MR B HASSAN v SOUTH WEST LONDON & ST GEORGE'S MENTAL HEALTH NHS TRUST [2001] UKEAT 781_01_2011

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 781_01_2011

Case No Appeal No. EAT/781/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR B HASSANAPPELLANT

SOUTH WEST LONDON & ST GEORGE'S MENTAL HEALTH NHS TRUSTRESPONDENT

Before

His Honour Judge D M Levy

Date 20 November 2001

[1]APPEARANCES MR IKE EHIRIBE (of Counsel) Instructed by: Ratna & Co Solicitors 169A High Street North East Ham London E6 1JB JUDGE D M LEVY QC This is the ex parte hearing of the appeal by Mr Babatunde Hassan, ("the Appellant") against a Decision of an Employment Tribunal sitting at London South, on 18 April 2001. The Employment Tribunal decided unanimously that the Respondent unlawfully deducted the sum of £150 from the Appellant's wages in June 2000, which the Respondent was ordered to pay, and all other claims were dismissed.

[2]The appeal raises two issues. The first is that:

"1) The Employment Tribunal erred in law and on the facts of this case when they failed or refused to hold that there had been a breach of Regulations 5(1) and 5(2)(a) of the Transfer of Undertakings (Protection of Employment) Regulations 1981 ……….. by reason of the Respondent's failure, neglect or refusal to pay the Appellant, the agreed rates of pay for night allowance and unsocial hours etc, contrary to the recent EAT decision of Unicorn Consultancy Services Ltd v Westbrook & Ors [2000] IRLR 80."

In respect of that it is quite apparent to us, having read the Extended Reasons in detail that the case of Unicorn Consultancy Services Ltd did not help the Appellant. The facts are clearly set out; there are proper inferences and findings made on those facts and this ground of appeal is quite hopeless, and we cannot allow it to go further.

[3]The second ground of appeal is this:

"2) The Employment Tribunal erred in law, and on the facts of this case, when they failed or refused to hold further or in the alternative that there had been unlawful deduction of wages, contrary to Section 13 of the E.R.A. 1996 in respect of night allowance and unsocial hours and contrary to the case of Rigby - Ferodo Ltd [1988] ICR 29."

[4]The third is that: "3) The Employment Tribunal misdirected themselves and thereby came to a perverse decision when they chose to ignore or disregard the fact that the Appellant had been paid unsocial hours allowances" in various months, and there had been another unlawful deduction in a further month.

[5]The fourth is:

"4) The Employment Tribunal misdirected themselves and thereby came to a perverse decision when they chose to ignore or disregard the fact that the Appellant's complaints of unlawful deductions and the failure to pay Night and Unsocial hours allowances was part and parcel of the subject - matter of a Grievance Hearing held on the 24/05/00 against the Respondents for which the Respondents apologised to the Appellant in particular."

[6]Like the first of the grounds in the appeal, these are all matters which were obviously in dispute before the Employment Tribunal; they are matters where the facts are set out in the careful Extended Reasons; the findings which the Employment Tribunal made are findings of fact which led to their Decision against which the Appellant really wants to have a second bite at the cherry. None of these grounds are, in our judgment, sustainable.

[7]The fifth ground of appeal is this:

"5) The entire proceedings before the Employment Tribunal South sitting at Croydon should be set aside in that there has been a breach of the Appellant's right to a Fair Hearing, contrary to Article 6 of the ECHR, as enshrined in the Human Rights Act 1998. The representative of the Respondents in this case was a former Lay member of the Employment Tribunal who sat regularly at Croydon up until 28/12/00 when it is said, he resigned. Accordingly, he ought to have disqualified himself from representing the Respondents at the Croydon Tribunal, alternatively his continued appearance on behalf of the Respondents before the Employment Tribunal is sufficient to impugn the entire proceedings in that there is a real or possible likelihood of bias against the Appellant."

This ground of appeal is one which we felt required examination in some detail. The facts are these: after the IT1 and the IT3 had been lodged, the matter came before a Tribunal on a date which is not apparent from page 10 of our bundle when it is said that Mr Ike of Counsel represented the Applicant and Mr D Davies, Human Resources, was a consultant for the Respondent. Page 9 of the Chairman's Notes suggests the date was 4 January 2001. Then a Tribunal composed of the Chairman and two members, Mr Meeran and Mr Warren dealt with the matter. It was made known to the parties that Mr Davies, who was appearing for the Respondent, had indeed been a member of an Employment Tribunal, and had sat on a Tribunal in the London South area.

[8]In those circumstances, the learned Chairman made an Order that the hearing be postponed to 18 April 2001, ordered that the Respondents pay the Applicant costs in the sum of £250, and the hearing on 18 April should be before any fully constituted Tribunal, excluding the Chairman, Mr Meeran and Mr Warren. Clearly it had been made known to the parties that Mr Davies' past involvement with the Employment Tribunal and Mr Ike of Counsel, who was there mentioned, is Mr Ike Eheribe, who appeared before the Tribunal which did hear the case, on 18 April - he is there referred to as "Mr I Ehiribe".

[9]On that occasion, Mr Davies was appearing for the Respondent. Mr Davies' position as a former member of the Employment Tribunal was clearly made known to Mr Ehiribe and his client, at the abortive hearing on the previous occasion,. There was no application by Mr Ehiribe to ask any questions of the Chairman or the members as to their association with Mr Davies, which could have properly been made, and in those circumstances, we considered whether there are grounds for suggesting, as the authorities suggest we should, whether a bystander present would have felt that there was bias.

[10]Our attention was drawn by Mr Ehiribe to two authorities and one article. The article is an article in the case reports in the IDS Brief 686 of June 2001, which refers to the Human Rights Act and makes reference to a decision in(1) Scanfuture Ltd

(2) Link v Secretary of State for Trade and Industry which was heard in the EAT on 23 March of this year, under the reference 1353/99. In the body of that article it is stated in the left hand column of page 11:

"EAT confirmed, on the basis of existing case law, that the standard by which 'independence' and 'impartiality' should be judged was that of the reasonable bystander or fully informed observer. Therefore, the question to be posed was whether a fully informed observer would have feared that the tribunal lacked impartiality and independence. EAT added that when courts applied this test the observer should be regarded as having knowledge of such information as was in the public domain and could have been acquired by members of the public."

[11]Mr Ehiribe also drew our attention to the decision of the Employment Tribunal in Facey v Midas Retail Security Ltd and another

[2001] ICR 287

where a panel headed by Mr Justice Lindsay, now the President, gave advice as to what should happen when the Appeal Tribunal was faced with a conflict of primary fact, the resolution of which would play a material part in an informed decision as to whether an Employment Tribunal, or any member of it, was biased or prejudiced. We did not feel that this decision gave us any help with deciding the case which comes before us.

[12]The third authority to which we referred was the decision of the Court of Appeal in re Medicaments and Related Classes of Goods (No 2) (CA)

[2001] ICR 564

. There, in a judgment given by the Master of the Rolls, the Court of Appeal, considered how to give effect to

Article 6 of The Convention

of Protection of Human Rights and Fundamental Freedoms and took into account the approach of the European Court of Human Rights in accordance with the Human Rights Act 1998 . As is shown in the headnote:

"The court had first to ascertain all the circumstances which had a bearing on the suggestion that the judge was biased and then ask whether those circumstances would lead a fair-minded and informed observer to conclude there was a real possibility, or a real danger, the two being the same, that the judge was biased; that the material circumstances included any explanation given by the impugned Judge as to his knowledge or appreciation of those circumstances or appreciation of those circumstances and where any such explanation was disputed the reviewing court did not have to rule whether the explanation should be accepted or rejected but rather had to decide whether the fair-minded observer would consider that there was a real danger of bias notwithstanding the explanation advanced; that instead of determining where R's statement was truthful the court should have considered what impression her conduct, including her explanation for it …."

On the facts of the case itself, the Court of Appeal thought that a member or expert should have stood down.

[13]Now the facts of that case were far removed from this. Here, the position of the consultant was well known to the Appellant and in the light of the Order made on the previous occasion, and we assume by the members of the Tribunal, there was every opportunity, if there was any objection to be taken to the members, or enquiries to be made of them, for that to be made by Counsel having the conduct of the case for the Appellant. No such enquiry was made.

[14]In our judgment, it cannot be said that the independent bystander could possibly have thought that there was any bias or that, in such circumstances, if the Appellant's Counsel did not think fit to ask any questions of the Court as to their connection, if any, with the other Counsel appearing on the Application, it is unlikely that he could have held any apprehension of bias. We therefore conclude that a bystander in the Court would have concluded that the hearing was fair and unbiased.

[15]In conclusion we do not consider that there is an arguable point to go forward, to a full hearing and accordingly, we dismiss this appeal at this stage.