MR J G NYHAN v F E THORPE & SONS LTD [2003] UKEAT 0751_02_2804

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2003] UKEAT 0751_02_2804

Case No Appeal No. EAT/0751/02

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR J G NYHANAPPELLANT

F E THORPE & SONS LTDRESPONDENT

Before

His Honour Judge Birtles Mrs M T Prosser Mrs R A Vickers

Date 28 April 2003

[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT For the Respondent MISS ALISON SLATER (of Counsel) Instructed By: Messrs Wedlakesaint Solicitors 14 John Street London WC1N 2EB JUDGE BIRTLES : This is an appeal from the decision of an Employment Tribunal sitting at Watford on 3 April 2002. The Chairman was Mr C. Ingham and the Members were Mr A.P. Scott and Mr J.M. Skelton. The Appellant here, the Applicant in the Tribunal, appeared in person and Counsel for the Respondent was Miss Alison Slater, who appeared also before us this morning.

[2]The Tribunal unanimously decided that the Applicant's claim against the Respondent for unfair dismissal be dismissed, as it was not pursued by the Applicant. Extended Reasons were given by the Tribunal on 29 May 2002 when they were sent to the parties, and in those Extended Reasons the Tribunal recite that the Appellant was employed by the Respondent as a bus driver when he resigned and the issue was one, therefore, of constructive dismissal.

[3]The facts as found by the Tribunal are as follows:

"2 Mr Nyhan arrived late on the morning of the hearing and at 10.15 am the Tribunal was considering calling the case on. At about this time Mr Nyhan arrived and the parties and their representatives were called into the Tribunal room. No explanation or apology for his lateness was offered or provided by Mr Nyhan. 3 The Chairman sought to clarify the issues, and it immediately became apparent that documents had not been exchanged as required by the Tribunal in a Directions letter of 6 February 2002. It was alleged by the Respondent that Mr Nyhan had been unreasonable in making arrangements to receive documentation from the Respondent. It was also alleged that Mr Nyhan had not provided the Respondent with any documentation. 4 The Respondent then handed copies of documentation already in the possession of the Tribunal to Mr Nyhan. The Chairman then asked Mr Nyhan what documents, if any, he was going to produce. The Chairman explained that if there were no written Statement then notes would have to be made. Mr Nyhan said very little in response, but obviously had a bundle of papers in a plastic carrier bag with him. He was invited by the Chairman to indicate which of those documents he would be relying upon during the hearing. The consequences of producing these at the last minute were explained to him and he was advised that it might be difficult for him if he 'produced rabbits out of a hat' during the proceedings. It was alleged by the Respondent he had not complied with the Directions of the Tribunal and the Respondent was entitled to have copies of any documents he proposed to rely on. 5 This exchange, together with introductions, took approximately seven minutes and at 10.22 am Mr Nyhan walked out of the Tribunal without saying anything or providing any explanation. Efforts were made by Tribunal staff to locate Mr Nyhan in the building. By 10.30 am it was quite clear that he could not be found within the building and no further communication was received from him that day. 6 In view of the Applicant's conduct, the Respondent applied to the Tribunal to dismiss the Applicant's claim. 7 Having considered the conduct and behaviour of the Applicant and also his Originating Application, the Tribunal decided that the Applicant's claim should be dismissed under Rule 11(3) of the Employment Tribunals Rules of Procedure. 8 Following dismissal the Respondent indicated that it wished to make a claim for costs against the Applicant. This was subsequently withdrawn."

[4]The Notice of Appeal was received at the Employment Appeal Tribunal on 10 July 2002 and so therefore was in time. The grounds of appeal allege that, first, Mr Nyhan had tried to follow the directions, as set down by the Tribunal, but was constantly obstructed by the Respondent. We do not need to consider that allegation today. There is no substance in it. Second, that Mr Nyhan tried to explain the alleged obstruction of the Respondent to the Chairman, and that he needed more time to prepare but that the Chairman was "totally dismissive" and accused the Appellant of "trying to pull rabbits out of a hat" at this stage.

[5]At this point Mr Nyhan formed the view that the Chairman of the Tribunal was biased against him for reasons unknown to him; that he was not receiving a fair hearing and "unaware of what might result from his actions the Appellant withdrew from the proceedings".

[6]Those grounds of appeal were expanded in an affidavit by Mr Nyhan which was sworn on 25 July 2002, but suffice it to say that they add very little. Mr Nyhan deposes in paragraph 4 of his affidavit that he was apprehensive on the day of the hearing. We do not find that surprising, in view of the fact that he was an Applicant in person. He goes on to say, in paragraph 5 of his affidavit, that he was late because of delays on public transport, but because of his nervousness he did not offer an apology, and he alleges in the same paragraph of the affidavit that the Chairman greeted the legal representatives of the Company pleasantly, but no greetings were offered towards him and when he turned to Mr Nyhan his attitude and demeanour changed. He alleges that the Chairman made the remark about "pulling rabbits out of a hat" and that because of those matters he felt that the Chairman, and by implication the Tribunal, was biased against him, although we note that no allegations are made against the other two members of the Employment Tribunal.

[7]Those matters are further set out by Mr Nyman in his handwritten Skeleton Argument, and also in his written submissions, but they do not really change the essence of his argument which is that he formed a view that the Chairman was biased against him, first, because of the Chairman's tone towards him, as compared with the tone of voice used towards the Respondent's representatives and, second, the enquiry about the contents of the plastic bag. Mr Nyhan accepts that he got up and walked out of the Tribunal without offering any explanation and left the building.

[8]Those are the material facts. The full Tribunal having heard submissions from Counsel for the Respondent, and having considered the Originating Application, dismissed the application under Rule 11(3) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 . That provides as follows:

"(3) If a party fails to attend or be represented at the time and place fixed for the hearing, the tribunal may, if that party is an applicant, dismiss or, in any case, dispose of the application in the absence of that party or may adjourn the hearing to a later date; provided that before dismissing or disposing of any application in the absence of a party the tribunal should consider his originating application or notice of appearance, any representations in writing presented by him in pursuance of rule 10(5) and any written answer furnished to the tribunal pursuant to rule 4(3)."

[9]In this case the Tribunal looked at the papers and, as I say, heard submissions from Counsel for the Respondent. There were no representations in writing by Mr Nyhan in pursuance of Rule 10(5) and there was no written answer furnished to the Tribunal, pursuant to Rule 4(3). The Tribunal could have proceeded under Rule 15(2)(d) or (e) but that would require a notice being sent out to Mr Nyhan before the Tribunal took any action in dismissing his application: see Rule 15(3).

[10]The law relating to bias is set out in a number of authorities and, perhaps, the present most authoritative statement is that of Lord Hope in Porter v McGill

[2002] 2 WLR 37

at p.83, paragraph 102. Lord Hope, with whom the other Law Lords agreed, reviewed the earlier authorities on bias and, in particular, referred to the decision of the Court of Appeal in In re Medicaments v Related Classes of Goods (No.2)

[2001] 1 WLR 700

. Lord Hope summarised what the present Master of the Rolls, Lord Phillips of Worth Maltravers MR, said at paragraph 85 of that judgment:

"85 When the Strasbourg jurisprudence is taken into account, we believe that a modest adjustment of the test in R v 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 a real danger, the two being the same, that the tribunal was biased."

Lord Hope goes on to say, at page 83, paragraph 103, of his judgment in Porter v McGill the following: "I respectfully suggest that your Lordships should now approve the modest adjustment of the test in R v Gough set out in that paragraph. It expresses in clear and simple language a test which is in harmony with the objective test which the Strasbourg court applies when it is considering whether the circumstances give rise to a reasonable apprehension of bias. It removes any possible conflict with the test which is now applied in most Commonwealth countries and in Scotland. I would however delete from it the reference to 'a real danger'. Those words no longer serve a useful purpose here, and they are not used in the jurisprudence of the Strasbourg court. The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.

[11]That judgment is referred to and applied by the Court of Appeal in the presently unreported case, as far as we are aware, of BLP UK Ltd v Marsh : see page 5 and 6, paragraphs 23 through to 25, in the judgment of Lord Justice Peter Gibson.

[12]When one turns to the facts of this case, as set out in Mr Nyhan's affidavit and the appendices thereto, the response of the Chairman which is also before us, and the facts as found by the Employment Tribunal in its Extended Reasons, the complaint of bias comes simply to two points. First, the alleged difference in verbal treatment of Mr Nyhan compared with the verbal treatment of the Respondent's representatives at the Tribunal; that was solely in relation to greeting them when they came into the Employment Tribunal for the hearing to begin. The Chairman denies that he treated either party in any different way. Second, it is based upon the question, or questions from the Chairman, in relation to the contents of the plastic bag which appears to be the only receptacle that Mr Nyhan brought to the Tribunal for his papers. He is not to be criticised for using a plastic bag. What the Chairman was rightly concerned with, in our view, was the fact that Mr Nyhan might have some documents in that plastic bag that he intended to produce in the course of the hearing. There had been problems about exchange of documents and, quite rightly in our view, the Chairman wanted to make sure that all of the documents were in front of both parties and indeed the Tribunal, at the beginning of the hearing, and not produced intermittently in the course of the hearing. That, in our view, is an extremely sensible thing to do.

[13]As we have indicated, the hearing lasted only seven minutes before Mr Nyhan got up and walked out. In our view, on those facts, a fair-minded and informed observer, having considered those facts, would conclude that there was no possibility that the Tribunal was biased against Mr Nyhan, and for those reasons therefore, the appeal will be dismissed.