MR A T ATTRILL (DECEASED) v WIGHTLINK LTD [2001] UKEAT 1003_01_2410

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1003_01_2410Case No Appeal No. EAT/1003/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A T ATTRILL (DECEASED)APPELLANTWIGHTLINK LTDRESPONDENT
Before
Mr Justice Wall Miss A MackieDate 24 October 2001
[1]APPEARANCES For the Appellant MR TIM DRACASS (Of Counsel) Instructed by Messrs Jerome & Co Solicitors 98 High Street Newport Isle of Wight PD30 1BD MR JUSTICE WALL This is a highly unusual appeal which comes before us by way of Preliminary Hearing. It is an appeal by Mr Thomas Arthur Attrill. Mr. Attrill is now deceased, and the proceedings are being carried on by his widow. The appeal relates to an order made on a pre hearing review by the Chairman of the Employment Tribunal sitting at Southampton on 12 July 2001. The Order was in two parts. Firstly, by paragraph 1 is ordered that the Applicant, (in fact, of course, Mrs Attrill) shall pay within 21 days, beginning with the date upon which a copy of the Order was sent to the parties, a deposit of £10 as a condition of being permitted to continue to take part in the proceedings. Paragraph 2 of the order provides that, the Applicant's application to amend the Originating Application is refused.[2]For reasons which will appear, we are proposing to allow paragraph 1 to go through for full argument before the Employment Appeal Tribunal, but we propose to dismiss the appeal in related to paragraph 2.[3]We said it was a very unusual appeal. We propose to set out only the basis facts and give only as much detail as is necessary to explain our reasons. In essence the short background is that Mr Attrill issued a form IT1 which is undated but appears to have been issued sometime in October 2000 alleging unfair dismissal. The grounds of oppositions submitted by the Respondent alleged that Mr Attrill was employed as a terminal control officer until he was summarily dismissed on 25 July 2000. The Respondent's case is that Mr Attrill was in breach of an implied term in his contract to act at all times in good faith. The underlying facts behind that allegation were that the Respondent says it discovered widespread internal fraud involving the use of fraudulent tickets, and that an internal investigation exposed a number of activities contravening the criminal law. The Respondent believed that Mr Attrill was implicated. There a disciplinary hearing. The Respondent came to the conclusion that Mr. Attrill was in breach of contract as indicated and dismissed him on 26 July 2000. The argument accordingly is about whether or not that the dismissal was unfair.[5]Sadly, Mr Attrill committed suicide in April 2001 and that is why the proceedings are being carried on by Mrs Attrill. In essence, the case put forward on Mr Attrill's behalf is two-fold. Firstly, that he was unwell and had suffered considerable ill health at the material time .Secondly, he was in fact the whistle blower who had discovered or had become aware of the scam and had infiltrated himself into it in order to expose it to his employers. In the chronology with which we have been helpfully provided by Mr Dracass, this is said to have happened on his return to work from a serious operation in February 2000. The whistle blowing took place between February and March. Mr Attrill was interviewed by the Police in April and May and there is indeed a statement in our papers recently produced for us in which a Police Officer indicates though as far as the Police were concerned Mr Attrill was an innocent party and had also suffered substantial ill health and stress.[6]The pre-hearing of review of Mr Attrill's case was as I indicated taken by the Chairman in Southampton. He happened to be the Chairman who had presided over a hearing in which other employees of the Respondent had alleged unfair dismissal. Some of those cases had been settled, but one, the case brought by a Mr Davies, had gone the full length and had resulted in the dismissal by the Tribunal of Mr Davies'complaint of unfair dismissal. Mr Davies' complaint arose out of the same factual substratum as the case of Mr. Attrill.[7]We were this morning provided with the transcript of the reasons given by the Tribunal for dismissing Mr Davies' case. Objection was taken by Mr Dracass who appears for Mrs Attrill to the Chairman taking Mrs Attrill's case at the directions hearing. That application was considered by the Chairman and rejected. We should perhaps say in fairness to the Chairman that we see no justification for the allegation made in Mrs Attrill's affidavit as to misbehaviour by the Chairman. We are satisfied that there was no actual bias, and that the Chairman was doing his best. But, it is reasonably clear to us from the authorities put before us this morning by Mr Dracass that the Chairman misdirected himself as to the law in relation to potential bias.[8]The question the Chairman asked himself was whether or not he was in fact unable to deal with the case before him on the basis that he might be biased because of his knowledge in the Davies' case. He says that he considered carefully whether his knowledge of the background and the considerable amount of material with which he had previously to deal would be likely to render him unable judicially to deal with Mrs Attrill's case. He came to the conclusion that he was not so biased and proceeded.[9]It is however reasonably clear from the authorities that the proper test which should be applied is whether or not a reasonably objective person would perceive bias even if it did not actually exist; and by that standard it seems to us with respect to him that the Chairman may have misdirected himself - alternatively it is certainly arguable that he did and that is sufficient of course at this point to allow that aspect of the case to go forward to a full hearing. So on the appearance of bias we take the view that Mrs Attrill has an arguable case on the basis that the Chairman misdirected himself in law and as I say we allow it to go forward.[10]The second point is that the Chairman refused an application by Mr Dracass to amend the Originating Application. It seems to us in relation to the allegation of unfair dismissal that there is nothing to prevent Mrs Attrill on the present case as set out in the IT1 arguing that the dismissal was unfair on the basis of the facts which we have already outlined mainly that Mr Attrill was a whistle blower, operated with the employer and it was unfair to dismiss him since there was no dishonourable conduct on his part.[11]At the hearing before the Chairman Mr Dracass sought to amend the originating summons to add a claim under the Disability Discrimination Act 1995 on the basis that Mr Attrill had undoubtedly been seriously ill and that he was unfairly dismissed on the basis of disability because he was not treated fairly or equitably in relation to others. Some colour for that is found in the concluding paragraphs of the judgment of the Tribunal dealing with Mr Davies' case ,and the manner in which others were treated.[10]The Chairman dealt with their aspect of the case in this way:
"The Respondent opposed that application and referred me to the considerations be taken into account and referred to Selkent Bus Co v Moore [1996] IRLR 667. I have taken account of the fact that although Mr Attrill (and later Mrs Attrill) were advised by experienced solicitors throughout, no explanation for the delay in making these complaints has been given. Furthermore, there is likely to be considerable prejudice and hardship to the Respondent in that memories will have faded and their principal witness is no longer in their employment. Neither claim was foreshadowed in the Originating Application: they are completely new matters, and I do not consider that it is appropriate they should be dealt with by way of amendment to the Originating Application. If the Applicant wishes to proceed with them, she should issue a fresh Originating Application when matters of time can be considered."
The first point we need to make is that the fact that we are allowing this appeal to go forward on the basis of appearance of bias does not automatically mean that each and every order made by the Tribunal is necessarily defective. If the Tribunal notwithstanding the allegation of apparent bias goes on to make an order which is immaculately correct in law we do not think that it automatically follows that that order should be set aside or indeed be the subject of an appeal.[11]Secondly, leaving aside for one moment the question of unfair dismissal on the basis as I have indicated earlier we see no error of law in paragraph 9 of the Chairman's reasoning. Indeed, it seems to us he has followed the law (in particular Selkent) appropriately and has taken into account precisely those factors which need to be taken into account. It is highly unusual, in any circumstances, for an amendment to be allowed this length of time after the originating summons has been issued even given the unusual circumstances of this particular case.[12]We also think that no injustice will be done to Mrs Attrill from a refusal of permission to amend, since the factual case which she will undoubtedly be presenting to the Tribunal in relation to unfair dismissal will of course include the fact that it was unfair for her husband to have been dismissed in the light both of the information he had given to the Respondent and of his ill health.[13]We do not therefore think it is necessary in the interest of justice to allow this amendment ; and as the Chairman in our view has committed no error of law in the second part of the order which he made in these proceedings, the appeal in relation to paragraph 2 of his order will be dismissed and the appeal will be permitted to proceed on paragraph 1.