MR T BERHE v ERITREAN COMMUNITY IN UK [2001] UKEAT 1144_00_2202

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1144_00_2202Case No Appeal No. EAT/1144/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR T BERHEAPPELLANTERITREAN COMMUNITY IN UKRESPONDENT
Before
MR COMMISSIONER HOWELL QCMR D J HODGKINS CBMR D J JENKINS MBEDate 22 February 2001
[1]APPEARANCES For the Appellant MISS SUSAN DORIS (Of Counsel) Instructed by Ms Anna Barlow Law For All PO Box 230 Brentford TW8 9FL MR COMMISSIONER HOWELL QC In this Appeal which is before us today for Preliminary Hearing Mr Tekle Berhe seeks to have set aside as erroneous in law the decision of the Employment Tribunal sitting at London Central on 20 July 2000 contained in Extended Reasons sent to the parties on 28 July 2000 at pages 4-7 of the Appeal file before us. The proceedings before the Tribunal were for unfair dismissal and for compensation by Mr Berhe against a body known as the Eritrean Community in the United Kingdom, which is a charity providing services to the Eritrean Community and Refugees and Asylum Seekers in Britain, especially London. It obtains funding by way of grant from various trusts and public bodies including the Council of the London Borough of Islington and other similar organisations concerned with public welfare.[2]The circumstances in which Mr Berhe, who was employed with the Respondent as an administrator from 1 July 1992 until 28 February 2000, had his employment terminated were that according to the detailed explanation given in the Respondent's answer dated 17 May 2000 at pages 14-16 the Respondent had experienced something of a funding crisis in late 1999 and early 2000 and had to make cut in several areas. This involved a restructuring and a reorganisation of the staff as a result of which there was a new post created which took over some of Mr Berhe's responsibilities; and there had been no alternative to at any rate some members of staff being made redundant. All staff were considered for redundancies, and the posts chosen to go were those for which there was no funding. One of these unfortunately was the original post occupied by Mr Berhe.[3]The substance of the Tribunal's decision, which was that Mr Berhe had been fairly dismissed by reason of redundancy, is not challenged in this Appeal which is brought before us by the Notice of Appeal lodged on his behalf dated 8 September 2000. The only grounds put forward in that Notice of Appeal for challenging the decision of the Tribunal are grounds of a procedural nature embodying an attack on the conduct of the Chairman in two respects which it is alleged gave the appearance of what is referred to a "bias in the conduct of the proceedings". Miss Doris (who was not involved in the proceedings below) has helpfully appeared on behalf of Mr Berhe before us, and focussed the three stated grounds in the Notice of Appeal into two substantive points. The first of them is a combination of the original grounds in6.1 and6.2 in the Notice of Appeal as follows:
"6.1 The tribunal chairman gave the appearance of bias during the hearing in that, prior to the presentation of the Appellant's evidence, she made a telephone call apparently to the listings office informing them that she would be available for a further hearing in twenty to thirty minutes. 6.2 This telephone call was made without discussion with the lay members or the parties to the hearing."
And then the second point is embodied in 6.3:
"6.3 The tribunal erred in failing to give proper consideration to the papers presented in that the papers were only available fifteen minutes before the heating; the chairman stated that she did not consider it necessary to make reference to the bundles as matters were well documented, yet the tribunal adjourned for only five minutes before reaching a decision."
[4]As further explained and amplified to us by Miss Doris with the aid of a skeleton argument these points resolve into two complaints about the conduct of the hearing, which she submits would have given a reasonably objective and intelligent observer the impression that the Chairman was behaving towards the Applicant with a closed mind so that he failed to receive a proper hearing of his case. It is necessary also to explain that the presentation of the Appellant's evidence in this particular case came after the conclusion of the Respondent's case, since in the circumstances of this particular Tribunal hearing the Respondents gave their evidence and presented their case first, and then the Appellant followed.[5]The remark about the documents, Miss Doris informed us on instructions, came during the final submissions being made by Counsel who was then appearing on behalf of Mr Berhe and arose out of the fact that a bundle of documents had been produced by the Respondents, to some of which they referred during the course of their evidence at the hearing itself. Mr Berhe's Counsel, although not having made any application for an adjournment at the outset or during the course of the proceedings for time to consider documents further, had submitted during her closing submissions that it would be appropriate for further time to be taken by the Tribunal and the parties to go through the entire bundle of documents. The response from the Chairman was that it was not necessary for the purposes of the Tribunal's deliberation for them to make reference to the bundles, as the matters in issue had been "well documented", that being the phrase that on instructions Miss Doris said had been used.[6]Her submission on behalf of Mr Berhe was therefore that in having made these two remarks the Chairman had exhibited a closed mind. In accordance with the normal practice when an allegation of apparent bias is made in a Notice of Appeal, the Registrar of the Employment Appeal Tribunal has requested any observations the Chairman wishes to make on the allegation and those have been obtained in the form of a letter from the Chairman of this particular Tribunal dated 22 November 2000. She gives details of what took place in the course of the hearing and records her own recollection that the telephone call to the listing officer estimating the remaining length of the hearing had not been (as she understood the allegation to be) at the beginning of the case itself, but she accepted that a call might well have been made at some later stage: she thought at the stage when the evidence had been completed. In her words:
"It may well be that at this stage I would have telephoned the listing clerk to inform him that I anticipated completing the case in a short while and would be available to take any floaters that would be around."
[7]She also records the actual length of the hearing according to her notes which indicate that the case had commenced at 10 am, when they had heard the evidence of a Dr Hailu Embaye on behalf of the Respondents. He gave his evidence by way of witness statement and referred to various pages of the documents. There had been cross examination of him but that was brief. There had then been further evidence from another witness on behalf of the Respondents again with brief cross examination and then as she recorded:
"The Tribunal had commenced hearing the Applicant's evidence at 11.30 am."
That is one and a half hours after the proceedings had commenced; and then she recorded:
"The Applicant gave evidence from a witness statement and at 11.40 am he gave further evidence in chief. At 11.44 am he was cross- examined and there was no re-examination. The evidence terminated therefore."
[8]After submissions the Tribunal had retired at about 11.50 am; and the Tribunal Chairman has no note on her file how long the matter was considered, although her recollection was that another case had been taken after the luncheon adjournment so that the decision would have been announced some time in the late morning. She also records:
"I note from the evidence that we were referred many times to pages in the bundle of documents and at each referral we would have looked at the documents. Due consideration was given to the documents that were before us and that is clear from the decision."
And we confirm, though it is not necessary to set out the passages from the decision itself, that the statement of extended reasons does indeed refer on specific points in the evidence to various documents to which reference had obviously been made in the course of the hearing.[9]We have not been satisfied despite Miss Doris' arguments that there is any arguable ground for saying that a reasonable person would have understood the making by the Tribunal Chairman of an estimate of the remaining length of hearing, in the terms apparently done here, as in any way prejudicial or as otherwise than an entirely neutral remark, to assist the proper administrative arrangements of the Tribunal itself. Miss Doris emphasised that Mr Berhe's recollection was that this remark had been made not after the conclusion of all the evidence, but at the point when the Respondents' case had been completed and he himself was about to start giving his evidence at 11.30 am. Mr Berhe's feeling, and Miss Doris' submission, was that the giving of any such estimate at that juncture of the proceedings and in the hearing of the parties demonstrated a closed mind on the part of the Chairman.[10]The same allegation is not specifically made against either of the two other members of the Tribunal sitting with the Chairman: this was a tribunal of three, and that was a point that was not addressed in the submissions to us at all. But even taking the position of the Chairman alone we cannot for our part see that any reasonable person would have understood that remark as indicating bias or a closed mind against either party, in respect of the evidence then in the course being given or about to be given. It seems to us that that was no more than a genuine attempt on the part of the Chairman to estimate in a practical way the remaining length of the hearing. On the timings in her letter of 22 November 2000 it appears to have been an accurate one, and there was no question, as Miss Doris very properly conceded, of Mr Berhe having been restricted in the evidence he wanted to give or in any way having been inconvenienced by the time estimate having been given.[11]As regards the point about the documents it is not disputed that a bundle of documents, some or all of which referred to matters already canvassed in some detail in the Originating Application and the Respondents' answer, was produced at a fairly late stage before the proceedings began. However we think it is apparent from the Chairman's response and the references in the statement of extended reasons itself that any specific documents which had any bearing on the actual evidence and submissions in the case were considered in the course of the proceedings themselves, being referred to in the normal way in the context of the evidence as it was being given: in particular that of Dr Embaye to whom reference is made. In those circumstances we cannot see it is arguable that the Appellant and his Counsel were deprived of an adequate opportunity of making any submissions on those documents that could be made on his behalf. The Applicant's own evidence, of course came after the point at which the individual documents had been introduced and referred to in the Respondents' evidence, because of the order of events in these proceedings. Since Mr Berhe was represented by Counsel we also take account of the fact that no application for further time to consider documents was made in the course of the hearing itself.[12]The remark made by the Chairman in the course of submissions, when the point about further time to consider documents was made, appears to us also to be a perfectly proper remark to indicate that the Tribunal would be giving their consideration to the issues raised in the documents which had been referred to in the evidence, but would not need to refer to other documents included in the bundle but not referred to by either party in the course of the hearing. Miss Doris submitted that what should have been done was that the Tribunal itself should have gone through all the documents, even though neither party had drawn their attention to any more than those referred to at the hearing, but in our view that is quite unarguable. Nor is it arguable that the procedure adopted in relation to the documents, or the Chairman's indication that that was the way they were going to be dealt with, demonstrate a "closed mind" on the part of the Chairman or the other members of the Tribunal.[13]Because this Appeal has been sought to be brought forward based on allegations of "bias" against the Chairman and the Chairman has been put to the trouble of answering such allegations in accordance with the normal practice in appeals where allegations of that nature are made, we would add this. Our understanding is that appeals based on allegations of so- called "bias" on the part of the Chairman or the Tribunal in the conduct of proceedings are being received at the Appeal Tribunal in increased numbers, in particular from appellants acting in person or through non-legally qualified representatives: and we think it well to emphasise one or two points even though for professionally qualified people they may be thought obvious and scarcely to need stating.[14]Bias, in the relevant legal sense considered by the House of Lords in R v Gough [1993] AC 646 for the purpose of determining whether there has been a breach of natural justice in the case, means partiality, from some personal connection with one party or the other, prejudicial knowledge or some other personal reason that inhibits the individual involved from bringing an independent and objective mind to bear on the issues in the case. No such allegation is made here, of what may be called bias in the strict sense. Absent such factors, the principal question on an issue of natural justice in the conduct of proceedings is likely to be whether the parties can be fairly seen to have received a fair, just and even-handed consideration from the Tribunal of all relevant material and submissions the parties wish to put forward on the issues in the case, before the Tribunal reaches its decision.[15]It is not in our judgment arguable that either bias or a lack of even-handedness is shown merely by a Tribunal adopting a probing attitude towards a shaky case, refusing to allow time to be taken up in irrelevant evidence or submissions or the consideration of irrelevant documents, or criticising and if necessary curbing unreasonable behaviour by a party or by his or her representative in the conduct of the proceedings. Those are, in our judgment, simply examples of the Tribunal or the Chairman doing their job. They give rise to no arguable error of law, even if the Appellant does not like the result: any more than it gives rise to an arguable error of law if the Tribunal's decision goes against him or her on some disputed issue of fact.[16]Still less, in our judgment, is it arguable that any error of law could arise from a Chairman being overheard as in this case to give a perfectly reasonable and responsible time estimate to Tribunal officials about the remaining length of the hearing, so that sensible administrative arrangements could be made for the hearing of the next case. Those suggested grounds of appeal, as well as the ground based on the observation about the documents, appear to us quite frankly to be trivial grounds to bring before this Tribunal by way of an attempted appeal. We have no hesitation in concluding that there are no substantially arguable grounds that have been disclosed here, in the Notice of Appeal or in Miss Doris' very well argued submissions, to warrant allowing these proceedings to go further, and we therefore now unanimously dismiss this Appeal.