MR F A HARAKIS v DEPARTMENT OF HEALTH [2000] UKEAT 1339_98_0604

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 1339_98_0604Case No Appeal No. EAT/1339/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR F A HARAKISAPPELLANTDEPARTMENT OF HEALTHRESPONDENT
Before
Mr Justice Charles Mr D J JenkinsDate 6 April 2000
[1]APPEARANCES For the Appellant MISS K MONAGHAN (of Counsel) Instructed By: Mr D M Greene Messrs Edwin Coe Solicitors 2 Stone Buildings Lincoln's Inn London WC2A 3TH For the Respondents MISS J MULCAHY (of Counsel) Instructed By: Miss E O'Neill Office of the Solicitor Department of Social Security Department of Health Room 523 New Court 48 Carey Street London WC2A 2LS MR JUSTICE CHARLES : The parties to this appeal are a Mr Harakis (the Appellant and the Applicant before the Employment Tribunal) and the Department of Health. The appeal is against a decision of an Employment Tribunal sitting at London (South) the Extended Reasons for which were sent to the parties on 27 August 1998. Although it does not appear from those Extended Reasons it was common ground that the hearing was before a full Tribunal and not a Chairman sitting alone. The decision was that the Appellant's applications were dismissed.[2]The background and the nature of the claims made by the Appellant appear from paragraphs 1 to 4 of the Extended Reasons which are in the following terms: 1 We heard the application of Mr F A Harakis that the Respondent, the Department of Health, was in breach of his contract of employment and he claimed damages for the breach. The Applicant represented himself, and the Respondent was represented by Miss J Mulcahy of Counsel. 2 Mr Harakis was employed by the Respondent between November 1973 and September 1997 as a Higher Executive Officer. For the period covered by his claim, he worked in the Department's Voice Telephony Unit with four employees reporting to him. His responsibilities included maintaining and monitoring the voice telecommunications systems and the allocation and provision of mobile phones and fax machines within the Department. 3 There were no specific written terms and conditions of employment, but a Staff Code was applied to govern such terms and conditions until 1994 and this covered, inter alia, provision for overtime payments. A Conditions of Service Manual was introduced by the Respondent in December 1994. This was said to replace Staff Code which was to be destroyed on publication of the new document. 4 The Applicant's claim was made in two parts:(a) A claim for an on-call and stand-by allowance for the period 1989 to August 1996 during which Mr Harakis held a pager. That claim totals £15,900.(b) An overtime claim in respect of meals taken during travelling on days when Mr Harakis worked overtime between a period three years prior to February 1996 and February 1996 when he put in a claim to the Department."[3]In respect of the claim described in paragraph 4(a) of the Extended Reasons the Appellant relied on paragraph 34, Chapter 15 (Allowance and Pay Additions) of the pay manual which provided that:
"Officers in grades eligible for overtime … are also eligible for on-call allowances if they are required to be on call at their homes or with a radio pager, or to stand-by at their office. … "
[4]This claim was dealt with in paragraphs 5 and 6 of the Extended Reasons which are in the following terms:
"5 As regards (a), we find that all staff in the Voice Telephony Data Network and Video Conferencing Units, in common with many other staff, carried pagers. This was for speedy and easy communication between staff and Managers, since the nature of the job required them to spend fair proportions of their time moving around within and between various buildings on the Department of Health estate. 6 The Respondent's policy for payment of on-call allowance is set out in the Conditions of Service Manual, prior to which it was set out in the DHSS Staff Code. Certain conditions of payment are also on the form used to make the claim itself. Staff are entitled to claim on-call allowance when they are required as part of a rostered duty to remain at home or carry a mobile pager out of normal working hours. For duty to amount to 'rostered duty' it must be carried out pursuant to the express instruction of the employee's line manager. In the case of Mr Harakis. that was Mr Rudge, the Section Head. We accepted Mr Rudge's evidence that there were no specific on-call duties or arrangements for staff within his section, which was required to support for voice data and video conferencing services between the hours of 8.00 a.m. and 6.00 p.m. Monday to Friday only. The section therefore did not normally provide cover outside of normal working hours. On those occasions where working was required, for example the move of staff from one building to another, this was scheduled overtime. Special arrangements were devised to be followed when resolving a 'major incident'. However, this did not involve Mr Harakis being on a specific rostered duty. Mr Harakis, therefore, was not on a roster for carrying a pager outside normal office hours. The carrying of a pager did not, of itself, entitle him to claim on call allowance, since he did not meet the conditions to enable him to claim such an allowance."
[5]As appears from these paragraphs the Employment Tribunal found that the fact that the Appellant carried a pager did not, of itself, entitle him to claim on-call allowance since he did not meet the conditions to enable him to claim such an allowance. As appears from paragraph 6 of the Extended Reasons that decision is based upon the acceptance by the Employment Tribunal of the evidence of a Mr Rudge.[6]Before us (in our judgment correctly) it was not argued that the Appellant was entitled to on-call allowance on the basis that he carried a pager.[7]As described in paragraph 4(b) of the Extended Reasons the second claim was in respect of meals taken during travelling on days when the Appellant worked overtime. In his IT1 the Appellant put this claim as follows:
"The overtime rates as constructed are based on 41 hours weekly, thus including 5 hours for lunch breaks. Therefore we are entitled to add a proportional element for lunch break if not taken during the period spent in official premises."
[8]Common ground between the descriptions of the claim in the IT1 and the Extended Reasons is that the Appellant did not take meal breaks at the premises of the Department during the period that he worked overtime. During argument before us it was asserted that the Appellant was entitled to be paid for:(a) a meal break taken by him during his travelling time to and from his place of work to do overtime, and(b) payment for meal breaks which it was alleged he was entitled to take in respect of the hours of overtime he worked but which he did not take either at the premises of the Department or during travelling time for the purposes of overtime work carried out by the Appellant.[9]The Appellant makes this claim on the basis of what he asserts to be an implied term of his contract of employment.[10]The background to the claim and common ground between the parties is as follows: (a) The Department's conditions of Service Manual replaced its Staff Code. This appears, for example, from a letter dated 14 May 1997 from Lynn Thompson (Personnel Services) to the Appellant in the following terms:
"On-call/Standby Allowance and Overtime Claims Attached for your information are extracts from the Staff Code relating to the need for 'a specific rostered commitment' in order to be eligible to claim on-call or standby allowance, and paragraphs relating to paid meal breaks. While the Conditions of Service Manual does replace the DHSS Staff Code, our legal advice is that the Staff Code can be used for clarification of practice, if no negotiation to change a condition of service has taken place."
As is apparent therefrom this letter relates to the two claims made by the Appellant. (b) Paragraph 1 of the Personnel Management Manual contained in the Conditions of Service Manual provided that:
"1. Conditioned hours are the number of hours worked for the purpose of calculating pay, and these hours are normally worked over a five day week. The conditioned hours for all staff, except Support Grades, working in the London pay area are 36 (ie 7 hours 12 minutes per day), excluding lunch breaks, and 37 (ie 7 hours 24 minutes per day) elsewhere. Support Grade staff work a 37 hour week excluding lunch breaks. Conditioned hours can either be: - fixed hours; or - flexible working hours (flexitime)." (c) The Pay Manual contained within the Conditions of Service Manual provides that overtime hours are: "
Calculated by reference to … the conditioned hours of the officer concerned". (d) The Conditions of Service Manual contains no specific provision in respect of meal breaks during overtime hours. (e) The Staff Code did make provision for meal breaks during overtime hours. It contained the following provisions:
"Overtime 445. The following paid meals intervals may be awarded when overtime is being worked:- (1 ) Overtime at the end of the normal working day. Additional attendance Interval 3 hours or more 30 minutes 2 hours but less than 3 hours 15 minutes (2) Overtime on a Saturday or a Sunday or, for a shift worker, on a scheduled rest day When an officer attends for overtime on what is normally a non-conditioned day ie Saturday, Sunday or rest day, the following lunch breaks are permissible:- (a) Actual work performed 6 hours or more – 1 hour (b) Actual work performed 2½ hours or more but less than 6 hours - ½ hour It follows from (a) that overall attendance on the day including the lunch break must be 7 hours or more, whereas in (b) the overall attendance must be more than 3 hours, but less than 7 hours. Where the actual work performed is less than 2½ hours, or overall attendance is less than 3 hours, no lunch break is permitted within the overall period of attendance. Paid meal breaks during overtime are provided for refreshment purposes and may not be used merely to increase overtime credits. These intervals should be taken as genuine breaks in the working period and not used to shorten the total attendance unless, by analogy with SC 443, they are varied to suit the time of the local public transport arrangements. In the event of a variation in this way the officer should record his actual times of arrival and departure in the overtime record and the entry annotated in red ink to indicate the time credit or debit, as appropriate."
[11]As we understood it, a small part of the Appellant's claim related to a period when the Staff Code was still effective but the great majority of his claim related to a period when the Staff Code had been overtaken and replaced by the Conditions of Service Manual and was no longer of contractual effect.[12]The Department's case (as for example appears from the letter of 14 May 1997 set out above) was that although the Staff Code no longer had contractual effect it was and could be used for clarification of practice. The Department's case was that as a matter of custom and practice the Appellant was entitled to take and be paid for meal breaks in accordance with the old Staff Code.[13]The paragraphs of the Extended Reasons which deal with the overtime claim in respect of meal breaks are paragraphs 7 to 13 and they are in the following terms: 7 The conditions for claiming overtime are contained in the Conditions of Service Manual. Although the manual does not expressly cover the payment of meal breaks when working overtime, the Respondent's management continued to apply the policy set out in the Staff Code. This states that when a member of staff had completed 6 hours or more of overtime, he/she was entitled to a 1 hour paid meal break. Those who worked for more than 2½ hours but less than 6, were entitled to a ½ hour paid meal break. The Staff Code stated that these breaks should be genuine breaks and not used to shorten the total attendance, except when there were particular travelling problems when using public transport. 8 It was Mr Harakis' case that since the Conditions of Service Manual does not cover the payment of meal breaks when working overtime, the Staff Code could not be applied since it was directed to be destroyed when the Conditions of Service Manual was published. He claimed that he was entitled to claim for breaks during overtime to be calculated from when he left home and including his travelling time on his return journey home. Mr Harakis claimed that since the provision for meal breaks during overtime was not specifically covered in the Conditions of Service Manual, and therefore proper departmental guidance and rules on overtime recording and claiming no longer existed after December 1994, he should be given the benefit of any doubt on this point. He claimed further that, since overtime rates were based on 41 hours per week, thus including 5 hours for lunch breaks per week, staff were entitled to a proportional element for a lunch break if not taken during the period spent on official premises. The Department's payroll has always calculated salaries of full-time staff on the gross hours which they work, i.e. including a 1 hour daily meal break. 9 It is clear from the overtime claim form that travelling time is separate from overtime. 10 Dealing with the on-call claim first , we are unanimous in finding that the Applicant does not qualify for any allowance. He was never required to be on call at his home. We have accepted the evidence of Mr Rudge about the circumstances in which the pager was given to the Applicant and the purpose for which it was given. In addition. there was a duty officer system to deal with emergencies. It is our view that this claim never gets off the ground. 11 On the matter of overtime: part of the Applicant's claim is covered by the provisions of the Code which was in force until November 1994 and the other part is covered by the Conditions of Service. The terms and conditions of service do not make any provision for payments for travelling time or meal breaks. 12 It is the Respondent's case, however, that custom and practice led them to continue to pay for travelling time and meal breaks as formerly set out in the Code. The Applicant cannot succeed in claiming that the Respondent had a contractual liability to pay him for a meal break during his period of travelling after he had left the office. In any event, the Applicant is not in a position to prove his claim. The Tribunal could not accept the estimated figures put forward by him. 13 This application, therefore, fails and is dismissed."[14]As appears from these paragraphs the Employment Tribunal accepted that the Respondent's management continued to apply the policy set out in the old Staff Code in respect of meal breaks when working overtime, and found that the Appellant could not succeed in claiming that the Department had a contractual liability to pay him for a meal break during his period of travelling after he had left the office.[15]This finding that there was no contractual entitlement relates to the way in which the claim was put before the Employment Tribunal as described in paragraph 4(b) of the Extended Reasons. It would apply equally to the extended way in which the claim was put to us (see paragraphs 16 and 17 below). This is because both descriptions of the claim fall within the Appellant's assertion that there was an implied term of his contract of employment that he should be entitled to take and / or be paid in respect of lunch breaks.[16]The way in which the Appellant asserted to us that there was such an implied term is as follows:(a) the Staff Code ceased to have any contractual effect, and(b) as conditioned hours were 36 hours excluding lunch/meal breaks (i.e. 5 hours of lunch/meal breaks) but overtime rates of pay were calculated by reference to a 41 hour working week, it is an implied term that an employee working overtime should be entitled to paid lunch/meal breaks.[17]The Appellant bases this argument on the proposition that an hourly rate for overtime calculated on a 41 hour week is less than the hourly rate calculated on conditioned hours (i.e. a 36 hour week) and therefore, as it could not have been intended that a person working overtime would receive less per hour of work than a person working their conditioned hours, it must be implied that an employee working overtime is entitled to lunch/meal breaks so as to give a result that the basic hourly rate of a person working overtime is the same as a person working conditioned hours.[18]As pointed out during the hearing before us this proposition ignores the point that the overtime rate was the hourly rate plus a percentage.[19]Further, and even if it is accepted that the assertion contained in paragraph 17 made by the Appellant gives rise to an implication that there should be an entitlement to paid lunch/meal breaks the assertion does not support an implication that:(a) such lunch/meal breaks could be taken during travelling time,(b) the entitlement to such lunch/meal breaks should be assessed or calculated by reference to travelling time as well as overtime hours worked, or(c) the employee would be entitled to payment in respect of a lunch/meal break to which he was entitled but which he did not take whilst at work (or whilst travelling to and from work for the purpose of carrying out overtime hours).[20]Further, the assertion relied on by the Appellant does not identify with any certainty what entitlement to lunch/meal breaks would arise in respect of overtime working of say 3 hours, 6 hours or 10 hours. This has the effect that it cannot be said with any certainty what term should be implied to give business efficacy to the contract or as a matter of obvious inference.[21]In our judgment, having regard to the points made above, the Appellant's argument that there was an implied term which entitled him to make the claim that he did was an ingenious but hopeless argument. The Grounds of Appeal The first ground – the decision not to admit documents.[22]There had been no order for discovery but, as one would expect, the Department prepared a bundle of documents for the hearing. When that bundle was prepared some of the documents mentioned in the index were not included in the bundle. This alerted the Appellant to their absence and he called for their production. The documents with which we are concerned are a note and enclosures from "Lynn" to "John and Stephen" dated 22 April 1998 which would have been at pages 109 to 109B of the original bundle and a minute from Lynn Thompson to Richard Le Cheminant dated 30 April 1997 which would have been at page 110 of that bundle.[23]Before the Employment Tribunal the Department objected to the production of these documents on the ground that they were covered by legal professional privilege.[24]It is accepted that in making that claim in respect of the minute dated 30 April 1997 the Department made a mistake.[25]As to the other documents there has been some muddle on this appeal. Initially the Department was of the view that it had claimed legal professional privilege in respect of these documents by mistake and the documents were produced. However, on further consideration the Department changed its mind and in the skeleton argument put in for today's hearing asserted that such documents were covered by legal professional privilege because at the beginning of the note a reference to legal advice is made and it was asserted that the note and its enclosures discuss that advice. However, during the course of the hearing the Department indicated that it would waive any claim for legal professional privilege in respect of the documents on the basis that such waiver related only to this case and that copies of the documents were returned at the end of the case.[26]Having taken this stance the Department before us did not argue that the Employment Tribunal had been correct to exclude the documents on the basis that they were subject to legal professional privilege. The stance of the Department was that the fact that the documents were not disclosed did not result in any unfairness and it was clear that if they had been disclosed the Employment Tribunal would still have reached the same conclusion.[27]In our judgment in these circumstances we should proceed on the basis that the Employment Tribunal did err in law in not ordering disclosure of these documents, either on the basis that the documents are not covered by legal professional privilege, or on the basis that they did not investigate the assertion of legal professional privilege with sufficient thoroughness and, if they had, the Department would have waived any claim to privilege.[28]The documents are relevant in the sense that they relate to the Appellant's claim. It follows that we proceed on the basis that relevant documents sought by the Appellant were not disclosed. However, in our judgment, this does not of itself mean that we should remit this case to the Employment Tribunal.[29]In our judgment Counsel for the Appellant was correct to accept that to succeed on this appeal on the basis that these documents were not disclosed she had to demonstrate that their non-disclosure led either to some unfairness and therefore, or otherwise, to a possibility that the Employment Tribunal would have reached a different conclusion.[30]Put another way by reference to Dobie v Burns International Security [1984] ICR 812 we should allow the appeal and remit to the Employment Tribunal unless we conclude that notwithstanding the error of law in not ordering disclosure of the documents the decision of the Employment Tribunal was plainly and unarguably right.[31]The note dated 22 April 1998 contains the following passages:
"Below are some questions / thoughts which I think need to be addressed before we send the reply to Mr Harakis … (1) [ In this paragraph advice from the Legal Department is set out which accords closely with the assertion of the legal position contained in the letter dated 14 May 1997 which we have referred to earlier ]. (3) I have checked his overtime and he consistently worked over 6 hours at a weekend, this therefore entitles him to a 1 hour meal break. (4) As we are aware this officer has been investigated for claiming overtime falsely. If it turns out that he has claimed for overtime for which he is not entitled will we be compounding the overpayment if we allow him to claim for meal breaks?"
. One of the enclosures under the heading "Comment" contains the following:
"For the purposes of calculating pay conditioned hours are the number of hours worked, ie 36 for staff in the London area (Annex B). This applies equally to overtime rates and conditioned hours (Annex C)."
The minute from Lynn Thompson to Richard Le Cheminant reads as follows: 'F Harakis: Overtime Claims 1. You will by now have received a copy of my response to Mr Harakis. 2. As you can see, and as we discussed, we are arguing that time for paid meal breaks is allowed as long as the individual takes genuine breaks in the period. Attached is a copy of the relevant extract from the Staff Code outlining meal break allowances. 3. You should also be aware that the hourly rate for overtime is calculated over a 41 hour week not 36. The Civil Service Management Code states that conditioned hours can either be expressed as 36 hours (37 outside London) per week excluding 5 hourly meal breaks or 41 hours (42 outside London) including 5 hourly meal breaks. 4. I hope this is helpful. Happy to discuss'."[32]The author of that internal minute Lynn Thompson was the witness who gave evidence on behalf of the Department in relation to this claim before the Employment Tribunal. As appears from that minute it corrects the error in the "Comment" we have set out above that overtime rates were calculated by reference to a 36 hour week.[33]It is not clear on the papers whether the "Comment" set out above was one made by Richard Le Cheminant and thus whether the minute set out above is a reply to it. At page 104 of the bundle of documents before the Employment Tribunal there is a minute from Richard Le Cheminant to Lynn Thompson dated 10 April 1997. Paragraph 2 of that minute is in the following terms:
"2. In earlier briefing to David Clark on an appeal by Mr Harakis, we advised (see attached extract) that, based on paragraph 1, chapter 3 of the Personnel Management Manual and paragraph 5, chapter 14 of the Pay Manual, Mr Harakis was wrong in arguing he was entitled to paid lunch breaks for weekend overtime. Assuming this is correct, I suggest that the position needs to be spelt out clearly in your reply to Mr Harakis. However, you did say that meal breaks were sometimes paid to staff; could you say in what circumstances?"
. It may be that the minute dated 30 April 1997 and set out above is a response to that earlier minute of 10 April 1997 rather than to the "Comment" set out above.[34]It was argued on behalf of the Appellant that the non-disclosed documents would have been a useful tool in cross-examination and would have gone to credibility.[35]The first point we make as to this submission is that the Appellant's claim and argument that there was an implied term did not depend upon the evidence of the Department's witnesses. Rather, his claim was based upon an assertion that from the documents and, in particular because the Staff Code had ceased to have contractual effect and overtime rates were calculated by reference to a 41 hour week, he was (by implication) entitled to the payments he claimed.[36]It was said that the cross-examination would have gone to the issue whether as a matter of custom and practice the Department did pay for lunch/meal breaks in accordance with the old Staff Code. It was submitted to us that the "Comment" we have set out above showed that someone in the Department's Pay Department did not know the correct position. This we accept but we do not see how the introduction of this document would have assisted in the cross-examination of Lynn Thompson (who was the Department's witness on this issue) because she corrects the position in her minute of 30 April 1997 which is in accordance with her witness statement. Further, it seems to us that the minute from Richard Le Cheminant dated 10 April 1997 would be a better cross-examination tool to demonstrate that some people within the Department were unaware of the practice asserted by Lynn Thompson in her witness statement relating to lunch/meal breaks and the old Staff Code, and this minute was in the bundle before the Employment Tribunal.[37]The Appellant also argued before us that paragraphs 3 and 4 of the note from Lynn (who we understand to be Lynn Thompson) to John and Stephen would have been a useful took for cross-examination and could have shaken the credibility of Lynn Thompson. It was said that these paragraphs demonstrated that the Department accepted that the Appellant had an entitlement to payment for a lunch/meal break after working six hours and therefore that it supported the Appellant's case. We do not understand this because it seems to us that on a fair reading of paragraphs 3 and 4 of this note Lynn Thompson is referring to the old Staff Code. We have cited from the old Staff Code above and it provided that in respect of a weekend a lunch break of one hour was permissible if the actual work performed was six hours or more.[38]It therefore seems to us that any cross-examination of Lynn Thompson based on paragraphs 3 and 4 of this note would have elicited the answer that she was asserting in the note that the Appellant could claim pursuant to the terms of the old Staff Code. This was the Department's case.[39]To succeed the Appellant had to show that the old Staff Code did not apply and that a term, or terms, to different effect should be implied.[40]At the very most it seems to us that the documents that were not disclosed might have been used to support an assertion that there was some muddle and confusion within the Department as to the entitlement of an employee working overtime to take and be paid for lunch/meal breaks and thus:(a) there was not a clear cut practice, and(b) the term that should be implied was that asserted and relied on by the Appellant rather than, for example, the continued application of the Staff Code. However in our judgment: (a) this point could have been made with equal, if not greater, force by reference to other documents in the bundle (e.g. the minute dated 10 April 1997) and by the Appellant from his knowledge of the workings of the Department and the manner in which claims for payment of overtime were made, and (b) such line of argument would, in any event, not have assisted the Appellant.[41]We have therefore concluded that in respect of the claim made for overtime payment relating to lunch/meal breaks the non-disclosure of the documents with which we are concerned (and which we have described in paragraph 22 hereof) did not result in any unfairness, did not have any effect on the outcome of the hearing in respect of this claim and notwithstanding their non-disclosure the decision of the Employment Tribunal on the Appellant's claim to be paid for lunch/meal breaks is plainly and unarguable right.[42]As to the other claim made by the Appellant, namely that in respect of on-call payments, Counsel for the Appellant did not point to any part of the non-disclosed documents which she said would have been put to Mr Rudge, who gave evidence on behalf of the Department in respect of this claim. In our judgment even if the Appellant had been able to demonstrate that if he had had the non-disclosed documents he could have used them to effectively attack the credibility of Lynn Thompson, we do not see how an attack on her credibility would have affected the credibility of Mr Rudge, or would otherwise have assisted him in making his claim for on-call payments.[43]In our judgment the non-disclosure of the documents with which we are concerned had no effect on that claim and the decision of the Employment Tribunal thereon is plainly and unarguably right. The second ground - New evidence that demonstrated that one of the Department's witnesses (Lynn Thompson) did not tell the truth[44]As to this ground of appeal the Appellant alleges that Lynn Thompson gave evidence that travelling time was paid for at a different rate to overtime worked. The Appellant says that this took him by surprise and that if he had anticipated that such evidence would be given, he would have produced one of his pay slips to show that travelling time was paid at the same rate as overtime.[45]The first point we make as to this is that if at the hearing the Appellant had thought that the rate of pay in respect of travelling time and overtime was significant, he could have put to Lynn Thompson from his memory that he was paid at the same rate.[46]Further as to this point we note that the Appellant did not obtain notes of evidence to show that Lynn Thompson gave such evidence and this has not been accepted.[47]In addition in respect of this point the Employment Tribunal state at paragraph 9 of the Extended Reasons that: "9 It is clear from the overtime claim form that travelling time is separate from overtime." and this is supported by reference to the pay slip that the Appellant seeks to introduce by way of new evidence. It seems to us that it is this point rather than the rate of pay for overtime on the one hand and travelling time on the other that is more important in respect of the Appellant's claim.[48]In our judgment prior to the hearing before the Employment Tribunal the Appellant must have been aware that to make his claim good he had to deal with why he said he could claim for lunch/meal breaks taken during his travelling time and / or why he said travelling time was to be taken into account in calculating his entitlement to lunch/meal breaks. As to that, he must have known that travelling time was included separately in his pay advice. Further, he was aware that it was the case of the Department that payment in respect of lunch/meal breaks was governed by the old Staff Code and therefore that it was the Department's case that lunch/meal breaks should be taken as genuine breaks in the working period.[49]It follows in our judgment that the Appellant could not have been taken by surprise by an assertion by the Department that travelling time was treated separately to overtime and was not to be taken into account in respect of the entitlement of an employee working overtime to lunch/meal breaks.[50]For present purposes we accept that Miss Thompson gave evidence that (or which was understood by the Appellant to be that) travelling time was paid at a different rate to overtime but in our judgment that was of no real significance.[51]Further it seems to us that if the Appellant had produced his pay slip it would have confirmed that travelling time was treated differently to overtime and therefore have compounded his difficulties.[52]It follows, in our judgment that if the Appellant had acted with reasonable diligence he would have had his pay slip available at the hearing, and, in any event, the introduction of the pay slip as a document before the Employment Tribunal would not have had any influence on the result of the case but, if we are wrong as to that, and it would have had some influence it would have assisted the Department rather than the Appellant.[53]It follows that in our judgment this ground of appeal fails (and see in respect of the reasoning set out above Ladd v Marshall [1954] 3 AER 745 and Wileman v Minilec Engineering Ltd [1988] ICR 318).[54]In our judgment correctly it was not asserted that this ground had any relevance to the decision made by the Employment Tribunal in respect of the on-call payments. The third ground - The conduct of the Chairman gave the appearance of bias[55]This is a separate ground to the first and second grounds of appeal which could be described as grounds of unfairness or procedural irregularity.[56]In support of this third ground the Appellant relies upon matters set out in an affidavit which was sworn pursuant to this Tribunal's relevant current Practice Direction and the reasons given by the Chairman of the Employment Tribunal for refusing the Appellant's application for a review. His application for a review was based in part on the allegations set out in his affidavit and which he relied on before us to support his assertion that there was apparent bias.[57]In our judgment correctly, the Appellant's Counsel asserted that the relevant test in respect of apparent bias is that set out in Peter Simper & Co Ltd v Cooke [1986] IRLR 19, where at paragraph 10 of his judgment Peter Gibson J says this:
"Not only must be no bias on the part of the tribunal but also the tribunal must not give the appearance of bias. Where there is an allegation of bias based on the conduct of one or more members of a tribunal at a hearing, the test is, in our view, an objective one: would the reasonable observer present at the hearing, not being a party, or associated with a party, to the proceedings but knowing the issues, reasonably gain the impression of bias. That impression may be given by the appearance of a closed mind against a party on a matter which calls for decision by the tribunal when that party has not yet presented all his evidence relevant to the point or had the opportunity of addressing the tribunal on that evidence."
As is apparent that case is directed specifically to this jurisdiction. In our judgment the objective approach set out in the Peter Simper case accords with the more recent authority in the House of Lords regarding issues concerning bias contained in R v Gough [1993] AC 646 and R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No.2) [1999] 2 WLR 272 . More recently in a case called Brooks Bank v Buckingham County Council EAT/504/97 a case concerning apparent bias, this Tribunal adopted the approach of Lord Goff in R v Gough [1993] AC 646 at page 647, when he said this:
"... the test to be applied in all cases of apparent bias was the same, whether concerning justices, members of inferior tribunals, arbitrators or jurors, and in cases involving jurors, whether being applied by the judge during the trial or by the Court of Appeal when considering the matter on appeal, namely, whether, in all the circumstances of the case, there appeared to be a real danger of bias, concerning the member of the tribunal in question so that justice required that the decision should not stand."
Lord Goff explained that he preferred 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.[58]In the Pinochet case at [1999] 2 WLR 284 E to G Lord Browne-Wilkinson raises, but leaves open, the point whether the real danger or possibility test may need to be reviewed in the light of subsequent decisions. The possible review is to determine whether the real danger or possibility test should be modified to make the relevant test the question whether the events in question give rise to a reasonable apprehension, or suspicion, on the part of a fair minded and informed member of the public that the judge was not impartial.[59]In our view it is not easy to identify in the abstract the distinctions between an objective test based on the appearance of a real danger or possibility of bias and one based on reasonable apprehension or suspicion of bias, save perhaps in the general sense that the former may in some case be a more stringent and difficult test to satisfy for a person alleging apparent bias.[60]The Court of Appeal have recently heard a selection of cases raising points relating to bias based on the interest, or position, of a judge or a tribunal member (one of the cases being called Locabail UK Ltd v Bayfield Properties Ltd ). Only a short report of this case was before us at the hearing but it is reported in [2000] 1 AER 65. The full report confirms our understanding at the hearing based on the short report that the Court of Appeal in the Locabail case supports the view that the correct test is the real danger or possibility test (see in particular [2000] 1 AER at 73g to 74e where passages from the speech of Lord Goff in the Gough case are set out and at 74 g/h where the Court of Appeal say this: " For whatever the merit of the reasonable suspicion or apprehension test, the test of real danger or possibility has been laid down by the House of Lords and is binding on every subordinate court in England and Wales" .[61]When we were considering this case we had not read this report and were unaware of this clear statement by the Court of Appeal and took the approach that we considered to be the most beneficial to the Appellant of considering first what is, in our view, the less stringent test, namely one based on reasonable apprehension or suspicion of bias and concluded on that basis that the Appellant has failed to establish apparent bias.[62]It follows, in our view, that the Appellant has also failed to establish apparent bias on the basis of the real danger or possibility test.[63]The allegations made by the Appellant to support his claim of apparent bias are not agreed. This could give rise to difficulties if there was a need to resolve the dispute of fact to determine the issue. However in this case these difficulties do not arise because we have reached our conclusion rejecting this ground of appeal on the basis that is most favourable to the Appellant, namely on the basis of an assumption that although they are disputed (and we have made no finding in respect of them) the facts asserted and relied on by the Appellant to establish his claim that there was apparent bias are true.[64]In his affidavit Mr Harakis relies on two matters to support his allegation of apparent bias. The second allegation is that the Department's Counsel in her closing statement said that "When I left the Department of Health I was disciplined and demoted. This statement was not only irrelevant but unethical and wholly inaccurate and evidence to this effect was provided at the review stage" and asserts that the fact that the Chairman did not take issue with the Department's Counsel as to this remark is indicative of a lack of impartiality. In the Extended Reasons given for the refusal of the Appellant's application for review, the Chairman said this in respect of this allegation:
"I cannot remember the Respondent's Counsel stating that the Applicant had been disciplined and demoted and I have made no notes about that. I can say, however, that the Tribunal's decision took no account of the Applicant's disciplinary record, whether good or bad, it simply had no bearing on what the Tribunal had to decided."
In his affidavit the Appellant says that this statement by the Chairman appears to evade the issue. We do not understand why he makes that assertion.[65]In our judgment the objective observer would not consider that a failure by the Chairman (or other members of the Employment Tribunal) to take up this issue with the Department's Counsel would indicate bias. In our judgment this is because it is, and would appear to the objective observer who knew the issues in the case that such a remark was irrelevant and therefore there was no need for the Employment Tribunal to comment on it. As to this we note that there is common ground between the Appellant and the Chairman in their comments and assertions set out in paragraph 64 above when they both (in our judgment correctly) make assertions to the effect that the Appellant's disciplinary record (and therefore the comment relied on by the Appellant) was irrelevant. Further, and in any event, in our judgment a Chairman (or other members of an Employment Tribunal) have no duty to take issue with Counsel in respect of all remarks made by him or her which a party would, or might, find offensive.[66]As mentioned above we have dealt with this aspect of the Appellant's claim for apparent bias on the basis that the Department's Counsel did make a comment in her closing statement to the effect alleged. As to that the Department's Counsel told us that she has no recollection of making such a comment. However, she did refer us to a letter dated 23 January 1997 written to the Appellant by a P. Allen at the Department of Health which contains the following paragraph:
"I have concluded that cumulatively the proven charges amount to serious misconduct. Whilst they are not so serious as to warrant your dismissal, your behaviour has, however, demonstrated that you are quite unfit to occupy a post at your current level. Having considered the range of penalties available under paragraph 8 of Chapter 14 of the Conditions of Service Manual, I have decided that you should be demoted and that you should be placed on the maximum of integrated payscale (IP) 2 standard. Your basic annual salary will be reduced from £21,312 to £18,500 with effect from the date of this letter. You will be barred from applying for posts at pay levels above this reduced level for a period of three years from the date of this letter."
This letter was in the bundle before the Employment Tribunal and it follows that if the Department's Counsel did assert in her closing statement that the Appellant had been disciplined and demoted, there was evidence before the Employment Tribunal to support that statement.[67]As appears above we have not attempted to make any finding of fact as to whether or not Counsel made the statement alleged. Further we have not had regard to the assertion made by the Chairman as to the relevance of the Appellant's disciplinary record in refusing the application for review set out in paragraph 64 hereof albeit that in our judgment that record was irrelevant to the issues the Employment Tribunal and we see no reason to doubt the accuracy of that statement (see the Locabail case at [2000] 1 AER 75 e/g where the Court of Appeal is dealing with the different issue of the knowledge of a judge and its impact on his decision).[68]The other matter relied on by the Appellant to support his allegation that there was apparent bias is that he asserts that, when he raised the question of the documents that were listed in the index but were not included in the bundle (i.e. the documents that would have been at pages 109 to 109b and 110) and the Department's Counsel alleged that the documents were privileged, the Chairman's response was that "if we are to discuss whether the missing documents are privileged or not, it will take the whole day". The Appellant asserts that he considered that remark to be intimidatory and partial. He raised the point again in his application for a review and has asserted that he finds the Chairman's response in paragraph 3.1 of the Extended Reasons for refusing that application for review astonishing. Paragraph 3.1 of those Extended Reasons is in the following terms:
"I did not 'brush aside' the Applicant's complaint that the Respondent withheld documents. The Tribunal listened to the arguments on both sides and decided not to order that the documents in question be disclosed because such documents would not have been relevant to the issues to be decided in the case."
[69]We agree that this response by the Chairman is odd because it is common ground before us that the issue raised in respect of the documents was that they were privileged and the question of relevance was not gone into. Indeed, a general underlying assumption to a claim for privilege is that the documents are relevant in the sense that they relate to the subject matter of the litigation.[70]It therefore seems to us that in giving these reasons the Chairman has made an error in that she forgot that the focus of the basis of the objection to production was one based on privilege rather than relevance. However, and having noted that error, it seems to us that it would be natural for the members of an Employment Tribunal when considering an assertion of privilege and thus, for example, whether they should investigate it in any depth, to consider whether they are of the view having regard to their description the documents would be likely to assist them in the resolution of the dispute. Here given the issues before the Employment Tribunal we can well understand that they would not have thought that the documents would be likely to be of any assistance. We make this comment without regard to the content of the documents which we have considered earlier.[71]We repeat that we have considered this allegation of apparent bias on the basis that the Chairman made a remark in the terms, or to the effect, alleged by the Appellant in his affidavit. That is a remark which indicated to the Appellant that the Employment Tribunal did not wish to become involved, and were not really prepared to become involved, in any detailed argument over privilege. This would have been made at an early stage of the proceedings.[72]In our judgment an objective observer knowing the issues in the case would not have concluded that such a remark indicated bias or apparent bias. Rather it seems to us that an objective observer would have treated it as a remark made by a Chairman who wished to get on with hearing the substance of the dispute and not to spend time on preliminary issues raising points of law relating to privilege. It was also the case that if at a later stage during the hearing it had appeared that the question of disclosure of the documents, and thus of privilege, should be revisited this could have been done and it seems to us that an objective observer would have appreciated this when such a remark was made by the Chairman.[73]In our judgment it is also relevant when considering the Appellant's allegation of apparent bias to remember and take have regard to the fact that he relies on(a) remarks of the Chairman at, or close to, the beginning of the hearing, and(b) a comment by Counsel at, or close to the end, of the hearing, but does not raise points relating to the conduct of the hearing when evidence was being given and he was making submissions. In our judgment this supports our conclusion that an objective observer at the hearing before the Employment Tribunal would not have concluded that there was any bias or apparent bias.