MRS C E THOMPSON v AGE CONCERN [2004] UKEAT 0728_03_0202

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0728_03_0202Case No Appeal No. UKEAT/0728/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS C E THOMPSONAPPELLANTAGE CONCERNRESPONDENT
Before
His Honour Judge J McMullenDate 2 February 2004
[1]APPEARANCES For the Appellant MRS C E THOMPSON (the Appellant in Person) For the Respondent WRITTEN SUBMISSIONS by MR ROBERT CARR, CONSULTANT HIS HONOUR JUDGE J McMULLEN QC This case is about an Employment Tribunal Chairman's decision to strike out an Originating Application on the ground that the Appellant's conduct had been scandalous, unreasonable and vexatious; and an allegation that she was biased. My conclusions, dismissing the appeal, appear at paragraphs 50-57 below. I will refer to the parties as Mrs Thompson and the Respondent. Introduction[2]It is an appeal by Mrs Thompson in those proceedings against the decision of a Chairman sitting alone, Dr Rachel Davies, and made at Cardiff on Monday 9 June 2003, registered with reserved reasons on 19 June 2003.[3]Mrs Thompson represented herself, as today. The Respondent was represented by a solicitor, Miss S Parrish who is employed in the litigation department of Croner Consulting, "expert advisers to business". I am hearing the appeal as a judge sitting alone pursuant to the Employment Rights Act 1996 section 28 (4).[4]Mrs Thompson's claim was summarised as follows: 2 "On Box 1 of her Originating Application she describes her complaint as "Special Rules Reinstatement Being or PROPOSING to become a worker representative under my contractual Team leader Obligations for breaches of H & S". It appears from the lengthy statement made in and attached to Box 11 that the complaint may have been brought under Section 100 of the Employment Rights Act 1996. If so, to come within that section Mrs Thompson would have to have been designated by the Respondent to deal with Health & Safety matters, or have been a Health & Safety Representative, or have been employed in a place where there was no such representative. 3 In their Notice of Appearance the Respondents deny that Mrs Thompson was or proposed to become a representative and say they had designated staff for Health & Safety. 21 …The issue in the case, even if [the Applicant] were to show that she came within Section 100, would not give rise to any issue as to whether there had in fact been health and safety breaches. The issue would be whether she had brought alleged breaches to the Respondent's attention and for that reason had been dismissed."[5]The issue for the Chairman was to decide of her own motion whether the conduct of Mrs Thompson warranted the striking out of the Originating Application. She decided it did. Mrs Thompson appeals against that decision, and contends the Chairman was biased. EAT Directions[6]I gave directions twice in chambers relating to the preparation for the appeal. First, Mrs Thompson should commit her allegations of actual bias against the Chairman to sworn evidence on affidavit, upon which the Chairman could comment, pursuant to Practice Direction paragraph 11.[7]The affidavit of August 2003 contains sub-headings indicating eleven points of law and six points of actual bias. An exhibit to it includes further points of law. An unsworn letter of the same date contains further matters relating to bias, relying on authorities, and alleging that she has been caused post-traumatic stress disorder as a result of unfair disciplinary action taken by the Respondent during the course of employment. Mrs Thompson alleged that as a result of the "totally biased" action of the Chairman further stress was caused to her requiring medication.[8]These documents were shown to the Chairman who provided a reply on 1 September 2003. On 5 September 2003 Mrs Thompson submitted a further six-page response to those comments, which has not been shown to the Chairman.[9]Secondly, directions included the preparation by Mrs Thompson of a bundle, in agreement with the Respondent. On 9 December 2003 she wrote to the case manager of the appeal. Mrs Thompson contended that by reason of her medication she was unable to produce a bundle in accordance with the Practice Direction and in due course produced her own. The Respondent produced a bundle in accordance with the Practice Direction containing the relevant documentation.[10]Miss Parish's line manager, Mr Robert Carr took over the preparation of the case and submitted a Skeleton Argument. He had been instructed by his client that, for the saving of costs, no representative would be attending but that the Respondent relied upon his written submissions.[11]At the opening of the full hearing before me I overlooked the fact that the Respondent had indicated it would not be attending and asked Mrs Thompson what she wanted to do. She indicated how important it was for her to have her case heard and not adjourned. I agreed.[12]I had been forewarned by Mrs Thompson's correspondence of her suffering from PTSD, for I had seen a medical certificate, and she had also indicated that she is dyslexic, although I have no medical material on this condition. I have considerable professional experience of PTSD and considerable personal and professional experience of dyslexia. I made allowances for her obvious difficulties.[13]The timetable for this hearing included a direction that each party should have one hour. That became more flexible as the Respondent was not represented. At the opening of the case Mrs Thompson began to read a witness statement of a colleague, during the course of which she broke down in tears a number of times. It was plain to me that after about 40 minutes Mrs Thompson was under considerable stress. I invited her to consider whether, in the absence of the Respondent, I should read its written submissions together with the lengthy written submissions produced by Mrs Thompson, and give careful consideration to what she had written and said in a judgment which I would give on a later date and post to her. She agreed. She appeared to be relieved at this decision.[14]In a letter sent personally to me dated 12 December 2004, which of course is 12 January 2004, Mrs Thompson said this:
"I would like to thank you for your kindness and empathy and also the two tribunal staff especially the lady who were so kind at the hearing. I recognise the fairness that the London Court intended to give me a fair hearing and felt I let myself down by been [sic] to [sic] much of an 'emotional mess' to not address that which I came up to address."
[15]The EAT staff were much heartened to receive such a comment. The letter consists of nine closely written pages. With it is a large bundle of about 200 pages, not paginated in sequence. Some passages are not highlighted but most are, in six different colours, predominantly green. I do not know whether these are coded by importance or subject. The bundle is cut and pasted with Mrs Thompson's handwritten comments in different inks on different coloured notepaper. Some pages are 3 feet long. It is not easy to navigate or understand. It contains essentially a reiteration of the arguments in the Skeleton Argument. On 26 and 27 January 2004 while writing this judgment I received a further 50 page submission. I have read such of these additional papers as I need to inform this judgment, in addition to the reading I have already given to the papers. I accept that Mrs Thompson intends faithfully and genuinely to put all the material before me which is of assistance in her case. I accept that she is under medication for stress, and is much better able to present her case in writing with access to a word processor and to the authorities which she has researched. The Facts[16]The facts are tentatively stated since there has been no trial of the issues. Mrs Thompson is 57 and has a number of qualifications in nursing and law, including two first degrees and two masters degrees in law specialising in employment law and forensic and medical law. She is experienced in presenting cases to welfare tribunals, for that was her job with the Respondent. She was employed as a Team Leader - welfare rights in Cardiff at a salary of £1,381 per month from 17 September 2001 to 10 July 2002 when she was dismissed for gross misconduct.[17]The Respondent is a national charity concerned with the welfare of elderly persons. It has three offices in Cardiff.[18]Mrs Thompson made a complaint to the Employment Tribunal which is accepted to be made under section 100 of the Employment Rights Act 1996 . She did not have the one year's service required to make a claim of "ordinary" unfair dismissal. She alleged that she had been dismissed for addressing issues relating to what she contended were breaches of health and safety law by the Respondent. Disciplinary action taken against her caused stress-related illness. She was issued with a final written warning for gross insubordination for raising these issues and eventually was dismissed. Those issues have not been tried.[19]The reason the Chairman decided to strike out Mrs Thompson's Originating Application is her conduct in the preparation of the case, principally relating to her application for disclosure of documents by the Respondent.[20]The case was originally listed for a pre-hearing review under Rule 7 of the Employment Tribunal Rules 2001 . This gives the Tribunal power to order a deposit to be made of up to £500 as a condition of being permitted to continue to take part in the proceedings at all, or in relation to a particular issue, in either case where it is decided that there is no reasonable prospect of success. Mrs Thompson objected to this course on 19 grounds which the Chairman dismissed. She also asserted she was the victim of a "dirty tricks" campaign by the Respondent. The Chairman decided there was nothing to substantiate her allegation of intimidation by the Respondent.[21]On 14 October 2002 Mrs Thompson sought:(a) A fire officer's report for the Respondent's premises at Whitchurch Road; and(b) Risk assessments for the past 5 years for Whitchurch Road and Caerphilly Road.[22]As to this, the Respondent had already advised Mrs Thompson that there was no fire report for Caerphilly Road and that at Whitchurch Road the fire officer had merely requested a fire detector be changed. A further fire officer's reference in the form of a report dated 5 August 2002 was made after the dismissal when the Respondent contended, having told her so, that this was irrelevant. The pre-hearing review took place before a different Chairman on 25 October 2002 and no conclusion falling within Rule 7 was made.[23]Shortly thereafter, Mrs Thompson complained that Miss Parish was negligent. The Chairman found that that was a matter for the Respondent and not for Mrs Thompson or the Tribunal. Mrs Thompson complained Miss Parish was dishonest as a lawyer in her responses to the Chairman and in the evidence withheld at the hearing. This was found to be misconceived by the Chairman ultimately hearing the case, for there had been no evidence at the pre-hearing review and so there could be no withholding of it. The Chairman dismissed the allegation of withholding evidence.[24]Mrs Thompson continued to maintain that Miss Parish was unprofessional and told lies. The Chairman regarded this as inflammatory. Mrs Thompson continued to assert that the issues in the case were related to health and safety matters but the Chairman noted that Mrs Thompson gave no statutory provisions or authorities upon which such assertion was made. Having refined the issue (see paragraph 4 above), the Chairman decided that Mrs Thompson's: 21 "…insistence that the case involved deciding whether there had been health and safety breaches was misconceived."[25]A directions hearing was conducted on 17 December 2002 and an order for inspection by Mrs Thompson of "Risk Assessment Handbooks for Bwlch Road and Whitchurch Road" was made. Directions also included Mrs Thompson answering the Respondent's request for particulars. The case was listed for 20 and 21 March 2003.[26]Mrs Thompson conducted an inspection pursuant to the Order. This matter is dealt with by the Chairman as follows: 24 "Mrs Thompson exercised her right to Inspection on 21 January 2003. She was shown documents but was told there was no Risk Assessment Handbook for Bwlch Road. By letter dated 24 January 2003 Mrs Thompson wrote to the Tribunal Office stating that she had been advised by Miss Parish that no "Health & Safety File" existed for Bwlch Road, and there was no documents at Caerphilly Road other than some examination papers for a Mr Lewinder. The Tribunal had not made an Order relating to Health & Safety files or in respect of Caerphilly Road. In her letter Mrs Thompson says that a Mr Jones, Senior Environmental Health Officer, told her he had seen the files, and that "Miss Parish had previously refused access to fire documents". This version is not consistent with Mr James's inspection report sent to the Tribunal Office on 3 March 2003, in which he says there was "no documentation" to show that a Risk Assessment had been undertaken at Bwlch Road."[27]Shortly thereafter, the Respondent applied to strike out Mrs Thompson's claim on the ground that bundles had not been exchanged. Mrs Thompson responded by way of a medical certificate and the Respondent withdrew its application. The hearing for March 2003 was postponed and Mrs Thompson indicated that the agreed estimate of two days should now be four. She sought a further directions hearing in respect of "relevant evidence" which was "inspection of "risk assessment handbooks" for Bwlch Road and Whitchurch Road."[28]The Chairman pointed out that there never was a risk assessment on Bwlch Road and thus the Respondent could not provide the document. Mrs Thompson also sought a document in relation to Caerphilly Road which arrived after her dismissal and had been disclosed. Mrs Thompson criticised Miss Parish for withholding "vital evidence" from the Tribunal. The Chairman found that this matter could not have been "vital or even relevant". Nevertheless, as the Chairman put it, Mrs Thompson went on to allege continued breaches by the Respondent of the inspection order and attempts to mislead the Tribunal by Miss Parish. The Chairman decided: 32 "Guilt or otherwise established by a post-dismissal document can have no relevance to the Tribunal's consideration of the situation as "it was at the time of dismissal"…"[29]Nevertheless, Mrs Thompson continued to make the assertion that Miss Parish concealed documents. The Chairman found there was no reason why Miss Parish should have mentioned the post-dismissal report because it was not relevant.[30]Mrs Thompson continued to seek a directions hearing so that a further inspection order could be made. The Chairman held that this would serve no purpose. By now Mr Carr of Croners had written to Mrs Thompson in courteous but firm terms indicating that Mrs Thompson's conduct appeared to be vexatious and she should desist. Miss Parish herself indicated that further directions were not necessary. The bundle received from Mrs Thompson consisted of 400 pages. Miss Parish complained that the correspondence was abusive. Her complaint was as follows: 36 "…"We receive voluminous and sometimes abusive correspondence from the applicant, to the extent that we are not willing to enter into correspondence unless it is necessary for the preparation of the case. The applicant telephones the writer at weekends, despite being asked not to contact the writer by phone. The writer does not accept any accusations of unprofessional conduct in relation to withholding evidence. The Fire Risk Assessment referred to by the applicant was in fact issued after the dismissal. Therefore we fail to see how it is relevant to the applicant's claim and have in any event already disclosed the assessment to the applicant so an Order would be futile". Miss Parish pointed out that the Respondents had complied with the Direction to exchange witness statements 14 days prior to hearing, but Mrs Thompson had not."[31]There was further correspondence, including a medical certificate. Mrs Thompson continued to allege health and safety breaches and continued to maintain that Miss Parish had concealed evidence and was guilty of contempt of court. She also drew to the Tribunal's attention a complaint she made to the Law Society. This refers to the previous matters including gross misconduct and mischievous allegations. This letter caused the Chairman to be seriously concerned about the allegations which had been disclosed to the Tribunal in conjunction with her earlier correspondence. The Chairman therefore caused a letter to be written which included the following: 41 "…"It appears to the Chairman that your persistent vilification of Miss Parish could constitute an attempt to influence the Tribunal amounting to vexatious conduct." She was invited to show cause by 6 May 2003 why her complaint should not be struck out on the ground that he conduct of proceedings constituted "scandalous, unreasonable or vexatious conduct" within the meaning of Rule 15 (2) (d) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2001."[32]In response to that, the Tribunal Chairman noted that: 42 "There have also been numerous and lengthy phone calls which have taken up a considerable amount of administrative time."[33]There are frequent citations by Mrs Thompson of Edwards v UK [1992] 15 EHRR 417. She continued to assert that there is a breach by the Respondent because of its failure to provide her with "the statutory document". The Chairman decided that Edwards was of no relevance since it related to a criminal matter; she held as a matter of fact that the Respondent had complied with the orders of the Tribunal so far as it was able. As to this, following the requirement that she show cause why her application should not be struck out, Mrs Thompson said that the Chairman was "guilty of making accusations without visiting case law and unilaterally protecting the interests of the persons who are paid to observe the instructions of the court."[34]Having carefully considered over 5 days all of the documentation in this case the Chairman struck out the Originating Application. The Chairman was careful to note the six objections to this course of action put forward by Mrs Thompson which were each rejected by the Chairman as follows:(1) "Evidence was not required at the pre-hearing review or at the Directions Hearing, so there could not have been concealment of evidence or withholding of documents;(2) There is nothing whatsoever in the voluminous correspondence capable of indicating that lies have been told to the Tribunal;(3) The Order for Inspection was complied with insofar as was possible;(4) The right to a fair trial applies to the Respondents as well as to Mrs Thompson and the copying of the letter to the Law Society points to a deliberate and malicious attempt to influence the Tribunal against the Respondent's representative.(5) There is no "less favourable Treatment", in that any Respondent who conducted his or her case in an apparently unreasonable or vexatious manner would be invited to show cause.(6) Freedom of expression under Article 10 can be restricted "for the protection of the reputation of rights of others"."[35]The Chairman then decided that there could be no objection to Mrs Thompson being required to show cause since matters of concern had been drawn to the Chairman's attention and she had noticed such matters herself. The Chairman then went on to make firm findings as follows: 52 "There is nothing in the correspondence throughout these proceedings to suggest that the allegations she has made against Miss Parish are justified. There is nothing in the records of the pre-hearing review, and the Directions hearing, to suggest that Miss Parish behaved anything other than properly at these hearings. The correspondence also shows that she went beyond what was ordered (and beyond what was relevant) in that she passed on the post-dismissal Fire Report to Mrs Thompson. It shows an entirely proper request for particulars which was met with an insulting and inflammatory response. It shows generosity of conduct in that the request to strike out was withdrawn as soon as Mrs Thompson provided a medical certificate 53 In contrast, Mrs Thompson has not only accused Miss Parish of lying and dishonestly concealing evidence, but she has made considerable efforts to damage her career prospects, she has sought to damage her relations with her employer, has uttered threats to the employer, has sought to blacken her name with the Law Society, and by copying her letter to the Law Society to the Tribunal, she has sought to influence the Tribunal against the Respondent. The right to a fair trial under Article 6 entitles everyone to an "impartial Tribunal". Mrs Thompson by copying that letter to the Tribunal has sought to deprive the Respondents of that right. 54 I have spent five full days reading thoroughly through the correspondence and further time in careful consideration of this matter. In my view the Respondents cannot even begin to prepare satisfactorily for hearing or to conduct their side of a fair trial in the face of such unremitting vilification of their representative and in the face of insulting and inflammatory response to their reasonable requests for particulars. … 56 The Respondents are a charity. It is totally unacceptable that they should be subjected to the costs of voluminous, negative and vindictive correspondence and then to two or four days of hearing in similar vein. I find that Mrs Thompson's conduct of these proceedings has been "scandalous" within the meaning of Rule 15 (2) (d) in that it has been misconceived and abusive; "unreasonable" in that it has rendered the Respondent's preparation of the case expensive and difficult if not impossible; and "vexatious" in that Mrs Thompson has taken deliberate steps to damage Miss Parish in the eyes [of] those instructing her, of her employers, of the Law Society and of the Tribunal. The interests of justice demand that the Originating Application be struck out." Mrs Thompson's Submissions[36]Mrs Thompson complains in two ways. First, she contends that the Chairman misdirected herself in law. Secondly, that she was biased. The essence of these two separate grounds can be found in the second page of her 14-page Notice of Appeal:
"I wish to appeal against strike out of my Tribunal case on grounds of 'alleged' unreasonable conduct under Rule 15 (2) (d) made by the Tribunal Chairman Dr Rachel Davies. The only defence the Respondents had was to allege 15 (2) (2). However in their attack on my credibility that has occurred since the onset of this case the Employment Tribunal has failed to recognise that the respondents where [sic] on every opportunity making allegations against me that included malicious weekend telephone calls, unreasonable conduct amongst others whilst they were actively preventing me demonstrating my case by producing a Risk Assessment on two buildings in particular. Dr Davies has shown no application of Health & Safety in the Workplace and the statutory obligations on employers with more than 5 persons to Risk Assess and Record etc."
[37]In her affidavit and Skeleton Argument Mrs Thompson raised eleven points of law. I imagine she will consider I am doing a disservice to her submissions when I say that they do not relate to matters which are the subject of the strike out Decision. They deal with matters relating to what Mrs Thompson contends are the Respondent's duties in relation to health and safety.[38]As to the complaints of bias, Mrs Thompson's affidavit contends that the Chairman had no knowledge of health and safety, failed to deal properly with Mrs Thompson's presentation of an itemised phone bill indicating Mrs Thompson made phone calls and wrongly concluded that Mrs Thompson was difficult and offensive when she was simply asking for documents from Miss Parish.[39]Further allegations relating to the disclosure of the fire reports also come within the heading of " Bias " in the affidavit; but again these seem to be to be points of law. So does the allegation that the Chairman noted that the Respondent was a charity which was in some way unfair to Mrs Thompson. Mrs Thompson contended as follows:
"Bias failure to advise is identified in The Law Society Letter as been [sic] failure to advise the court when I was in no position to know about the Risk Assessment and have the (??) In all aspects of evidence the Tribunal Chairperson in her reason favoured the respondents who had failed in compliance with their express duties. The question must no [sic] be placed as to why the Employment Tribunal Chairperson did not confine her responses to the Statute and allow the Respondents to persistently vilify me in every communication as they were clearly aware of their failings. Further to that it is questionable if Health & Safety is being police [sic] at the Employment Tribunal under this Chairperson as clearly as the Respondents had no further case when it was discovered that no Risk Assessments were complied with that would have verified my case. I would have been saved enormous stress under Walker v NCC on both accounts."
[40]Mrs Thompson further contended that the Chairman should not have been swayed by "tactical arguments to discredit me". She alleges that she was not afforded a fair hearing as her case was that she herself was protecting workers and others at the workplace, whereas the Chairman was not qualified in health and safety matters. The Respondent's Submissions[41]The Respondent contends in its Skeleton Argument that Mrs Thompson did not in her grounds of appeal identify any error of law. Although the Respondent had in correspondence indicated that it would complain of Mrs Thompson's vexatious behaviour, it was the Tribunal which took the point.[42]The Respondent referred to the Chairman's conclusion that there was unnecessary voluminous correspondence and personalised attacks upon its representative together with her obsessive view of the importance of certain documents. The Legislation[43]It appears to be accepted that Mrs Thompson's claim arises solely under section 100 of the Employment Rights Act 1996 which provides as follows: 100 " Health and safety cases (1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that - (a) having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, the employee carried out (or proposed to carry out) any such activities, (b) being a representative of workers on matters of health and safety at work or member of a safety committee (i) in accordance with arrangements established under or by virtue of any enactment, or (ii) by reason of being acknowledged as such by the employer, the employee performed (or proposed to perform) any functions as such a representative or a member of such a committee, … (c) being an employee at a place where - (i) there was no such representative or safety committee, or (ii) there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means, he brought to his employer's attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety, (d) in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place or work, or (e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger."[44]The power to strike out an Originating Application is given to a Tribunal under Rule 15 (2) (c) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 which provides that a Tribunal may:
"…at any stage of the proceedings, order to be struck out or amended any Originating Application…or anything in such application…on the grounds that it is scandalous, misconceived or vexatious."
This power may be exercised on notice or at an oral hearing, provided an opportunity is given to show cause as to why the Order should not be made.[45]Scandalous was defined by Ward LJ in the Court of Appeal in Bennett v Southwark LBC [2002] ICR 881 CA at paragraph 53 citing Daniell Chancery Practice prior to 1923, as occurring:
"…in the allegation of anything which is unbecoming the dignity of the court to hear, or is contrary to good manners, or which charges some person with a crime not necessary to be shown in the cause to which may be added, that any unnecessary allegation bearing cruelly upon the moral character of an individual, is also scandalous."
Sedley LJ in the same case held it to mean something "that shocks the speaker". (paragraph 27). He also held that the response to such a finding should be proportionate, so that strike out was not the only remedy: ibid at para 28. He held that "firm case management may well afford a better solution." Conclusions[46]In my judgment, the Chairman cannot be faulted in her depiction of the conduct of Mrs Thompson in her attack upon the Respondent's legal representative. It was within the scope of the Chairman's judicial functions, and case management directions, to decide whether the conduct had made a fair hearing impossible.[47]Direct personal attacks upon a party's representative, after specific directions by a judicial officer, would fall within the category of those cases where there has been an abuse of the Tribunal procedure. The Chairman repeatedly said that the issue of the documents upon which Mrs Thompson's mind was so clearly focused was not relevant and was wrong. The continued attack upon the Respondent's representative for upholding that position, couched as it was in abusive terms, is aptly described as an abuse of process.[48]The Respondent is entitled to choose as its representative at an Employment Tribunal anyone at all. It chose to put its case in the hands of experienced representatives in this sphere whose officer was a solicitor of the Supreme Court. That officer was carefully supervised by Mr Carr. The personal attacks upon her did not abate, despite clear directions by the Chairman. The ability of Miss Parish to conduct her client's case was held by the Chairman to be in peril. Warnings had failed. Mrs Thompson failed to see that the point she was chasing was a chimera. To chase it obsessively and abusively was scandalous. I am fortified in my decision to uphold the Chairman's by my observation of Mrs Thompson's conduct of the case before me, not because of her abuse of the Respondent, but because of her inability to focus on a substantive issue. The document referred to in paragraph 15 above is a good example, as is Mrs Thompson's reading of a witness statement to me which was not relevant to the appeal.[49]I cannot see any error in the Tribunal Chairman's approach to advancing the interests of justice in her decision. Mrs Thompson has put forward no substantive points of law touching upon the exercise of the Chairman's power under the Employment Tribunal Rules. The Chairman was aware she was using a powerful tool but was sure that justice to the Respondent could not be done when Mrs Thompson so conducted herself, after warnings. She also expressed her view of the merits of the case, reminding her and herself of what issues Mrs Thompson would need to address under section 100. I do not consider the Chairman's response was disproportionate.[50]I now turn to her complaint about bias. The test of apparent bias is set out by Lord Hope in Porter v Magill [2002] 2 WLR 37 at paragraph 102. If it would appear to a reasonably informed bystander that the Chairman was showing favour to one side unfairly as against the other, the Chairman would have acted in breach of her duty.[51]However, in this case, Mrs Thompson contends the Chairman was biased. I am prepared to apply Lord Hope's test of apparent bias to Mrs Thompson's case since I see no basis to support a complaint of actual bias. There is no evidence, or reason to suggest there may be some, of the Chairman's actual bias. The Chairman in her comments submits she has no involvement in the case and I accept that the complaint of actual bias fails. Such complaints are rare, and even more rarely succeed. Thus I will treat the complaint as one of apparent bias.[52]I have to say that in sum Mrs Thompson's complaint is that the Chairman should not have struck out her case. Yet a judicial officer who makes a decision against you does not usually act in that way because she is biased against your case. Having read most carefully Mrs Thompson's Notice of Appeal, additional letters, affidavit, exhibit, further additional letters and documents, and heard her oral presentations supported by further written documentation, I am firmly of the view that Mrs Thompson's complaint against the Chairman is in respect of the substantive decision which she made to strike out the Originating Application, and has nothing whatever to do with her appearing to favour the Respondent against Mrs Thompson.[53]None of the grounds put forward by Mrs Thompson approach the threshold set by Lord Hope in Porter v Magill . Whatever complaints Mrs Thompson has about the Chairman's knowledge of health and safety law, when set against Mrs Thompson's own appreciation of the law on this subject, they do not reach the standard required in Porter v Magill so that it is possible to say that the Chairman appeared to disfavour Mrs Thompson and her case unfairly.[54]The Chairman has given cogent reasons for her decision on the substantive point of disclosure of the documents and for her appreciation of the law relating to dismissal on the ground of health and safety. Her decision discloses no element of unfairness in her treatment of the parties in this case. Disposal[55]I appreciate Mrs Thompson will be dissatisfied with the decision I have made. In her written submissions after the oral hearing she made an application for costs in the sum of £2,500. Mrs Thompson lost the appeal and so it would be highly unusual, in the unusual circumstances of an EAT award for costs under Rule 34, for costs to be awarded. Mrs Thompson's case failed because the Chairman reached a decision which was open to her. There has been no unreasonable conduct by the Respondent and I refuse Mrs Thompson's claim for costs. The appeal is dismissed.