MR FORBES ROBERTSON T/A 19TH GOLF THEME BAR v APPELLANTS (RESPONDENTS) [2007] UKEAT 0035_06_0702

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2007] UKEAT 0035_06_0702Case No Appeal No. UKEAT/0035/06Venue 52 MELVILLE STREET, EDINBURGH, EH3 7HF
Between
MR FORBES ROBERTSON T/A 19TH GOLF THEME BARAPPELLANTS (RESPONDENTS)MS M HENDRIERESPONDENT (CLAIMANT)
Before
Lady SmithDate 7 February 2007
[1]APPEARANCES For the Appellant Mr Forbes Robertson, the Appellant in person. For the Respondent Mr B Murphy, Solicitor Messrs A C White Solicitors 23 Wellington Square Ayr KA7 1HG SUMMARY At a hearing on a respondent's application for review of a decision to refuse his ET3 as late, a lay member in training was present and retired with the Tribunal Chairman at the point of deliberation. Laughter was heard emanating from chambers during the adjournment. The Chairman and lay member returned and the review application was refused. The respondent appealed on grounds of unfairness; the lay member should not have retired with the Chairman and the laughter was indicative of his case not having been taken seriously. Appeal refused. THE HONOURABLE LADY SMITH Introduction The issue that is raised in this appeal concerns the way in which a tribunal hearing was conducted. The appellant, to whom I will refer as respondent, alleges, in essence, that impropriety occurred. Background[2]On 18 October 2005, a copy of the claimant's claim was sent to the respondent. No response was entered within the ensuing twenty eight days. A default judgment relating to liability was, accordingly, issued by the Employment Tribunal Chairman, Mr Murphy, on 28 November 2005 and a remedies hearing was fixed for 19 December 2005. By letter dated 29 November, 2005, the respondent wrote to the Tribunal in the following terms:
"I would like to apologise for my delayed response regarding the above matter. Unfortunately my colleague, who was dealing with this matter on my behalf has been off sick, and is now on holidays. Therefore I was unaware of this delay until today. I would like to confirm I shall be attending the above hearing and intend to cite witnesses to support my case."
Thereafter, on 8 December 2005, the respondent wrote to the Tribunal office requesting a review of the default judgment and enclosing a completed form ET3 in which the claimant's claim was resisted.[3]The hearing that had been fixed for 19 December 2005 sat, accordingly, initially as a review hearing before Mr G I MacPherson, Chairman, sitting alone. The Chairman was, however, accompanied by Mr Garry Hearn, who was training to be a lay member of Employment Tribunals. He attended to observe the proceedings, as part of his training, as was explained to parties by the Chairman at the start of the hearing. Mr Hearn had no prior experience of the hearing of review applications. The Chairman, in written comments provided to this Tribunal dated 27 July 2006, states that he also advised that Mr Hearn would be retiring with him. The respondent's position is, however, that he was not told that that would happen nor was he given an opportunity to object to his doing so. I have no reason to disbelieve the respondent's assertion and propose to proceed on the basis that one way or another, it was not effectively communicated to him in advance that Mr Hearn was going to retire with the Chairman and he was not given an opportunity to object to that happening, as he should have been[4]The respondent and the claimant's solicitor, Mr Mowat, both addressed the Chairman in respect of the review application. The Chairman then retired to his chambers to deliberate. He was accompanied by Mr Hearn. Whilst they were in the Chairman's chambers, laughter was heard to come from the room by the respondent and two of his witnesses that had attended that day. All three of them were waiting in the respondents' witness room which was adjacent to the chambers. They have provided affidavits which state that they heard 'great laughing and joking' coming from the room. At the hearing before me, Mr Robertson estimated that, in total, it lasted for about four or five minutes.[5]Whilst the Chairman's comments state that he has no recollection of there being laughing and joking in his chambers during the deliberations adjournment , given the content of the respondent and his witnesses' affidavits and the fact that Mr Hearn allows for the possibility of there having been some laughter between them, I will proceed on the basis that there was some laughing and joking between the two men during the deliberation adjournment.[6]The Chairman's comments also explain that Mr Hearn was present in a learning capacity only. He recalls discussing with him the procedure and the relevant issues for consideration at such a hearing. Mr Hearn states that the Chairman 'talked him through' his deliberations but he gave no input into the decision making process; he did not have the knowledge, experience or authority to do so.[7]After about half an hour, the Chairman returned to the hearing room and gave his decision orally, reading from a note that he had prepared. It was in the following terms:
"Having carefully considered the submissions made by both parties, I have decided that it is appropriate to refuse the respondent's application for review of the default judgment dated 28 November 2005, not being satisfied that there was good reason for the response (form ET3) not having been presented within the applicable time limit which expired 15 November 2005, and further , not being satisfied – having considered the terms of the response (form ET3) dated 9 December 2005 – that the respondent has a reasonable prospect of successfully responding to the claim. Having refused to accept the late response (form ET3), the respondent is not entitled to take any further part in the proceedings (except to the extent defined in Rule 9 of the Employment Tribunals Rules of Procedure 2004). The case will now proceed as a remedy hearing at which the remedy to which the claimant is entitled will be determined."
[8]The reference to the lack of a reasonable prospect of successfully responding to the claim would seem to have been based on the respondent's acceptance that he had not followed the statutory disciplinary or dismissal procedures required of him, prior to dismissing the claimant.[9]The hearing then continued as a remedies hearing and the respondent was ordered to pay £4,550 in respect of the claimant having been unfairly dismissed, £228.20 as holiday pay, £1,895 as a 50% increase in the awards made in respect of the respondent's failure to comply with the relevant statutory dismissal and disciplinary procedures and £760 in respect of his failure to provide the claimant with a statement of her employment particulars. The Appeal[10]In his notice of appeal, the respondent states that he was not asked whether or not he objected to Mr Horne ( sic ) "leaving the room with the Chairman to decide the outcome of the hearing". He also states that once they entered the room where the judgment was to be decided, hilarity and joking was heard coming from it; that is a matter which, as I have indicated, is confirmed in an affidavit from him and his two witnesses. Mr Hearn's written comments, which are contained in a letter dated 26 July 2006, allow for the possibility of their having been "mild laughter" between them but regarding other issues, not the decision in the case. The Chairman's comments refute any suggestion of his conduct in chambers involving anything light hearted or frivolous and states that he conducted himself in a professional and business like manner as befitted the judicial function that he was performing. They also express surprise that the respondent did not raise any objections when he returned to deliver his decision if, at the time, he felt there was a problem.[11]The respondent asserts in his notice of appeal that his case was evidently not taken seriously and that the presence of Mr Horne ( sic ) influenced the Chairman against him.[12]In oral submissions before me, the respondent stressed that he felt that his case had not been taken seriously. He felt undermined and humiliated in front of his staff, Mr and Mrs Smith, who were in the room with him when the laughter was heard. He also considered that he should have been asked if he objected to Mr Hearn accompanying the Chairman when he retired to deliberate. He did not raise any objection or make any criticism when they returned after the adjournment because he felt:
"Well, what could I do?"
[13]For the claimant, Mr Murphy submitted that there was no apparent bias. A neutral bystander would not have thought there was anything untoward. How could proper training take place if lay members in training were not to accompany Chairman and have matters explained to them in the way that occurred here?[14]The tenor of the Tribunal's judgment was that care had been taken. For example, a short adjournment had been allowed at an early stage in the review hearing to allow the respondent to familiarise himself with the relevant rule (paragraph 8). The whole approach taken by the Chairman was, he submitted, one that involved a proper, judicious attitude. Full and proper consideration did appear to have been given to the application for review. The relevant rules had been considered and due consideration had been given to the nature of the explanation for the lateness of the ET3 and to the potential defence to the claim. There was nothing in the judgment to indicate that the Chairman had approached matters in a frivolous or light–hearted way. Further, the respondent had not taken objection at the time. Finally, to suggest that the laughter heard was about the respondent's case as opposed to the "101 other things" to which it could have related was to make a massive quantum leap. There would be impossible problems with what happened in retiring rooms if the appeal was allowed. Discussion[15]I wish to make it clear at the outset that I accept that the respondent feels genuinely upset and concerned as a result, principally, of having heard laughter emanating from the Chairman's chambers and also, to some extent, by the fact that Mr Hearn was present during deliberations in circumstances where he had not been given the opportunity to object to his presence there. It seems that he would have objected had he realised that he could do so. I also find it entirely understandable that he did not raise his concerns with the Chairman when he returned to deliver his decision. It would have been difficult for a lawyer to do so let alone a layman. The fact of his not having sought to air his concerns at the time does not lead me to conclude either that he is wrong about the laughter or the failure to communicate effectively to him that Mr Hearn would be present during the deliberation process but not so as to offer input into it , only for training purposes. Further, it does not lead me to doubt the genuineness of his reaction that his case was not being taken seriously. It is most unfortunate and regrettable that that reaction has been provoked by what occurred.[16]The respondent asserts a right to have had his application considered properly, fairly and impartially and in a judicial manner. He is quite right about that. That was indeed what he was entitled to. The question raised, however, is not what was the nature of his entitlement but whether the circumstances were such as to indicate that it was not afforded to him.[17]The respondent asserts improper conduct on the part of the Chairman in whose hands alone lay the power of decision in his case. He was bound not to allow himself to be influenced by any irrelevant matters; to take account, for instance, of any view Mr Hearn may have had as to whether or not the review application should be granted would have been to take account of an irrelevant matter. He was also bound to approach his deliberations in a judicial manner, according both parties' submissions appropriate respect and reflecting carefully on what each had said in their address to him.[18]In considering whether or not the conduct complained of deprived the respondent of the right to which I have referred, it seems to me that the test to be applied in this case is the same as would fall to be applied where apparent bias is alleged. That test is as explained in the case of Porter v Magill 2002 AC 357 namely that the relevant 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.[19]In this case, given the nature of the respondent's complaint, what is to be asked is whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the Chairman allowed himself to be influenced by a view held by Mr Hearn or failed to afford appropriate respect to and reflect carefully on what had been submitted to him by the respondent.[20]It seems to me that a fair minded and informed observer would have had regard to the following significant facts: the Chairman had openly explained who Mr Hearn was and what was the purpose of his presence at the hearing - the Chairman's role vis a vis Mr Hearn was a teaching role - Mr Hearn had no prior knowledge or experience that he could have brought to bear in any decision making process - both parties were invited to and did make submissions in respect of the review application - no criticism was made of the way in which the Chairman conducted the hearing in court; it seems to be accepted that it was conducted in a professional manner. The respondent did not, for instance, suggest that he was not permitted to put forward such arguments as he sought to advance and the Chairman allowed him an adjournment to familiarise himself with the relevant rule - the Chairman was an experienced Chairman and would have been well aware that the decision on the review application was a matter for him - the presence of Mr Hearn in his chambers during his deliberations does not of itself give rise to any necessary inference that he was influenced by anything said by him just as no such inference would arise if, for instance, a member of the Tribunal staff had gone into his Chambers during the adjournment - since Mr Hearn was in training, the Chairman had a responsibility to explain to him the nature and purpose of the hearing and it would have been open to him, if he thought that it would be helpful, to explain to Mr Hearn how he intended to respond to the application and why - the Chairman took time to consider his decision from which it can properly be inferred that the decision was not rushed - the fact of some laughter having been heard does not give rise to any necessary inference that the decision was not carefully considered and properly taken; it is as consistent with there having been a light hearted exchange between the two men regarding something that had nothing to do with the case. The fair minded and informed observer would allow for two men, in the course of half an hour, talking about matters which had nothing to do with the case and for the possibility of either or both of them finding those matters amusing; such an observer would not assume that they would confine themselves to discussing the case throughout the time that they were in the chambers - the decision made was one which was open to the Chairman in his discretion, in all the circumstances of the case; the respondent was responsible for seeing to it that his response was timeously lodged and the fact that he did not check that the member of his staff whom he had instructed to deal with the matter for him did not put him in a strong position in making the application. Further, as explained by the Chairman, he appeared, even on the facts as put forward by him , to be in a weak position on the merits of the claim. He had not, for instance, followed either of the statutory disciplinary or dismissal procedures. In short, the prospects of the respondent succeeding in his review application were not strong and it is not at all surprising that the outcome was that it was refused; the decision reached by the Chairman was not a surprising one in the circumstances.[21]On these facts, I do not see that such an observer could conclude that there was a real possibility of bias or other impropriety. The appeal will, accordingly, be dismissed. Expenses[22]Mr Murphy made an application for an award of expenses, the claimant having incurred a legal aid contribution of £490 in connection with these proceedings. He submitted that the bringing of the appeal was entirely misconceived. He also referred to a letter from this Tribunal to the respondent dated 7 December 2006 which was written following the adjournment of a previous hearing due to the respondent's illness. That letter was in the following terms:
"I refer to the hearing of your appeal today which has been adjourned in view of your illness. The Respondent's solicitor, who attended the Employment Appeal Tribunal today, has indicated that he will be looking for expenses in this appeal. The President noted that, whilst it is entirely a matter for you whether you wish to continue with the appeal or not, you may wish to carefully consider the responses of the Employment Tribunal Chairman and Mr Hearn when making that decision."
[23]The respondent said that when he read that letter, it had made him feel that the appeal had already been decided but he still felt strongly about the matters raised in his appeal and decided to go ahead. He had incurred the cost of having affidavits prepared.[24]For the avoidance of doubt, the respondent should be reassured that the outcome of this appeal was not decided in advance of the writing of this judgment.[25]As regards the matter of expenses, I am not satisfied that the appeal was wholly misconceived. The respondent's concern was genuine and there were real questions to be asked and answered to the extent that his grounds of appeal remained reasonable throughout. The application for expenses is accordingly, refused. Disposal[26]I will pronounce an order dismissing the appeal, and refusing the application for expenses.