MR A ALI v GLAXO WELLCOME PLC [2001] UKEAT 81_01_2105

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 81_01_2105Case No Appeal No. EAT/81/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A ALIAPPELLANTGLAXO WELLCOME PLCRESPONDENT
Before
Mr Justice Charles Ms J Drake Ms H PitcherDate 21 May 2001
[1]APPEARANCES For the Appellant MR STUART BRITTENDEN (of Counsel) Instructed By: Messrs Bolt Burdon Solicitors 16 Theberton Street Islington London N1 0QX MR JUSTICE CHARLES : We have before us today a preliminary hearing of an appeal. Our task is to decide whether or not the appeal raises points of law that are reasonably arguable.[2]The Appellant is a Mr Ali and the Respondent to the appeal (and the Respondent before the proceedings in the Employment Tribunal) is the well known company, Glaxo Wellcome Plc.[3]The appeal is against a decision of an Employment Tribunal sitting at London (Central). They sat on 4 October 2000 and the Extended Reasons were sent to the parties on 22 November 2000; that decision related to remedy. The same Employment Tribunal had earlier found on liability in favour of Mr Ali; that decision had been sent to the parties on 22 June 1999. The decision was that the Respondent company had discriminated against the Applicant on racial grounds.[4]There was an appeal against that decision by the Applicant which is referred to in paragraph 3 of the Extended Reasons for the remedy decision and is in the following terms:
"The Applicant appealed on three grounds against the decision of the Tribunal, and the Respondent appealed on a single (different) ground. At Preliminary Hearings held on 3 April 2000 the Employment Appeal Tribunal found that there was no reasonably arguable point of law in any of the Applicant's grounds of appeal or in the Respondent's appeal."
Hence the return for a decision on remedy.[5]The Notice of Appeal is dated 24 December 2000. It put forward a number of grounds including grounds of bias and perversity. That Notice of Appeal was supported by an affidavit on which the Chairman of the Tribunal, Professor Neal, has given his comments.[6]Today the Appellant has appeared before us through Counsel, a Mr Brittenden, who prior to the hearing helpfully provided us with a skeleton argument and new grounds of appeal. The stance taken by the Appellant today, through Counsel, is to abandon the original grounds of appeal and to seek to substitute them with the new grounds. For the avoidance of doubt we do not give permission for any of the old grounds to go forward and record that they have been withdrawn.[7]The Appellant seeks today leave to amend the Notice of Appeal to add two grounds which are as follows:
"(1) that the Tribunal erred in law in respect of the compensatory element of the award for race discrimination for breach of section 1(1) of the Race Relations Act 1976 pursuant to section 56(1)(b) in failing to provide sufficient reasons for its decision; (2) that the proceedings were vitiated by procedural irregularities on the part of the Chairman, Professor Neal, in particular that he failed to declare a possible conflict of interest, which gave rise to a real danger or possibility of bias."
[8]The grounds relied on in respect of that second ground are not the same as in the original Notice of Appeal or affidavit and therefore they have not been commented on by the Chairman. They raise an allegation of apparent bias. I shall return to that ground in a moment.[9]As to the first ground, it is a ground based on the well known decision in Meek v City of Birmingham District Council [1987] IRLR 250 . Of course, that decision has been commented on in a number of other cases, for example, in the High Table v Horst [1997] IRLR 513 , where this Tribunal is reminded that in applying it one must have regard to the issue that are before the Employment Tribunal.[10]The quantification of damages under that head of loss of opportunity is a difficult one and not a scientific operation. However, we accept that it is reasonably arguable that the Extended Reasons do not contain sufficient reasons to indicate to the parties why they won or lost and further, or alternatively, the other ground in Meek to indicate to this Tribunal whether or not an error of law has been made.[11]We will give permission for the appeal to proceed on that ground. We will give leave to amend the Notice of Appeal to include that ground. The amended notice of appeal is to be issued within seven days. As the Respondent to the Appeal is not present, we expressly give them permission to apply to vary or discharge that grant of leave. On any such application (if it be made) the issue as to the extent to which that ground is already included in the existing grounds, which have been abandoned, can be examined should it arise.[12]We would not encourage the Respondent to make any such application by way of a preliminary hearing. If they wish to make it they can make it at the full hearing of the appeal and should do so on notice to Mr Ali and those who represent him.[13]We turn now to the second ground which I shall refer to as "the ground on procedural irregularity and apparent bias". This hearing took place after the date upon which the Human Rights Act became part of our law. The Court of Appeal have recently, in a decision called In re Medicaments and Related classes of Goods (No 2) [2001] 1 WLR 700 , gone through the existing law on apparent bias. In particular and unsurprisingly, they had regard to the decisions of the House of Lords in R v Gough [1993] AC 646 and the decision of the Court of Appeal in Locabail UK Ltd v Bayfield Properties Ltd [2000] 1 AER 65 and they reached their conclusions in paragraphs 84 to 86 of the judgment. The debate that was dealt with earlier in the judgment relates to the issue whether the court should place itself in the shoes of the objective observer and make the decision, or whether the approach is for the Court to ask the question what a fair minded and informed observer would conclude, which is the test applied by the Strasbourg Court. In paragraph 85 the Court of Appeal say this:
"85 When the Strasbourg jurisprudence is taken into account, we believe that a modest adjustment of the test in Gough is called for, which makes it plain that it is in effect no different from the test applied in most of the Commonwealth and in Scotland. The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair minded and informed observer to conclude that there was a real possibility, or real danger, the two being the same, that the Tribunal was biased."
[14]Here the material now relied on by Mr Ali, which flows from information provided by the Chairman of the Tribunal in response to the original allegations of procedural impropriety and alleged bias, concerns the connection between Leicester University who did employ, and perhaps still do employ, Professor Neal and the Respondent company and, in particular, the honour that that University paid to the chief executive of the Respondent company (Sir Richard Sykes) in July 1999.[15]Assuming for present purposes all the matters asserted on behalf of Mr Ali in the skeleton argument, which do not include an assertion that Professor Neal was a member of a department who worked closely with the Respondent company (and indeed that is not something one would have expected him to have done) and therefore assuming that he did take an active role in the honour paid to Sir Richard Sykes and, for example, in connection therewith met and had discussions with him, we confess that our preliminary view, as explained to the parties, was that that would not provide a reasonably arguable case which would pass the test set out in the In re Medicaments case.[16]We also raised with Counsel for Mr Ali where success on an application of apparent bias was going to take him and in this respect we raised the question how a successful application based on apparent bias would effect the Liability Decision. After this exchange between this Tribunal and Counsel, we rose so that Counsel could discuss the position with his client. On his return (and we would say very sensibly) Counsel indicated that Mr Ali no longer wishes to pursue the second ground of appeal. We would repeat our preliminary view that that ground did not raise a point that was reasonably arguable. As to that we have not had full submissions from Counsel but we believe he would have had a very uphill task in persuading us that there was a reasonably argue point on apparent bias.[17]We will therefore give permission for this appeal to proceed on only the first ground in the amended notice of appeal which is the Meek ground relating to the £3,000 award. For the avoidance of doubt we record that we do not give permission for the second ground advanced therein to proceed and that it was withdrawn..[18]We give this case Category C and a time estimate of half a day.