MR M ZAMAN v 1) QINETIQ (FORMERLY DEFENCE EVALUATION RESEARCH AGENCY) (CDA SECTION) [2003] UKEAT 0440_02_2102

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0440_02_2102Case No Appeal No. EAT/0440/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR M ZAMANAPPELLANT1) QINETIQ (FORMERLY DEFENCE EVALUATION RESEARCH AGENCY) (CDA SECTION)RESPONDENT
Before
His Honour Judge J McMullenDate 21 February 2003
[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON JUDGE McMULLEN QC This is an appeal by the Applicant against the decision of an Employment Tribunal sitting at Southampton over fifteen days and six days in Chambers in 2001-2002 promulgated as a reserved decision on 12 March 2002. The Applicant and Respondent were represented by Counsel. We will continue to refer to the parties as Applicant and Respondent.[2]The Applicant applied for a review of the decision which was dismissed by the Chairman pursuant to Rule 13(5) with extended reasons on 29 April 2002. By his Originating Application presented on 5 April 2000 the Applicant claimed discrimination, victimisation and harassment from January 1992 and continuing. The basis of the discrimination was the Applicant's 'non-white background'. The manifestation of this discrimination took the form of the appreciation by the Applicant that his promotion had not been commensurate with his qualifications and his demonstrated ability to deliver; that this has become more acute since 1999 when promotion progression and career development opportunities had been curbed if not actually reversed; and that the above offences had been compounded when internal grievance procedures were involved on a related issue. The Tribunal defined the issues as:(1) that the Applicant's career progression had been faulted because of race discrimination and that he had failed to progress as fast as his white colleagues (recording the submission of his Counsel) [reasons 394].(2) in respect of the Applicant's allocation to the private section of DERA that this constituted a protected act by reason of the lodging of the first Originating Application on 10 July 2000, reliance also being placed upon the lodging of the Originating Application, in that the Respondent knew or suspected that the Applicant intended to make a claim of race discrimination; and the decision to allocate the Applicant to DERA was either an act of direct discrimination or that he was subject to victimisation because he had lodged the first Originating Application or that the Respondent knew or suspected he had. This is again pursuant to his Counsel's submissions: [reasons 487-491].[3]The Tribunal found that the above claims failed for reasons explained in sixty nine pages of extended reasons. The Applicant appeals against that decision on two simple grounds in a Notice of Appeal served on 22 April 2002: that the Tribunal misdirected itself in law in that it 'did not find the necessary primary facts in order to enable it to look at the totality of those facts'. In the absence of essential primary facts the Tribunal cannot show that it has considered the case on 'balance of probabilities', or even whether there were mixed motives including unlawful discrimination'. Secondly that 'there was no evidence to support conclusions or finding of fact or … no reasonable Tribunal could have reached them … The Tribunal took into account something it ought not to have taken into account, and failed to take into account of something which it should have taken account' [Sic].[4]We categorise both of these grounds as perversity. The Applicant provided further particulars of his claim consisting of eleven pages on 11 August 2000 with a further four pages on 10 November 2000 with a request to amend his claim on 11 January 2001. The Respondent entered detailed resistance extending for ten pages. The further Originating Application was submitted alleging victimisation on 29 December 2000. A number of procedural directions were given for the conduct of the hearing. Decisions dated 28 March and 10 April 2001 were the subject of appeals by the Applicant to the Employment Appeal Tribunal which were dismissed by Mr Commissioner Howell QC and Members on 22 May 2001.[5]An appeal by the Respondent against a further Interlocutory Decision was dismissed by Lindsay P on 1 November 2001. The path was therefore cleared for the twenty one day hearing which began on 12 November 2001. The Tribunal considered two Originating Applications. In the first, the Applicant claimed direct racial discrimination, victimisation and harassment. The latter two claims were expressly abandoned at the hearing [reasons para 3]. In his second Originating Application the Applicant complained of victimisation. The first Originating Application was the subject of an order for further particulars and as finally constituted the Applicant's claim alleged direct racial discrimination from 1992 to 2000 in the form of nineteen separate incidents constituting forty allegations, the basis for which was set out in seventy-one factual events. In the second allegation the Applicant contended that on 8 November 2000 he had been transferred to the private sector which constituted victimisation for his earlier claim. In written submissions over thirty pages his Counsel submitted in closing that there had been a continuing act of discrimination since 1995 in that the Applicant had been treated less favourably than white colleagues in the advancement of his career. As she put it:
"Essentially the Respondent's case is that the Applicant's failure to progress is as a result of his lacking 'people competences'. The Applicant states that this is not a sufficient and justified explanation for the treatment. It is for the Tribunal to make findings of fact about this issue and to decide whether they considered that it was the Applicant's race which played a significant part in the way in which the Respondent acted."
[6]It was also submitted by Counsel that the second Originating Application was:
"a claim of victimisation and/or direct discrimination in relation to the Applicant's allocation to the privatised section of DERA - Qinetiq. For the purposes of the victimisation claim the protected act claimed by the Applicant is the lodging of the first IT1 in July 2000."
[7]The Tribunal treated this as a claim of victimisation and direct race discrimination manifested by his transfer to the privatised sector. For the purposes of the discrimination claimed in the second Originating Application the Employment Tribunal was directed to a series of events beginning in 1999 and then for the purposes of the victimisation claim, since the Applicant alleged that his management knew he was about to put forward in the Originating Application, the Tribunal examined events prior to the protected act, that is 10 July 2000.[8]Given the immense reach of the Applicant's claims, the Tribunal directed itself to the correct approach. It cited Anya v University of Oxford [2001] ICR 847 and Qureshi v Victoria University of Manchester [2001] ICR 863 [Note] EAT Mummery P. It also considered King v The Great Britain China Centre [1992] ICR 516 CA. It is important to note that at the outset the Tribunal recorded the common ground between Counsel as to the approach to be taken which was summed up in the following citation from Mummery P:
"Circumstantial evidence presents a serious practical problem for the Tribunal of fact. How can it be kept within reasonable limits? This case has an administration problem. The complaint of racial discrimination is usually sparked by a core concern of the Applicant … Dr Qureshi relied extensively on circumstancial evidence that there was a racial ground to the acts and decisions he complained about. The circumstantial evidence included incidents ranging over a period of nearly six years … The incidents relied on by him antedate a company and postdate the alleged act of racial discrimination and victimisation particularised … It was necessary for the Tribunal to find the facts relating to those incidents. They are facts (evidentiary facts) relied upon as evidence relevant to a crucial fact in issue, namely, whether the acts and decisions complained of in the proceedings were discriminatory 'on a racial ground'."
[9]The function of the Tribunal in relation to that evidence was therefore twofold:
"First, to establish what the facts were on the various incidents … and secondly, whether the Tribunal might legitimately infer from all those facts as well as from all the other circumstances of the case, that there was a racial ground for the discrimination complained of. The temptation for the applicant and his advisers, in these circumstances, is to introduce into the case as many items as possible as material from which the Industrial Tribunal might make an inference that 'racial grounds' are established. The Respondent has to respond to the introduction of those items. … The result of this exercise is that the parties and their advisers may confuse each other (and the Tribunal) as to what the Tribunal really has to decide; as to what is directly relevant to the decision which it has to make and as to what is only marginally relevant or background. It is a legitimate comment that in some cases of race discrimination so much background material of marginal relevance is introduced that focus on the foreground is obscured, even eclipsed. In practical terms this may lead the case to run on and on for many days or weeks. … There is a tendency, however, where many evidentiary incidents or items are introduced, to be carried away by them and to treat each of the allegations, incidents or items as if they were themselves the subject of a complaint. In the present case it was necessary for the Tribunal to find the primary facts about those allegations. It was not, however, necessary for the Tribunal to ask itself, in relation to each such incident or item, whether it was itself explicable on 'racial grounds' or another grounds. That is a misapprehension about the nature and purpose of evidentiary fact. The function of the Tribunal is to find the primary facts from which they will be asked to draw inferences and then for the Tribunal to look at the totality of those facts, (including the Respondent's explanation) in order to see whether it is legitimate to infer that the acts or decisions complained of in the Originating Application were on 'racial grounds'. The fragmented approach adopted by the Tribunal in this case would inevitably have the effect of diminishing any eloquence for accumulative effect of the primary facts might have on the issue of racial grounds. … The process of inference is itself a matter of applying common sense and judgment to the facts, and assessing the probabilities on the issue where the racial grounds were an effective cause of the acts complained of or were not. The assessment of the parties and their witnesses when they give evidence also forms an important part over the process of inference. The Tribunal may find that the force of the primary facts is insufficient to justify an inference of racial grounds. It may find that any inference that it might have made is negatived by a satisfactory explanation from the Respondent of non-racial grounds of action or decision."
[10]Expressly agreed as common ground is the passage from 'The function …' to '… the issue of racial grounds'. That judgment was expressly approved by the Court of Appeal in Anya , but since Anya it has also heard Wheeler and Newton v Durham CC 23 May 2001 where it was said:
"In Anya the Court of Appeal held that an Employment Tribunal must make conclusions on the factual issues essential to its conclusion. It does not follow, however, that an Employment Tribunal has to explore the circumstances of every event in the evidence placed before it. It only has to reach conclusions on the essential issues."
That passage was expressly agreed between Counsel to be applicable. Since then, the Court of Appeal has also held in English v Emery Reimbold Ltd [2002] 3 ALL ER 385 in a judgment expressly held to be applicable to all first instance Tribunals and Judges, that the task facing them is to decide only the vital or critical or essential facts and submissions thereon. The Tribunal made this finding:
"Having considered the evidence as a whole, one can fully understand how various managers and project managers despaired of him and were reluctant to work with him, because he developed a reputation of being difficult, pedantic, unreliable and a non-team player. … His attitude has jeopardised his career. Unfortunately, he appears to have an inflated view of his own capabilities" [reasons 482-486]. In its approach to the overall assessment it said this: "
We have tried as far as possible to resist the temptation to treat each matter as an allegation of race discrimination, and we have looked at the totality of the evidence to see whether it is legitimate to infer that the actual decisions complained of in the Originating Application were on "racial grounds". [reasons 411][11]The Tribunal considered the views of the Applicant's managers who assessed him variously as confrontational, stubborn, persistent, and that these were the views not only of an isolated manager but of a wide range of managers. It assessed the contention that these pointed to a conspiracy on racial grounds of enormous magnitude against the contention that the difficulties faced by the Applicant were due to his personality [reasons 427]. The Tribunal itself assessed him as "un-coperative, evasive and, on occasions, either misleading or downright untruthful" [reasons 432].[12]In giving such a blanket condemnation of the Applicant, it expressly cited reasons which we find to be cogently argued for that assessment eg reasons 435. The Tribunal also noted that he was "unnecessarily coy", even during cross-examination, about his relationship with LRQA which was a private company of which he was a director. [reasons 455-456]. On the other hand it said: "The Respondent's witnesses were honest and credible, obviously doing a difficult job in very difficult circumstances." [reason 484] It backed that judgment up by reference to the documentation and specifically to its own finding of the performance of the Applicant giving evidence before it. Its reasoning includes references to contemporaneous documentation provided by those managers who gave evidence. Thus the Tribunal did not make a blanket assessment of the Applicant on the one hand and the Respondent's witnesses on the other but summarised this judgment of him and them, having given a transparent set of reasons easily exigible by us on appeal. It thus discharged its duty to do precisely that under Anya (above) at paras 24-25 per Sedley LJ for the Court.[13]The Applicant is British Asian, he is well qualified. The Tribunal upheld his contention that he progressed more slowly than his non-white colleagues did in his career, with the Respondent or its predecessor. It therefore required an explanation pursuant to the guidance in King from the Respondent [reasons 407-408]. In his submission to us, the Applicant may have lost sight of this important finding in his favour. In its application of King the Employment Tribunal drew specific attention to the fact that "throughout the whole of this saga, there is very little, if any, reference to race. The Applicant raised it himself only obliquely during the course of his employment" [reasons 467] and not at all at a critical meeting covering all of the Applicant's career as late as 9 August 2000 [reasons 475].[14]We made allowances for his presenting his case unassisted, having had further time on the day to take advice from an ELAAS Representative. The lay members of the Tribunal sat in on the hearing of the Applicant's appeal from the decision of the Registrar so as to gain a better understanding of the Applicant's case and practically a full morning was given to him at the end of which the Applicant assured us he had told us all he needed to say. He has followed this up with a letter seeking directions which he did not have time to make but as will become clear these directions are irrelevant. In the extended time we gave him, the Applicant's submissions were clear and expedient and he has indeed put before us all the arguments contained within his skeleton argument and his notice of appeal. The grounds of appeal[15]We will deal with his first eighteen amended grounds of appeal which are of substantive issues, and then with his application for permission to amend to add a ground based on bias. The Applicant summarised his complaints as being that the Tribunal omitted to make findings of fact, made perverse findings of fact, took into account unrelated issues, with the incentive to the change in evidence being led, and erred in law in its choice of comparators. Ground(1) The Applicant acknowledges that King applies. But he contends that the Tribunal omitted primary findings 'the force of inferences could be considered'. These relate to the context in which there is progression to senior scientific officer and higher scientific officer. In our judgment this ignores the finding in the Applicant's favour which we have cited above from reasons 407 that the Applicant did progress more slowly than his non- white colleagues. Ground(2) The Applicant complained that the Tribunal did not complete his chronology for pay reviews which should have been made in 1996 and 1997. He accepts that the Tribunal need not look at all the issues but contended this was a key issue since at the time working as an SSO and had good reports. But the Tribunal had the views of Mr Davison and Mr Purvis for the Respondent and had to evaluate what was important and what time period was important. Ground(3) It is contended the Tribunal failed to make a finding on a project called Purple Wizard which the Applicant contends is the key trigger incident with events leading to the lodging of his first Originating Application. The Applicant accepted that the assessment of a key trigger incident is an evaluation of the circumstances and the Tribunal did not err in its assessment of this material. Ground(4) The Applicant contends that the Tribunal made assessments of the period prior to 1996 when it should have paid attention to the period 1996 - 2000 and in doing so relied upon Messrs Davison and Purvis. In other words the Tribunal balanced the evidence of these later managers against the evidence of those from an earlier period who on the Applicant's behalf included Dr Holland-Smith, Dr Phillips, Dr Pinfold and Mr Peggs. But the Tribunal noted that Dr Holland-Smith's evidence conceded that these managers saw him over a relatively short period of time when the Applicant worked largely alone and could work and organise his own time. Dr Holland-Smith accepted that the best judge of a career level is the resource and business group manager who would take account of a technical manager's comments. Dr Holland-Smith was noted by the Tribunal as throwing doubt on the Applicant's credibility [reasons 431]. The Tribunal made these decisions as a question of fact which the Applicant accepts them to be. No error of law can be detected. Instead, the Applicant relies upon dicta in Heffer and Knight v Tiffin Green unreported CA 17 December 1998 where Henry LJ cited a dictum of Lord Thankerton in Watt v Thomas [1947] AC 484 and 488:
"I always find it essential in cases of fraud when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case reference to the objective facts and documents, to the witnesses' motives and to the overall probabilities can be a very great assistance to a judge in ascertaining the truth … The Court of Appeal in the Heffer case overturned the judgment on the basis : "
Nor were the crucial contemporary documents given proper, detailed and dispassionate consideration. In my judgment they cannot be explained a way by an uncritical belief in Mr Heffer's credibility …" It seems to us that criticism cannot apply to the Employment Tribunal's reasons in the instant case. Ground (5) The Applicant contends that insufficient attention was given to the latest period of five years. But as the Tribunal makes clear [reasons 421] assessments did include that period of time and this point cannot be sustained by reference to those findings. Ground (6) The Tribunal rejected the Applicant's witnesses' evidence on the ground that they had limited exposure to his working [reasons 428]. It is true that the Tribunal was presented with evidence of people not directly sworn before it but nevertheless assessed the weight of that evidence and it is a matter for it to judge as what weight to give it. The Tribunal accepted Dr Holland-Smith's concession as to who is the best judge and notwithstanding bar charts presented by the Applicant on appeal to illustrate the various length of exposure to each of the relevant managers, the finding by the Tribunal based upon Dr Holland-Smith's concession cannot be faulted on appeal. An Employment Tribunal is not bound by the now relatively relaxed rules of evidence in civil proceedings and is entitled to give what weight to the material before it considers to be appropriate. It did so and gave reasons partly by reference to the Applicant's own evidence through Dr Holland-Smith. Ground (7) The Applicant contends that the Tribunal rejected aspects of his evidence in chief in his witness statement which was not challenged in cross-examination. A number of items on the Applicant's list are the subject of findings by the Tribunal eg TickIt and Purple Wizard [reasons 188-197]. Included within the latter is a dispute about whether the Applicant worked with a certain Will Jones or was alleged to have slowed down, so that Will Jones had an appropriate point of view on the Applicant's working skills. It seems to us that the layout of this comprehensive set of extended reasons shows the Tribunal working through the Applicant's chronology and allegations and consistent with its direction on the approach to what issues are important, has decided to make findings on the important issues only. In any event, as an illustration only, evidence given by Dr Paling and by the Applicant as to whether the Applicant worked with Will Jones is a question of fact for it to resolve. Ground (8) The Applicant contends that the Tribunal failed to make a finding in relation to named comparators. The Tribunal examined three applications made by the Applicant for different posts against the named person and rejected the allegation of race discrimination in each case [reasons 439-441]. It then considered the Applicant's allegation that he had not been promoted from SO to HSO in March 1995. It noted however that he was promoted in November 1995. Leaving aside whether the Tribunal had jurisdiction to make a specific finding on that allegation since the claim was not made until 2000, and treating the matter solely as one of background, we reject the contention that the Tribunal either failed to make a finding or failed to make a finding on a hypothetical comparator. The actual comparator was Dave Lander and although the tribunal does not cite him by name, the reasons for the Applicant's failure to gain 'fluid promotion' in March 1995 are specifically mentioned in the Respondent's case upon it which is accepted [reasons 443]. These are based on Dr Pickard's assessment and that there were certain problems managers had noted about the Applicant's performance. That is an explanation for the Applicant's failure to move up in March 1995, whether assessed against a white comparator Dave Lander or any other white comparator. It was not necessary therefore for it to consider hypothetical comparators as the Applicant on appeal now alleges on the basis of Balamoody v United Kingdom Central Council for Nursing [2002] ICR 646 , at 661 paras 57, 58, 60, 62 per Ward LJ. It will be noted that Employment Tribunal acted on the Applicant's counsel's submission and treated the first Originating Application as alleging direct race discrimination as against "his white colleagues" [reasons 394] and upheld the claim of less favourable treatment than "some of his white colleagues" [reasons 407]. It accepted the Respondent's non-race explanation [reasons 477]. We hold that in the circumstances of this case, the Employment Tribunal was required to deal only with named or generally described white colleagues, and did so. It was not necessary to deal with hypothetical comparators given the submission as to actual comparators. Even if the Tribunal did err, its acceptance of the Respondent's explanation is a complete answer to both an actual and a hypothetical comparator. Grounds (9) and (10) The Applicant accepts that these relate to the above point. Grounds (11) -(13) The Applicant contends that the Employment Tribunal arbitrarily rejected evidence from the Applicant's witnesses and considered the case on the basis of irrational criteria. In our judgment the finding by the Tribunal [reasons 427] was based upon the direct evidence of a number of managers who knew the Applicant over the whole of his time with the Respondent. It is a sufficient foundation upon which it came to base its judgment. Ground (14) The Applicant contends the Tribunal made 'perverse pivotal findings' which were unsupported by any evidence or contrary to the evidence actually presented. We do not accept that the matters put forward by the Applicant constitute either 'pivotal' or as he alternatively put it 'crucial' matters. We were slightly troubled however by one of them only, which relates to names of references given by the Applicant to Dr Paling, and the evidence of Dr Paling and Dr Williamson about what they knew of the Applicant's relevant experience. But the Tribunal makes clear findings about the way in which the Respondent assessed a move to career levels [reasons 127] and about what Dr Williamson and Dr Paling knew of the Applicant [reasons 307]. The Tribunal found that both these officers, whatever they knew, required a person to have necessary military experience and he did not. It is not clear, but it may be that the Tribunal preferred the oral evidence which it had heard to that of contemporaneous documents. Since a good deal of the factual material put forward by the Applicant was the subject of at least some dispute, the Tribunal's role in determining factual issues became important. Essentially, this is an allegation that the Tribunal failed to give weight according to the Applicant's contention to matters which required it or which required additional weight. This is not a question of law. Ground (15) The Applicant notes that the Tribunal was highly critical of the Applicant's relationship with his company LRQA. The Applicant contends that this constituted a collateral attack on his credibility. There may have been a dispute between the Applicant and the Respondent about whether or not he had specific approval to spend time on this outside activity. It was the Applicant's case that he did. But that did not satisfy the Tribunal since it noted as we have cited above that he was coy in cross examination on this matter. That is inconsistent with his being given a green light. The Tribunal was entitled to take into account the Applicant's approach to this in the witness box and as one matter affecting the credibility of his evidence. It should be recalled that no issue relating to race discrimination was raised in connection with LRQA. Ground (16) The Applicant contends that the Tribunal did not consider the chronology of events. By this, he means that it paid more attention to events occurring earlier rather than later. This criticism betrays no error of law. There were certainly criticisms of the Applicant during his early career and the Tribunal was entitled to give such weight to those as it saw fit. Ground (17) The Applicant criticised the Tribunal for not being sensitive to the change in the nature of the evidence being led by the Respondent. We do not fully understand this allegation but as explained to us it was that the Tribunal did not consider the motive of the Respondent in bringing witnesses to the Tribunal. This, of course, is not a matter for the Tribunal to cast a view on. What the Tribunal must be alert to is the insensitivity of bringing collateral allegations: see Anya paragraph 25. In our judgment it was. Ground (18) The Tribunal is alleged to have made a perverse decision. From what we have indicated above it did not. Further Grounds of Appeal[16]The Applicant sought in his skeleton argument to raise two new grounds of appeal relating to procedure. The first we interpret to be an allegation of apparent bias. We would thus apply the test set out in Porter v McGill [2002] 2 AC 357 , 494 paras 102-103. per Lord Hope of a reasonable person objectively viewing the proceedings. The Chairman was asked for his comments on an Affidavit presented by the Applicant. It is important to note that the Applicant says this:
"I must emphasise that except for the isolated incidences, at all other times the Chairman was polite, considerate and respectful. At no time during the hearing did I feel that the Tribunal panel was not fully attentive and … In summary I believe that the Chairman was unhappy to deal with this case."
Generally speaking the Chairman has accepted some of the points made by the Applicant but these do not indicate either actual or apparent bias in our judgment. It will be recalled that the Applicant was represented by Counsel at the Tribunal. There appears to be no objection taken by her at any stage. We do not hold that contemporaneous objection is a requirement, but its presence or absence is certainly a relevant factor in an appellate court's consideration of apparent bias, particularly where the complainant is legally represented: Kudrath v MoD unreported EAT Morison Prosecution 26 April 1999 EAT/422/97. There is no reference in the Applicant's skeleton argument to his complaint set out in his Notice of Appeal upon which the Chairman has commented. We therefore asked the Applicant why he was raising it orally. He told us this was because a lay member of the Tribunal, Mr Glaspool which was submitted, we think in January 2003, felt it necessary to comment since the Applicant had alleged as follows:
"Mr Glasspool is a former civil servant residing in Portsmouth. The key employer in the Portsmouth area is the MOD Naval base of which the MOD organisation DERA now DSTL is closely affiliated. It may be of relevance that the Tribunal has made any irrelevant and perverse finding of 'breach of Civil Service Code of Conduct'."
Mr Glasspool's response was that he was a civil servant with the Ordnance Survey until he retired in 1994. He had never had any connection with DSTL or MOD. He was still a member of IPMS (now Prospect) and served on its national executive. He had no connection with the Naval Dockyard. He considered that the finding about breach of the Civil Service Code of Conduct was neither irrelevant nor perverse. In the light of that the Applicant sought permission to introduce two further grounds. Essentially, the allegation by the Applicant is this:
"The decision demonstrates partiality that has been exercised to an extreme degree. This case is of an Applicant who would be classed as being a member of a British-born 'ethic minority' making a claim against a key government institution. The Tribunal were unwilling to make a finding in the Applicant's favour. … However justice must be seen to be done …"
[17]In support of this allegation the Applicant raises a number of findings unfavourable to him to which he attributes the improper approach cited above. In respect of Mr Glasspool, the Applicant contends that he only thought of the allegation against the Tribunal as a whole when he saw Mr Glasspool's response to his Affidavit. In our judgment this reveals nothing. At a time when the Applicant was fully in possession of all matters which might cause him concern ie when drafting his skeleton argument, he did not consider it appropriate to advance the earlier ground of appeal based on apparent bias. Nothing in Mr Glasspool's observations gives substance to the allegation. It is further contended that Mr Glasspool failed to disclose his relationship to what the Applicant calls 'the Respondent's Union'. This shows a fundamental misunderstanding of the role of trade unions and indeed the role of trade union members sitting on Employment Tribunals. Mr Glasspool denied that he had any connection with the Respondent. That he may have been active in the early nineties in a Union recognised by the Respondent for its staff ought not to raise an appearance of bias in the eyes of an informed reasonable observer, at least not at the instance of the Applicant . It is an unsubstantial complaint.[18]The Applicant's complaint is based upon his assertion that Mr Glasspool was part of the three persons Tribunal which made an incorrect finding of fact in relation to the following:
"Mr Clay took responsibility for the Applicant …"
Even if that were true, it certainly does not give any support for the assertion that the Tribunal would dispose itself not to make findings of fact in favour of the Applicant.[19]As a matter of procedure, we refuse permission to amend the amended grounds of appeal to include the two allegations now sought to be made in respect of apparent bias and actual bias. They are made late, and after the initial allegations have been put by the Applicant in his Affidavit and commented on by the Employment Tribunal. They will require further comment by the Chairman and Mr Glasspool. In any event, these grounds have no reasonable prospect of success and no hardship is caused to the Applicant by our refusal to admit them.[20]The appeal is dismissed. There is no need for us to address the directions sought by letter of the Applicant.