination and victimisation in that context are very serious allegations indeed and the Tribunal wishes to place on record the fact that those witnesses against whom Mrs Burgess has specifically made those allegations have had their evidence believed as credible, accurate and, together with the respondent institutions that had been cited, have not had their reputations impaired in the course of the proceedings."

[2]The proceedings themselves were of a considerable duration running over a period of some 5 days, prior to written submissions being invited and supplied. In the Employment Tribunal Mrs Burgess represented herself. She now seeks to appeal against the decision of the Employment Tribunal. Her Notice of Appeal which was self prepared, runs to some 28 pages of single spaced typing and seeks to make very many points, a lot of them as regards the evidence and facts in the case. Today Mrs Burgess has had the benefit and we say it once that the very considerable and conspicious benefit of representation by Ms Braganza who has also supplied us with a skeleton argument. Ms Braganza has wisely in our view and no doubt on instructions, limited the appeal effectively to one issue. It is said on behalf of Mrs Burgess that the decision of the Employment Tribunal should not stand because of an appearance of bias and or procedural irregularity on the part of the Chairman. The specific matter upon which Ms Braganza focuses relates to the final day of the 5-day hearing. We should say a little as to events proceeding that 5 th day. The matter had originally been listed for a 5 day hearing, it being anticipated that the Tribunal would sit on 27, 28, 29 and 30 April and also on 4 May. The hearing proceeded on 27, 28, 29 April but on the fourth day of the hearing, 30 April, it very soon became obvious that Mrs Burgess was in no position to proceed. She was visibly unwell. Without going into more detail than is necessary, the Chairman of the Tribunal has submitted to the Employment Appeals Tribunal a statement which includes the following passage:

"Mrs Burgess entered the room but it was immediately apparent to myself and the members that she was unwell. I have recorded that she looked very pale, walked with a crooked gait and was obviously dry mouthed when she indicated she was sick. She also said she was nervous. As fair as the Tribunal was concerned, there was no question of Mrs Burgess being allowed to continue in that condition. The case was adjourned immediately upon the Tribunal's initiative led by myself. In order to ensure no time or inconvenience was occasion to the Respondents or the Tribunal on the remaining day, 4 May 1999, I gave Mrs Burgess the following directions: 1) She should proceed from the Tribunal to her G.P's surgery for examination 2) Her G.P should send the fax with a simple message to the Tribunal of his/her findings and prognosis for recovery by 4.00pm on 30 April 3) Mrs Burgess should contact the Tribunal by 4.00pm on 30 April to indicate whether she will be fit to continue at 10.00 on Tuesday 4 May 1999."

[3]The reason for the planned delay between 30 April and 4 May was that Monday 3 May was a bank holiday. Mrs Burgess' then attended upon her G.P and he sent by fax a certificate to the Tribunal later that day. It is in the form of a certificate. It refers to a number of conditions from which Mrs Burgess was suffering and certifies that:

"She will be able to attend hearing on 5/05/1999."

Upon receiving that certificate the Tribunal no doubt understandably felt itself in something of a quandary. The date given for the resumed hearing was not 5 May but 4 May. No doubt other cases were listed on 5 May and from day to day thereafter. What happened next is a matter of some controversy as to the detail, but it seems possible to construct this uncontroversial summary of it. Somebody from the Tribunal most probably Mr Tysome a member of staff acting on the instructions of the Chairman telephoned the G.P for clarification. We have the benefit of note from Mr Tysome, which says:

"I spoke to Dr Petru explained that I was the clerk dealing with the case and that I needed clarification regarding the certificate. Dr Petru confirmed that he had certified Mrs Burgess fit to attend the Tribunal hearing on 5 May 1999. I explained that the Tribunal hearing was on 4 May rather than 5 May and asked if Mrs Burgess would be fit to attend or not. Dr Petru confirmed that Mrs Burgess would be fit to attend on 4 May 1999. I wrote a file note to that effect and attached it to the certificate. I informed the Chairman and Mrs Burgess was notified either by Mr Mammood or myself that the hearing was to go ahead on 4 May 1999."

[4]We do not overlook the fact that there are disputes as to the precise accuracy of that account. Apparently Dr Petru, who has also submitted a document, was under the impression that he was talking to the Chairman rather than a member of staff and in his document he stops short of saying that he 'opined expressly that she would be fit on 4 May' putting it rather in the form that it was a matter for her own decision as to whether she was well enough or not. In our judgment the precise details of that do not really matter, what is common ground is that Mrs Burgess did faithfully attend on 4 May and, in the words of her own affidavit, the Chairman at the outset asked her whether she was alright and she simply said that she was. It is true that she says also that in the light of :

" All that had happened. "

And:

"Being too scared and too drained in any way to challenge him ."

But there is no doubt that an inquiry was made as to her well being and that she confirmed it.

[5]In addition the Chairman's statement to the Employment Appeal Tribunal dealing with the events of that day states:

"The Applicant did not look unwell or behave nervously, nor did she indicate to the Tribunal that she required a further adjournment despite enquiry being made."

The way in which Ms Branganza puts the case is very responsibly and properly first to eschew any suggestion of actual bias on the part of the Chairman for the Tribunal. Rather, she submits this is a case of an appearance of bias which, where it is or may be made out, is of course sufficient to vitiate a decision. We therefore have to consider whether what took place in the dealings with the Doctor and the resumption of the hearing on 4 May discloses anything which might be considered as giving rise to an appearance of bias. We have not had the benefit of detailed submissions on the rights and wrongs in law of the Tribunal approaching the Doctor without the knowledge or consent of his patient; but we are prepared to assume for the purposes of the present proceedings that that is something which the Tribunal ought not to have done on grounds of confidentiality. It seems to us to be by no means certain that that conclusion is correct in law but without the benefit of further submissions, we shall assume it to be so.

[6]Given that there is no suggestion of actual bias, we have to consider whether there is a case of arguable bias in the Tribunal having approached the Doctor and, subsequently having acted upon the conversation with him in the way that it did. In our judgment that does not disclose any arguable case of actual bias, even if it was an inappropriate thing to do, by reference to Mrs Burgess' private rights. Absent any suggestion of actual bias, it seems to us be inevitable that at its highest it is something that was done inappropriately but not in bad faith or improperly nor with the appearance of bias in any way. We appreciate of course that bad faith and the like are not prerequisites in a case of this kind.

[7]We are simply placing on record the fact that on the documents and on the basis of the submissions there is in our judgment no basis for coming to a conclusion that there was actual bias in going about things in that way. Whatever was said by the Doctor on the telephone, however accurately or inaccurately it was recalled by the maker of the call and however accurately or inaccurately it was relayed to the Tribunal, the fact is that at the commencement of the hearing on 4 May, the Chairman enquired about Mrs Burgess well being and received an assurance from her about it. It is important in this context to understand the Chairman's perception of Mrs Burgess. Although she was a litigant in person and entitled to due consideration by reason of that status, long before he knew that there was to be any allegation of bias or irregularity in this case, the Tribunal Chairman committed his impressions of Mrs Burgess to paper in the actual decision. She is there described as: 16. "A robust individual who does not hesitate to express her views in a critical context." And there are similar observations in any other part of the decision.

[8]The conclusion to which we have come is that there is no arguable case of an appearance of bias in this case. We have concentrated on the events of 30 April and 4 May. In the course of her submissions, whilst expressly abandoning all the other grounds of appeal, Ms Braganza sought in one sense to bring them into the equation by inviting us to view the events of 30 April and 4 May in the light of what had gone before including the refusal of an adjournment at the outset of the proceedings, the way in which the Tribunal dealt with disclosure of documents by the Respondents and the way in which it is suggested the Chairman treated Mrs Burgess. It seems to us that as it is accepted that those matters do not give rise to any arguable ground of appeal it would be quite wrong for us to pay much attention to them in the context of the real issue in this hearing, which relates to the events of 30 April and 4 May.

[9]Having come to the conclusion that there is no arguable case of an appearance of bias, we have been concerned to consider also whether, absent an appearance of bias, there might nevertheless be some arguable ground of appeal on the basis that, albeit without bias or the appearance of it, the Tribunal did something in relation to the fitness of Mrs Burgess which was done in a way which may not have been procedurally correct.

[10]In our judgement even if incorrectness is assumed and even if a breach of confidentiality is assumed, albeit without bias or the appearance of it, none of that gives rise to any arguable ground of appeal to this Tribunal. It may justify complaint in other quarters, but in our judgment it does not do anything which gives rise to a point of law, such as might arguably vitiate the decision to which the Employment Tribunal came. In all those circumstances we have come to the conclusion that this appeal, well though it was argued by Ms Branganza, in fact has no prospect of success and we shall dismiss it at this stage.