MISS D ROBERTS v VALLEY ROSE LTD T/A FERNBANK NURSING HOME [2006] UKEAT 0394_06_3110

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2006] UKEAT 0394_06_3110Case No Appeal No. UKEAT/0394/06Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS D ROBERTSAPPELLANTVALLEY ROSE LTD T/A FERNBANK NURSING HOMERESPONDENT
Before
Mr Justice Burton Mr P R A JacquesDate 31 October 2006
[1]APPEARANCES For the Appellant MR S NEAMAN (of Counsel) Instructed by: Ashby Cohen Solicitors Ltd 18 Hanover Street London W1S 1YN SUMMARY Practice and Procedure – Perversity Public Interest Disclosure Allegation of apparent bias, after operation of paragraph 11 procedure, considered and dismissed. One ground out of lengthy Notice of Appeal permitted to go forward to full hearing (with a question posed to the Employment Tribunal for such purpose), namely whether the case of mala fides in respect of the otherwise protected disclosure found in respect of the Appellant was sufficiently put to her to deal with (cf Lucas v Chichester EAT/0713/04). THE HONOURABLE MR JUSTICE BURTON This has been the preliminary hearing of an appeal by Miss Roberts, the Appellant, against the conclusion of the Tribunal at Watford, after a hearing which lasted six days, plus a discussion day, in July and October 2005, by a Judgment delivered to the parties on 5 December 2005. That decision by the Employment Tribunal related to the Claimant's claim for automatic unfair dismissal, on the grounds that the principal reason for her dismissal was because she made a protected disclosure or disclosures, and that she had been subjected to a detriment on the ground that she had made those protected disclosures, and her claim in that regard was dismissed. The finding by the Tribunal related to a list of issues which had been prepared and to which both parties worked, and which is the subject matter of paragraph 2 of the Judgment.[2]So far as the disclosures are concerned, there were, set out in paragraph 2.4 of the Judgment, nine such alleged disclosures, and in due course the Tribunal found that five of those did not amount to qualifying disclosures within section 43(B) of the 1996 Act . There is no separate complaint on this appeal in relation to that finding. The Tribunal found, however, that there were four qualifying disclosures, and three of those related to events concerning a patient, who is named Ellen, and a staff nurse called Mrs Eze. There is no separate ground of appeal relating to the one disclosure which did not fall within that category.[3]The conclusion of the Tribunal was that the three Ellen disclosures, as we shall call them, were disclosures not made in good faith, and consequently, under the Act , could not be relied upon by the Claimant. So far as the fourth such disclosure was concerned, and, in any event, as an alternative finding if the Tribunal had been wrong with regard to good faith under section 43(C) of the Act, the Tribunal concluded in paragraph 14 of the Judgment that the principal reason for the Claimant's dismissal was a catalogue of misconduct on her part, set out in detail in the Tribunal's findings of fact. The principal reason for her dismissal was not because she had made any protected disclosures; it was because of her misconduct.[4]The grounds of appeal fall into two parts. The first amounts to an allegation of apparent bias. The second is a substantive appeal, relating to the Tribunal's conclusion that the Ellen disclosures were vitiated by that faith. We indicated at the outset of this hearing to Mr Neaman of Counsel, who has represented Miss Roberts very ably before us but did not appear below, that we were prepared, on a limited basis, to allow the substantive bad faith appeal to go forward to a full hearing, and we shall explain that later in this Judgment, but that we were not persuaded as to the other matters which were relied upon with regard to that bad faith appeal, other than those which we indicated, and that we were not persuaded that Mr Neaman's support in his Skeleton Argument for the Appellant's grounds of appeal in relation to apparent bias took him to the threshold of arguability sufficient for the matter to go forward to a full hearing. After taking instructions, Mr Neaman indicated that his client accepted the limited basis upon which the appeal could go forward with regard to bad faith, but wished him to pursue the appeal in respect of apparent bias, and we have heard argument accordingly on this preliminary hearing.[5]There is, of course, a number of well-known authorities on the question of apparent bias, and the test of appearance of bias was most persuasively and clearly set out by Lord Hope in Porter v Magill [2002] 2AC 357 at 494, paragraphs 102 to 103. There are, rightly or wrongly, many appeals which are brought before the Employment Appeal Tribunal alleging apparent bias on the part of Chairman and/or members of a Tribunal, and, if established, a case of apparent bias can amount to a point of law sufficient to justify, at any rate, the matter going forward to a full hearing. Nevertheless, we have set up at this Employment Appeal Tribunal now a process, whereby comments are obtained from the Chairman and members and, where appropriate, after an affidavit from the Claimant and/or his or her representative and where such is seen to be the proper course, comments by the Respondents and/or the Respondent's representative. In this case, we have comments from the Chairman and full comments from one of the lay members. No order was made for an affidavit from the Respondent, and consequently we have, at this stage, no comments from the Respondent, but we have, this being a preliminary hearing, concise written submissions from the Respondent's Counsel in answer to the case.[6]The procedure thus adopted does enable this Appeal Tribunal, where appropriate, to give the full consideration which the Court of Appeal expects of us to an allegation of bias, without necessarily sending the matter through to a full hearing. This can be done either on a Rule 3 application or, as in this case, with the involvement of lay members on this Appeal Tribunal at a preliminary hearing. We have, therefore, had the opportunity of considering in full, for the purposes of this appeal, not only the Appellant's Notice of Appeal and her affidavit, and the statement of her representative below, but the concise submissions from the Respondent and the comments from the Chairman and the lay members. We are satisfied that we are, absent only evidence from the Respondent, in as good position as we would be at a full hearing to see whether there is anything in the allegations of apparent bias that are made, although, of course, at a preliminary hearing the threshold which the Appellant has to surmount is only one of arguability and therefore, from that point of view, is a lower threshold. For reasons that we will give, we are entirely satisfied that that threshold is not achieved in this case.[7]In a recent decision of mine, given at this Appeal Tribunal with different lay members, in Ansar v Lloyds TSB Bank Plc & Others No. 1 EAT/0152/06/SM, I delivered a Judgment after, together with the lay members, we had spent four days analysing a whole series of alleged incidents over a 36 day hearing in the Tribunal, which was said to constitute apparent bias on the part of the Tribunal, including alleged inconsistent conduct towards one side as against the other, and alleged unfairness with regard to the way in which the Appellant's case was treated. We heard oral evidence. We referred to Lord Hope's dictum in Porter v Magill , which I have cited, and to the dictum of Rimer J in London Borough of Hackney v Sagnia UKEAT/0600/03 & UKEAT/0135/04, 6 October 2005.[8]We emphasised that we accepted that it was necessary to carry out a proper investigation of a case of apparent bias, and we said, at paragraph 57, as follows:
"We would not wish to end without taking the opportunity to express our concern, after an appeal which has lasted three and a half days of judicial time at the Employment Appeal Tribunal, time which is valuable, not for itself, but because of the other cases that need to be dealt with, mostly dedicated to the consideration of the allegations of bias and misconduct. There is no need for us once again to repeat the scriptures of Rimer J in London Borough of Hackney v Sagnia , paragraphs 63 to 66, or the warning contained in paragraph 11 of the EAT practice direction. We do not seek to discourage properly arguable appeals, and loyally follow the guidance of the Court of Appeal that the Employment Appeal Tribunal must resolve material disputes of fact where there is a complaint about the behaviour of a member of the Employment Tribunal… and must, unless the allegation is totally without merits on its face, exercise its powers in the manner contemplated in the practice direction before reaching its decision, thus giving the Claimant, the Respondent and members of the Tribunal the opportunity to say what happened. But there is no reason why this cannot be done - and, in our judgment, this should have been such a case - by way of a consideration under Rule 3(7) and 10 of the Employment Appeal Tribunal Rules, and the same goes for a preliminary hearing, without a full hearing and without cross-examination."
And we set out that we did not feel we had in any way benefited by examination and cross-examination of live witnesses in that case. That of course is in no way a declaration by the Employment Appeal Tribunal that no cases will be permitted forward from an interlocutory hearing to a full hearing where apparent bias is alleged. It is, however, a clear signal that sufficient investigation of a case can be made at the interlocutory stage, and we have done so here with the benefit of full argument in writing, both by the Claimant and by Mr Neaman, now supplemented by oral submissions. The case for apparent bias does not depend on any one or more incidents, relied upon against the Tribunal, and it certainly does not depend upon any specific event which could form, or should form, the subject of examination and cross-examination. It is said to amount from a congeries of matters which together show, in the submission of the Appellant, a biased approach by this Tribunal. On the face of it, in the Judgment, which is some 17 pages long, there is a full consideration of the case. But, lying behind that, submits Mr Neaman on the Appellant's behalf, is an inappropriate approach throughout the hearing.[9]There are a number of bases on which this apparent bias case is put. Firstly, approach or attitude of the Tribunal towards the Appellant's representative. The Appellant herself was plainly dissatisfied with such representative, and not only complained about her afterwards, but copied in the Chairman, after the conclusion of the hearing, with her complaint. It is not surprising, if she felt that she had not been properly represented, that the Tribunal itself found that they were not being assisted by that representative. The representative herself has put in a two-page witness statement, which does not, in fact, answer or deal with, or corroborate, some of the points which the Appellant made in her Notice of Appeal.[10]We are entirely satisfied that there is nothing set out in the Notice of Appeal at paragraphs 6, 7, 9 or 10, which could found any criticism of an inappropriate approach by the Chairman or Tribunal, as corroborated and supported by the statement from the lay member. The highest that Mr Neaman is able to put it on behalf of his client is that if a Tribunal is to be critical of, or testy with, a representative, such comments ought to be coupled with some kind of reassurance, through the criticised representative, to the client sitting behind. That does not amount to any pre-conceived bias against the client. It may be that PR is an important part of the armoury of any Chairman, but there has to be a point of law for the matter to be arguable before us, and we are entirely satisfied that there is nothing which has been disclosed here which constitutes any improper approach or statement or conduct by this Tribunal, and there was much, plainly, which the Tribunal was right to criticise.[11]The second matter is a more general matter, which is the assertion, much as in Ansar No. 1 , that there was some kind of difference in approach of the Tribunal as between the two sides. Grounds 1, 2 and 5 of the Notice of Appeal relate to this, ground 1 simply being a general assertion that "from the first day and throughout the hearing, the Chairman's attitude, both to myself and, in particular, my representative was in direct contrast to that shown to the Respondent's Counsel and witnesses". Notwithstanding that general assertion, only two particulars are set out in paragraphs two and five, neither of which begin to support the case and, if indeed the general aspect was as is alleged, there would have been far more particulars capable of being given of the alleged directly contrasting approach, as was sought to be given in Ansar . The only specific point that is picked up in paragraph 19 of the Notice of Appeal was the emphasis by the Chairman that, if an allegation relating to Ellen and Mrs Eze were true, that might have serious consequences for her. We do not see any criticism of the Chairman making that point to her. Indeed, as will be seen, the substantive appeal depends upon whether such emphasis as to the seriousness of the allegation came in time.[12]The third matter is a complaint that there were, on occasion during the hearing, costs warnings given by the Tribunal to the Appellant's representative, arising out of the way in which the Appellant's representative apparently was putting the Appellant's case, and/or the case itself. There is only one incident, which the lay member recalls, in which that warning was given, and we are in no position to judge whether it was given more than once. However, what is clear is that, although there was at least one costs warning given, there was a costs application made by the Respondent which, it appears, was not acceded to by the Tribunal. This is not a case in which the Appellant was driven from the judgment seat by a costs warning, and Mr Neaman submits and accepts that the fact that the costs application, when made, was refused is indicative of the absence of bias on the part of the Tribunal. But he submits that, nevertheless, prior to such dismissal of such application, there had to have been an appearance of bias. We conclude that the dismissal of the application is the best indication that a costs warning, which can, in appropriate circumstances, not only be appropriate but necessary, was not any kind of indication of apparent bias in this case, nor can be supported in that regard.[13]The fourth matter falls under the rubric of what one might call case management. Mr Neaman did not address us today in relation to the matters referred to in paragraphs 8 and 12 of the Notice of Appeal with regards to complaints about bundles, all of which appear to us not to lie at the feet of the Tribunal but the parties. But there are complaints, in paragraphs 4, 28 and 29 of the Notice of Appeal, which, in our judgment, amount simply to a complaint of proper case management by the Tribunal. On occasion it seems the Chairman intervened in the cross-examination of the Appellant by Counsel for the Respondent to urge her to shorten her answers. That appears to us to be, whether it was seen as helpful by the Appellant or not, just the kind of exercise which, by way of case management, chairmen should be encouraged to do.[14]The more significant aspect is that sadly, as it set out in paragraph 5.23 of the Judgment, a chief witness for the Respondent, Mr Booth, died during the period of adjournment between July and October 2005, after he had given evidence in chief, and before he was cross-examined, at any rate cross-examined in full, so that the case for the Appellant could not be properly put, in cross-examination, to Mr Booth. The course that was taken was for the Tribunal, not to permit some kind of cross-examination in limbo to be carried out of an absent witness, but to accept and even suggest that what would otherwise have been the cross-examination of Mr Booth be put into a written submission, which would be handed in at the end of the hearing. It seems that the representative of the Appellant sought to put to a Dr Christodoulou, who was the Respondent's last witness, some of the issues which would otherwise have been put to Mr Booth, and that the Chairman concluded that that course was not appropriate, because Dr Christodoulou had no sufficient knowledge about the matters about which he was being cross-examined, which would, it was common ground, otherwise had been put to Mr Booth. Whether that is right or not, once again that is a pure matter of case management which cannot found the basis of any arguable appeal before us.[15]There is a subsidiary criticism, which Mr Neaman has expanded before us, that, having encouraged the putting-in of a written document, to which we have referred, and which was forthcoming (whether prepared by the Appellant herself or by the Representative is unclear to us) in the shape of a 24-page document, the Tribunal cannot have read that document, thus prejudicing the position of the Appellant. The basis for this case is that there is no express reference in the Judgment to the Tribunal having read that document. It is not, in any way, incumbent upon a Tribunal to set out in its Judgment every matter that has been read or taken notice of, and we are in no position to draw an inference that because the Tribunal does not mention the document it therefore did not read it, quite contrary to what it said it would do. The only circumstance in which we might be prepared to draw such an inference would be if there was something material in the documents which one would have expected must have been mentioned in the Judgment if it had been read, and is not. But Mr Neaman, although invited to identify such point, accepted that there was nothing in the 24-page document of that character. And therefore we are not in any way assisted in drawing an inference which we would otherwise have been extremely reluctant, in any event, to draw about an efficient and competent Tribunal.[16]There are, or were, other matters which were briefly touched on by the Appellant in her Notice of Appeal, none of which have been pursued before us today by Mr Neaman. The only further matters he did mention today were matters which do not appear strictly to be in her Notice of Appeal, but are contained in her affidavit at paragraphs 40 and 45, namely assertions about parts of the Judgment with which she disagrees. We are satisfied that if there is anything in those two paragraphs of her affidavit, and if she were permitted to pursue them, notwithstanding their not being in her Notice of Appeal, they would, at best, amount to allegations of perversity. So far as the second of them is concerned, the complaint in the affidavit at paragraph 45 is that the "Chairman demonstrated his bias by using purely hearsay advice of Mr Booth, who died prior to the time of his cross-examination… The Chairman at paragraph 5.24 of his Judgment stated that the testimony of the Respondent's witness is supported by Dr Durden. The Chairman was fully aware that Dr Durden never gave any testimony or evidence to the Tribunal." That is a reference to the fact that in Mr Booth's letter and his evidence, he recorded that the Doctor, relied upon by the Respondent, had attended on Ellen and had examined her, and had expressed an opinion as to her condition, and the causation of, or non-existence of, any injury.[17]We are entirely satisfied that the Tribunal was perfectly entitled to accept and refer to the conclusion by Dr Durden as part of its findings, and it certainly is not any evidence of perversity and, quite plainly, no evidence of bias either. In those circumstances, there is no case fit to go forward to an appeal, no reasonable prospect of success whatever for the allegation of bias.[18]We turn to the case on mala fides . Allegations were made by the Appellant in her Notice of Appeal that the findings of the Tribunal were flawed by three errors of law and we are certainly satisfied that, in relation to those first two, there is no arguable case, and they were not pursued before us today. The first was that there was no cogent evidence, upon which a finding of mala fides could be made. This is a reference to the words of Judge McMullen QC in Lucas v Chichester Diocesan Housing Association Ltd EAT/0713/04 at paragraph 39. The cogent evidence, as the Tribunal found it to be, is set out in paragraphs 5.24 to 5.31 and paragraphs 6.1 to 6.4 of the Judgment, with the consequent conclusion in paragraph 12.[19]The second basis upon which an allegation was made was that the Tribunal had not applied the correct onus of proof, it being clear both from Lucas and other cases, such as GMB Union v Fenton EAT/0484/04/RN, 12 October 2004, and Bachnak v Emerging Markets Partnership (Europe) Ltd EAT/0288/05/RN, that the onus of proof lay upon the employer in such regard. Although the Tribunal did not find it necessary to assert which way it concluded the onus of proof to lay, it is quite plain which way it applied the onus of proof. The position could not be clearer. At 5.26 the Tribunal is "satisfied that…" and in paragraph 12 the Tribunal "concludes that none of the Claimant's disclosures in respect of Ellen were made in good faith".[20]The third basis, which we are allowing through to a full hearing, is one based upon a case which appear to us to be arguable in law, but may not be necessarily right. It depends upon the dictum of

Judge McMullen QC in that same case, Lucas , at paragraph 39, where he said this:

"As in all cases where improper motivation is alleged, it should be made explicit in advance and it should be put squarely to the Claimant."
That has been elevated into a point of law by the Appellant, and by Mr Neaman today on her behalf, and it may or may not be a separate point of law but, given that Judge McMullen has so stated, whether he is right ought, at any rate, to be tested on appeal. The assertion by the Appellant here is that, although she accepts that there was a general plea in the response put in by the Respondent to the case of automatic unfair dismissal by virtue of disclosures at paragraph 15, "the Respondent submits that the Claimant did not make her alleged disclosures in good faith", the way that that answer is expanded upon does not make any reference to the case which eventually formed the basis of the firm conclusion by the Employment Tribunal at paragraph 5.26, as follows:
"The Tribunal is further satisfied that the Claimant invented an alleged injury to Ellen, namely bruising to her right upper arm, as a malicious act against Nurse Eze, with a view to getting her dismissed by the Respondent."
[21]That, it is stated by the Appellant in her Notice of Appeal at paragraph 17, was never put by the Respondent to her, either prior to her dismissal - and it certainly does not feature in the findings as to grounds for dismissal set out by the Tribunal in paragraphs 6.10 and 6.11 of the Judgment - or in the internal appeal from that dismissal, or at any time in the Tribunal, until after she had given her evidence. The 24-page notes, or submissions, to which we have referred, put in at the close of the hearing, make the point that the first time that this allegation was known to or appreciated by her was at the hearing. There is no express point made in those 24-page documents that it was after she had given her evidence, although that is what she asserts in her Notice of Appeal. In paragraph 5.23 of the Judgment, the Tribunal, without specific explanation of what they are referring to, say this:
"There was a considerable dispute as to the true factual situation regarding what took place with Ellen in the period from 10 July 2004 until her death on 20 July 2004. Further, highly relevant documentation was either not initially disclosed in the agreed bundle R1, or not brought to the attention of the Claimant while she was still employed, when that would have appeared the most appropriate way that the matter should have been dealt with."
[22]They then go on to deal with the death of Mr Booth, who could not be cross-examined because he had died prior to the time for his cross-examination. It is unclear from that statement what the stage was when the allegations, as to which the clear findings are made by the Tribunal in 5.26, arose, and indeed whether paragraph 5.23 has any reference to these allegations. In her Skeleton Argument, by way of concise submissions in opposition to this appeal, Miss Moss of Counsel, on behalf of the Respondent, say this at paragraph 10:
"In relation to the allegation of bad faith it is simply incorrect to say that bad faith is not alleged in the pleadings. Paragraphs 14 to 15 of the response do allege bad faith on the part of the Appellant. It is not explicitly suggested that the allegation of bad faith in relation to the false allegations regarding the Ellen incident was not put in cross-examination, i.e. that it was not suggested to the Appellant, for the reason she reported the Ellen incident to various people was to get Nurse Eze into trouble. If this is a ground of appeal, further witness evidence will need to be adduced to disprove this."
[23]It is not, as we read it, positively asserted by Miss Moss that the case, in that regard, was put to the Appellant in cross-examination. We have concerns about this position. We are equally well cognisant of the fact that this may not constitute, in any event, a good ground for appeal, for the reasons that we have given earlier both as to the correctness or otherwise of Judge McMullen's dictum and the precise facts of this case, but also, in the light of the alternative finding made by the Tribunal in paragraph 14 of the Judgment, that the principal reason for her dismissal was not because she had made any protected disclosures, it was because of her misconduct. That further conclusion may or may not survive independently a review as to whether there was an adequate approach by the Tribunal in relation to the finding of mala fides . But we are, as we have indicated, sufficiently persuaded that there is an arguable point, limited only to whether the mala fides point was, within the dictum of Judge McMullen in Cheltenham , put squarely to the Claimant so that she was given the opportunity of dealing with it. We say nothing as to what the consequence would be of any finding that it was not put so squarely. If it was not, we leave that to the Tribunal hearing the full appeal.[24]So far as the consequence is concerned, it is this. The only paragraphs of the Notice of Appeal which will go forward to the full appeal will be paragraphs 16, 17, 19, which, we emphasise, is not intended to be self-standing but simply part of the factual background, and 21, to which an amendment will need to be made, which we shall explain in a moment. The balance of the Notice of Appeal stands dismissed, and it is made plain that there is no appeal, and can be no appeal, in respect of the finding in paragraph 11 of the Employment Tribunal's Judgment, notwithstanding that, by virtue of paragraph 16, 17, 19 and 21, as amended, an appeal goes forward against the conclusion and decision of the Tribunal.[25]So far as the amendment is concerned, the half suggestion that lies behind paragraph 21 as it stands at the moment is that there is some kind of possibility of further evidence. The paragraph reads:
"Despite knowing that what was alleged was untrue on careful examination of the evidence, a matter in which the Chairman demonstrated that he had no interest, I knew that, given the opportunity, I could prove conclusively that the submitted evidence was fabricated."
This has an element of the now-dismissed allegation of bias, and it also has a half-suggestion that there was some kind of fresh evidence lurking in the wings. Mr Neaman has indicated that he, at present, knows of no such fresh evidence. Of course, if there were an application for fresh evidence it would have to be dealt with on its merits. We conclude that the only purpose of paragraph 21 would be for it to be replaced by an assertion, something along the lines of: If the Appellant had been given the opportunity of dealing with the case in cross-examination, which she was not, she would have been able to rebut the suggestion. If some kind of words along that kind are formulated by Mr Neaman, and I would ask him to do it before he leaves court today, then the Notice of Appeal will stand amended by the deletion of all other paragraphs and the amendment of paragraph 21, and otherwise go forward in that limited way to a full hearing.[26]What we propose to do, as I have indicated, is to include in the order a request to the Chairman and members that they answer a question, which I shall formulate in the order to ask the Chairman and the members to answer whether the allegations underlying the finding in paragraph 5.26 of their Judgment were put in cross-examination to the Appellant, and, if so, to produce the notes of evidence in that regard.