DORBCREST HOMES LTD v MR A P FISHWICK [2010] UKEAT 0507_09_0607

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2010] UKEAT 0507_09_0607Case No Appeal No. UKEAT/0507/09Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
DORBCREST HOMES LTDAPPELLANTMR A P FISHWICKRESPONDENT
Before
Mr Justice UnderhillDate 6 July 2010
[1]APPEARANCES For the Appellant MR PETER MARATOS (Representative) For the Respondent MISS HELEN PARKINSON (Solicitor) North West Employment Law 311 Doncaster House Moorland Gate Chorley PR6 9EA SUMMARY PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity Employment Judge wrongly purported to decide a claim of unfair dismissal when she had no jurisdiction because sitting alone – Decision revoked on review – Same Judge chairs fresh (full) Tribunal – Application that she recuse herself dismissed. Held : Judge should have recused herself – There was apparent unfairness when a three-person tribunal is chaired by a person who has already expressed a definitive opinion on the issues. THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT) This appeal arises in rather unusual circumstances which I can summarise as follows.(1) The Claimant was employed by the Appellant company as a forklift truck driver. By a letter dated 26 September 2008 he was given formal notice of lay-off in accordance with an express term in the contract of employment (though it may be that the lay-off did not in fact commence until 3 October). An employee who has been laid off for four weeks may, by section 148 of the Employment Rights Act 1996 , apply for a redundancy payment by giving notice of intention to claim. The right is not dependent on his having been dismissed. It appears, though we have not ourselves seen the documents, that the Claimant gave such notice on 31 October and that on 7 November the Appellant gave what purported to be a counter-notice under section 149 of the Act.(2) On 8 December 2008 the Claimant began proceedings in the Employment Tribunal seeking a redundancy payment in accordance with the provisions to which we have just referred. He did not make any other claim in the ET1: specifically, he did not tick the box claiming for unfair dismissal. It was indeed, for the reasons we have already given, unnecessary that he should claim to have been dismissed at all, and it is not clear that he intended to make such a claim. In box 4.1 on the ET1 he did apparently state that his employment had terminated on 26 September, but there had at that point been neither an express dismissal nor an indication by him that he was resigning; and we think that that date was meant simply as the date on which he was given notice of lay-off. That point appears to be accepted by Ms Parkinson who has appeared for him today. The Appellant in its ET3 disputed the Claimant's entitlement to a redundancy payment. Among other things, it stated that he had not resigned, or at least not unequivocally, until 16 December 2008, when he wrote a formal letter of resignation.(3) The claim came on for hearing in the Manchester Employment Tribunal on 12 February 2009. It was listed before Employment Judge O'Hara sitting alone. That was permissible because a claim for a redundancy payment, being made under section 163 of the 1996 Act, is among the categories of case covered by section 4 (3) (c) of the Employment Tribunals Act 1996 . The Claimant appeared in person; the Appellant was represented by Mr Maratos of Peninsula Business Services, who also appears before us today.(4) Shortly before the hearing, the solicitors then representing the Claimant (though, as we say, they did not appear for him at the hearing) wrote to the Tribunal seeking permission to amend the ET1 to introduce a claim of unfair dismissal. The Appellant objected. The Regional Employment Judge adjourned the application to the hearing. At the hearing Mr Maratos repeated his objection to the application; but he also took the point that if the amendment were granted the claim for unfair dismissal could not be heard by the Judge on that occasion because she would have no jurisdiction to determine a claim of unfair dismissal sitting alone. The Judge decided to allow the amendment. She made it clear that she could see no substantive reason why the claim for unfair dismissal should not proceed on that occasion. She thought that the issues under the redundancy payment claim substantially overlapped with those under the unfair dismissal claim. She also thought that the Appellant should be sufficiently in a position to deal with both and that it would be more efficient and save costs and delay all round if they were heard there and then. She accepted that she could only proceed in that way with the Appellant's consent, in accordance with section 4 (3) (e) of the 1996 Act, which provides that a claim which would not otherwise be within the terms of section 4 (3) can be heard by a Judge alone when the parties have given their written consent to that course being followed.(5) It is not in fact clear from any of the subsequent Reasons, to which we will in due course be referring, exactly what happened about the giving of consent. However, Mr Maratos tells us, and this seems consistent with the documents that we have, that he did in the end reluctantly accede to the Judge's pressure and say, on instructions, that he agreed to her hearing the claim alone and on that occasion. Both he and the Judge appear to have overlooked at that point the requirement that any such consent be given in writing. Neither he nor the Claimant was asked to, or did, give any such written consent. The hearing accordingly proceeded, and the Judge held that the Claimant had indeed been unfairly dismissed and awarded him compensation of some £8,000. It seems that she gave her decision orally at the hearing, though no Judgment was sent to the parties until 2 March 2009.(6) On 24 February 2009 Mr Maratos sought a review of the decision, and that application was repeated on 6 March following the promulgation of the formal Judgment. One of the grounds for the review was that the Tribunal was not properly constituted because neither he nor the Claimant had given written consent to the Judge sitting alone. That was hardly a very attractive stance for him to take, given that he had, however reluctantly, expressly given his oral consent. We are not, however, on this appeal concerned with the question of whether he was entitled to take that stance, and Mr Maratos does say that his volte-face may be excused by the fact that he felt that he had been put under great pressure by the Judge to consent to a course which he believed was wrong.(7) Mr Maratos also sought written Reasons for the decision of 12 February. These were sent to the parties on 2 April. We need not summarise them in detail. They included at paragraph 7 a list of the issues which the Tribunal believed fell to be determined and at paragraph 8 a number of findings of fact. The reasons for the decision are given are paragraphs 15-27. Paragraphs 15-17 give the reasons for the decision to allow the Claimant to amend in order to make a claim for unfair dismissal. Paragraphs 18-21 address questions about the lay-off and about the Claimant's entitlement to a redundancy payment under the statutory provisions to which we have referred: in particular there was a finding at paragraph 20 that the Appellant's formal counter-notice was invalid. Paragraphs 24-27 deal with the claim of unfair dismissal. It should be noted, however, that although the Judge decided points which would have been relevant to the original redundancy payment claim, her eventual Judgment as promulgated said nothing about that claim and was confined to the finding that the Claimant had been unfairly dismissed.(8) In response to the Appellant's request for a review, the Judge directed a review in accordance with rule 36 of the Employment Tribunals Rules of Procedure . The Claimant had by now instructed a firm of solicitors called North West Employment Law, and by letter dated 5 March 2009 they sensibly agreed that the finding of unfair dismissal would have to be revoked. Although they did not say so in terms they plainly accepted that there was no answer to the point that the Tribunal was not properly constituted, however unattractive it might be for the Appellant to be taking that point.(9) A review hearing took place on 12 May 2009. It was attended by Mr Maratos but not by the Claimant or his solicitors, who again sensibly took the view that there was no point in their attending a hearing where they had already consented to the relief being sought. The Judge duly revoked the unfair dismissal decision and ordered a re-hearing before a full tribunal. She subsequently on her own initiative supplied written Reasons. These run to some eight pages. We are bound to say that we cannot see why any detailed consideration was necessary since the application was unopposed and the point, good or bad, was a very short one. However, one point of importance was made by the Judge. She was clearly of the view that her findings in the earlier decision were only vitiated to the extent that they bore on the unfair dismissal issue. Her order of 12 May purports to "revoke" only the decision itself and certain identified paragraphs in the Reasons; most obviously paragraphs 24-27. It appears that at the review hearing she went through the Reasons for the February decision with Mr Maratos and got his agreement to which parts of it survived and which did not. (We should say that we are not sure that the Judge's approach was correct. If she had in the earlier decision made an express finding on the redundancy payment claim, which it was unquestionably within her jurisdiction to hear alone, then no doubt all findings made for the purpose of that claim would be binding as between the parties and could be invoked, so far as relevant, in any subsequent claim for unfair dismissal. But the earlier decision did not formally decide the redundancy payment claim. As we have said, the only decision was on the claim of unfair dismissal, which she revoked. In those circumstances we are by no means sure that the findings made en route to that decision were formally binding. However, there has been no appeal against the decision of 12 May. Mr Maratos, in his amended grounds of appeal against the subsequent decision to which we will shortly come, may possibly be taken to be wishing to re-open the earlier decision, but we cannot believe that it would be right to permit him to do so.)(10) The Claimant's claim of unfair dismissal was duly re-listed before a Tribunal consisting of Employment Judge O'Hara and two lay members on 3 June 2009. Mr Maratos again appeared for the Appellant; the Claimant was represented by Ms Parkinson. The hearing began by Mr Maratos asking for permission to raise a previously unpleaded point about jurisdiction on the basis of section 32 of the Employment Act 2002 - that is, essentially, that the Claimant had raised no grievance about the matters on which he now sought to rely as giving rise to a constructive dismissal. The point was argued before the Tribunal at some length and was eventually decided in the Claimant's favour; indeed, the Tribunal regarded it as misconceived and awarded the Claimant £360 by way of costs on the basis that two hours had been wasted. That point being resolved, the Tribunal was ready to consider the substantive issues; but Mr Maratos at that point asked Employment Judge O'Hara to recuse herself on the basis that it was unfair for her to sit having already heard and purported to determine the unfair dismissal claim in February 2009. The Tribunal declined that invitation and the hearing proceeded. The Claimant was, again, found to have been unfairly dismissed and on this occasion was awarded compensation of £17,016.10. The Appellant sought written Reasons and they were sent to the parties on 29 June 2009.[2]This is an appeal against the decision of 3 June 2009 on the sole ground that Judge O'Hara was wrong not to recuse herself. The appeal was originally rejected by HHJ Ansell on the sift but the Appellant submitted a fresh Notice of Appeal in accordance with rule 3(8) of the Employment Appeal Tribunal Rules 1993 and HHJ Peter Clark directed a preliminary hearing. At that hearing, chaired by HHJ Richardson, the case was directed to proceed to a full hearing. Judge Clark put in motion the procedure under paragraph 11 of the Practice Direction. Accordingly we have before us affidavits from Mr Maratos and Ms Parkinson, together with the comments of the Employment Judge and the lay members.[3]In our view the Appellant's objection to Judge O'Hara chairing the hearing on 3 June 2009 was well-founded. The Appellant in the Notice of Appeal places particular emphasis on an incident during that hearing when Mr Maratos says that the Claimant gave a clearly damaging answer in cross-examination and the Judge intervened in order to, in effect, save him by referring to her notes of the previous hearing, which appeared to show that he had given a less damaging answer on that occasion. Much of the evidence and comments pursuant to the paragraph 11 procedure were directed to that incident. In our view, however, all that is peripheral. The fundamental point is more straightforward. The Appellant was entitled to a hearing by a Tribunal consisting of three members, each of whom was obliged to reach his or her own view on the issues on the basis of the evidence before them. In the event one of the members of the Tribunal constituted to hear the claim - specifically, the Chairman - had already not merely expressed an opinion but given a formal Judgment on the very points which the three members of the Tribunal now had to decide. To be specific, at paragraphs 24 of the Reasons for the February decision the Judge had already considered and decided:(a) whether the Claimant was in fact constructively dismissed;(b) what the reason for that dismissal was; and(c) whether it was unfair. Those were the principal issues, at least as regards liability, for the hearing on 3 June 2009, though there was also an issue as to "contributory conduct". In our view, a fair-minded and informed observer would believe that there was in those circumstances a real risk that the other two members would feel inhibited in coming to a different conclusion from that which the Judge had already, and apparently definitively, expressed.[4]We should make it clear that we do not say that there was in fact any such inhibition on the part of the lay members, still less that the Judge sought in any way to pressure them. Indeed, it is fair that we should record that one of the lay members in his comments emphasises that he and his colleague were "experienced and were capable of expressing a view independent to that of the Judge"; that he made his decision purely on the evidence given at the hearing; and that the fact of Judge O'Hara's previous involvement played no part in the decision. The Judge herself makes a similar point in her comments. It is, however, axiomatic that in cases of this kind appearances are as important as reality. The decision of the House of Lords in Lawal v Northern Spirit Limited [2003] ICR 856 illustrates, though the detailed facts were very different, how jealously the courts regard the importance of lay members not appearing to be liable to be unduly influenced by the Judge with whom they are sitting.[5]We have been referred to no authority on exactly similar facts, and our view is reached as a matter of principle and for the reasons that we have given. We note, however, as some (albeit possibly distant) analogy, that when in the notorious Pinochet case the House of Lords felt obliged to conduct a full re-hearing of the appeal because the fairness of the first hearing had been vitiated, it was thought important that a completely fresh committee sit on the second occasion: see R v Bow Street Metropolitan Stipendiary Magistrate, ex p. Pinochet Ugarte (no 2) [2000] 1 AC 119 . As Lord Browne-Wilkinson put it, at page 137 D - E:
"It was appropriate to direct a rehearing of the appeal before a differently constituted committee so that on the rehearing the parties were not faced with a committee four of whom had already expressed their conclusion on the points at issue."
That seems to us to be the essential point.[6]Mr Maratos also argued that the fair-minded and informed observer would have cause to doubt whether the Judge herself could approach the matter afresh. That may or may not be true, but it is not the essence of the point. This is not a case where there has had to be a re-hearing because of some misdirection or fresh evidence. In such cases the case may often be remitted to the same tribunal, whether that happened to be a Judge alone or a Judge with lay members - though in each case a judgment has to be made as to whether, in the particular circumstances of the case, the tribunal can fairly be expected to approach the matter with a fresh mind. The problem in this case is different. It is rooted in the fact that the Judge had already committed herself on issues to which the other members of the Tribunal were, and were expected to, come afresh.[7]The Judge, in giving her reasons for rejecting the application that she recuse herself, said that Mr Maratos had failed to give any detailed grounds for the application. As she put it at paragraph 22 of the Reasons:
"Although the Employment Judge in this case invited Mr Maratos to make clear the grounds on which he made this application for a recusal, he simply said that in his submission fairness required that a different Judge hear the case. When invited to say that he was making an application that the Employment Judge was biased, Mr Maratos was at pains to make it clear that he did not make the application on this basis."
If that is a fair summary of Mr Maratos' submissions, it may be that he is indeed open to criticism for not elaborating his submissions rather further. But the truth is that this was a straightforward and obvious point which did not need elaboration, and it should have been sufficiently clear what the nature of the objection was. As to whether it should be described as an objection of "bias", we suspect that Mr Maratos in apparently disavowing that label was intending simply to make it clear that he was not alleging actual bias: advocates normally disavow any such allegation and put their case on the basis only of apparent bias. Ms Parkinson, whose submissions throughout have been fair and helpful, acknowledged that that was all that she had understood him to be saying. The truth is that labels are not essential. We are concerned with questions of substantial and apparent fairness.[8]Ms Parkinson had no answer to the fundamental difficulty which we have identified, and we do not believe that there is one. She did, however, make a submission about waiver. She argued that if Mr Maratos was going to take a point about the constitution of the Tribunal at the hearing of 3 June 2009, he should have done so straightaway instead of waiting until the jurisdiction point had been disposed of. He could not choose to have one of his arguments decided by the Tribunal and the others not. But we accept Mr Maratos' submission in response that there is a distinction between the jurisdiction issue and the substantive issue. The former was one which the Judge had not heard before and on which the problem about her having already committed herself simply did not arise. We see the good sense in dealing with the jurisdiction point first, before any objection as to the constitution of the Tribunal for the purpose of the substantive point fell to be considered. If Mr Maratos had succeeded, then there would have been no need for an adjournment, whereas if he had objected to the constitution of the Tribunal from the start, and again had succeeded, the case would have had to be adjourned and the chance of winning there and then on his jurisdiction point lost. It might, presentationally, have been better if he had at least trailed the fact that he was going to object at a later stage, if necessary, to the constitution of the Tribunal; but his omission to do so cannot, it seems to us, give rise to any waiver.[9]We must therefore allow this appeal and remit the claim of unfair dismissal to be heard by a fresh Tribunal. We should make two points by way of clarification.[10]First, there is, as we have said, no appeal against the order of 12 May 2009. That means that the Tribunal will be bound by those findings of fact and law in the decision of 12 February which were not explicitly revoked by the Judge in her order of 12 May. So far as we can see, that will give rise to no great difficulty. The factual and legal points decided by the Judge are clear. That is subject to one exception. The Judge, in her reasons for her decision of 12 May, says at paragraph 29 that:
"The finding that the Claimant was dismissed was part of the decision in relation to the redundancy payment claim."
That, with respect to her, seems to be wrong. It was certainly not a legally necessary part of the claim, for the reasons we have already given; and, having been carefully through the decision with the parties, we can find no finding in those parts of the Reasons which survive on the question of whether the Claimant was dismissed. That issue, therefore, will in principle be live at the remitted hearing.[11]Secondly, the very argument with which Mr Maratos defended himself against the submission of waiver means that he cannot object to the decision of the Tribunal dismissing his point under section 32 of the 2002 Act. That point should be treated as having been definitively decided and cannot be re-opened; the same, of course, applies to the ancillary decision as to costs.