Martin v The Co-Operative Group Ltd (t/a The Co-Operative Pharmacy) (Practice and Procedure : Bias, misconduct and procedural irregularity) [2011] UKEAT 0061_10_1606

EAT
Martin v The Co-Operative Group Ltd (t/a The Co-Operative Pharmacy) (Practice and Procedure : Bias, misconduct and procedural irregularity)
[2011] UKEAT 0061_10_1606 · 2011-06-16
[1]This is an employee’s appeal from a Judgment of the Employment Tribunal sitting at Inverness, Employment Judge Mr J Hendry. That Judgment was registered on 9 August 2010 and it was in the following terms:
“The Claimant’s application for a finding of unfair dismissal was dismissed together with her other claims for the reasons given orally at the hearing on 15 July 2010.”
The facts[2]The Claimant is a qualified pharmacist. She was employed by the Respondent as the Pharmacy Manager at their premises in Lairg from 22 October 2007 until she resigned on 10 December 2009. The Claimant is Hungarian. We mention that matter purely because the first ground of appeal before us related to the Tribunal having expressly stated that fact in its Judgment at paragraph 3.[3]Put shortly, the Claimant’s claim was that she had resigned because she had been suspended by her employers when they received a grievance from two employees with whom she worked. The suspension was, she believed, in bad faith. It occurred, she stated, in circumstances where she had made certain whistleblowing complaints and the grievances on which her suspension was based were, she believed, not genuine ones.[4]The Tribunal rejected her claim and found there was no basis for her belief that the Respondent had any ulterior motive in suspending her or for her belief that the Respondent had acted in bad faith when doing so.[5]A Notice of Appeal was presented to this Tribunal on 5 October 2010. Five of the grounds articulated in that Notice of Appeal passed the sift and they can be summarised as follows. First, the Employment Judge was biased, as was demonstrated by finding in fact that the Claimant was Hungarian. That finding was said to be discriminatory. Further, the Judgment failed to find in fact that the Claimant was a qualified pharmacist. Secondly, the Employment Judge was not prepared. He had admitted that he had received a case only on the morning of the hearing and said he had had no time to read the supporting documents. Thirdly, the Judge admitted he was a member of the Co‑Operative Society and that it could be that that may influence his decision. The third ground added that on a reading of the Judgment it seemed that the Judge was unable to separate himself from being a member of the Society and had given preference to the Respondent’s witnesses. Fourthly, since the Judge did not read the original claim he did not consider what the Claimant refers to in the Notice of Appeal as her true claim. She adds that she requested compensation for lost wages and other monies. She mentions also in that ground that she sought a fair hearing. Finally, the Notice of Appeal states that the Employment Judge denied the Claimant the possibility of questioning the witnesses in full that she had cited, whilst witnesses on the other side were carefully examined.[6]The Claimant lodged an affidavit in which she confirmed that matters had been as set out in her Notice of Appeal. No further explanation of her claim of apparent bias was given. The Employment Judge and lay members were invited, in the usual way, to respond to the case of bias that was set out in the Notice of Appeal. Their responses, which are dated 2 May 2011, 4 May 2011 and 26 April 2011, were transmitted to this Tribunal in advance of the appeal and made available to the parties. The Employment Judge’s response, which is dated 2 May 2011, provides the following explanation which is relevant for our considerations. First, so far as mentioning in the Judgment that the Claimant was Hungarian was concerned, that was done since it was relevant background. The Claimant had, he noted, been recruited from Hungary to work in Lairg. It is also explained by one of the lay members that particular care was taken to check whether the Claimant required an interpreter. Care was taken to ascertain that since English was not the first language of the Claimant, that she did not need assistance. The Employment Judge also explains that he checked that the Claimant did not require an interpreter. To that extent it would, of course, be relevant for a Tribunal to record that they had noted the nationality of a Claimant, lest any subsequent questions were raised as to whether the Claimant had fully understood the proceedings.[7]So far as preparation for the hearing is concerned, the Employment Judge explains that he and the lay members had read both the ET1 and ET3 documents prior to the case starting. Otherwise in accordance with normal practice, they had only been given the productions on the morning of the hearing. His reference to that matter was for the purpose of making it clear to the Claimant that she would require to take them specifically to any documents that she wished to rely on in the course of her evidence or in the evidence of her witnesses.[8]Turning to the matter of the Co‑Op membership on the part of the Employment Judge and also, it appears, on the part of one of the lay members who was a Co‑Operative Party member, the Employment Judge explains at paragraph 4 of his response that he told the Claimant that his local shop was a Co‑Op and that he was a member of the Co‑Operative Society, although not an active one. He asked the Claimant to consider if she had any difficulty with him dealing with the case in those circumstances and reassured her that if she felt the matter gave her any cause for concern she should advise him and that it would in no way prejudice her if the case had to be taken by another judge. He allowed an adjournment for her to consider the matter and, following the adjournment, he had her noted as indicating that she was content to proceed as he had only “a little interest” in the Respondents. She was content that he continued to sit on the case. He had also noted that Mr Parr’s - Mr Parr being the lay member who was a member of the Co‑Operative Party - interest was not a concern of the Claimant.[9]The Claimant today indicated to us that she did not hear the reference to Mr Parr’s interest but we can be satisfied that it was mentioned since the manuscript note provided by the Respondent, which was a note taken by their solicitor at the time, shows that that solicitor evidently heard that it was disclosed that not only did the Employment Judge have a link with the Co‑Op, but Mr Parr also did so.[10]Reverting to the Employment Judge’s response, we note that he advises that he did understand the full extent of the Claimant’s claim in the sense that he appreciated that she was complaining that her suspension was not on genuine grounds in respect that it was against a background of her whistleblowing and that her position was that the grievance prepared by the two fellow employees was not a genuine one.[11]Insofar as that ground of appeal may relate to the Claimant’s financial claims, we observe that, at paragraphs 30 and 31 of the Tribunal’s written reasons, they refer to subsidiary claims for holiday pay and bonus pay, and find that neither claim was established on the evidence before them.[12]Turning finally to the matter of questioning of witnesses, the Employment Judge indicated that the Claimant was allowed to call the witnesses she wished to call. He deals with this at paragraph 6. We note that the Employment Judge adds at paragraph 7 the following:
“Finally I would add that the Claimant was given appropriate assistance in presenting her claim. On my suggestion the Respondents agreed to lead evidence first. although as this was a claim for constructive dismissal the Claimant might have been expected to lead evidence first. The Respondents by agreeing allowed the Claimant to see how evidence was led, documents dealt with and to focus initially on cross‑examination. It was clear that the Claimant entertained considerable suspicions about how she had come to be suspended and it was of assistance for both her and the Tribunal to see how the suspension had come about. In other words what had happened behind the scenes unknown to her. […]”
The Employment Judge adds that he felt that the Claimant was able fully to present her case and she did do so in a clear manner. The Appellant’s case[13]Before us today the Claimant presented submissions in support of her Notice of Appeal. Regarding the first ground, she indicated that she felt the reference to her being Hungarian was discriminatory and offensive to her. She came to the United Kingdom especially to work as a pharmacist because there was a need here for qualified pharmacists and she also felt the Employment Judge should have specified that she had that qualification.[14]Regarding the second ground, she indicated that she thought that the Employment Judge’s comments meant that the Tribunal had not fully prepared for the case.[15]Regarding the third ground, she submitted that insofar as the situation was that the Employment Judge had a Co‑Operative card, that meant that he got some profit when he shopped there, albeit it was a small amount, but that was, she felt, an adequate basis for her case of bias. She told us that she did decide to accept that the Employment Judge should continue to hear the case. That was because she had had a previous date for a hearing which had been put off and a new date had been given. She had had great difficulty in arranging time off work for the second hearing and she did not want to have to go through that difficulty again.[16]Regarding witnesses, she drew attention to the fact that she had had to fight for the witness order for the two witnesses who had been fellow employees of hers to be heard. She felt that the Employment Judge did not want to hear them. She referred in particular to the evidence that she wanted to take from them to the effect that their grievances could not have been genuine ones. They could not, she felt, genuinely have believed in what they were saying in those grievances against her. Otherwise, the Claimant indicated that she felt that the Employment Judge had only concentrated on the Respondent’s case. She pointed, for instance, to him indicating he would prefer that the Respondent lead when she said she would like to lead.[17]Turning to the matter of compensation, the Claimant indicated that she felt it was not fair that she had not received bonuses for two years.[18]The Claimant told us that she believed that if she read the Judgment and the Reasons and heard what was said at the end of the hearing verbally, it was slightly different. She added that there was a fair‑minded observer present in the form of a journalist who was in the Tribunal hearing room and provided a report in the local newspaper, a copy of which is contained at page 66 of the bundle before us. The Claimant referred to the European Convention on Human Rights and her right not to be discriminated against and to a fair trial. The Respondent’s case[19]For the Respondent Ms Murrie submitted that the reference to the Claimant being Hungarian was plainly simply to put the matters in context, particularly since English was not the Claimant’s first language, and it showed that the Tribunal were conscious of their duty ungarian to see to it the parties were on an equal footing. Bias was not to be inferred from that matter.[20]So far as the failure to refer to the Claimant being a pharmacist was concerned, the Employment Tribunal were not obliged in their Judgment to make reference to that fact. It was not a relevant issue in the case. Reference was made to paragraph 30(6) of the Employment Tribunal Rules 2004 , if in fact what the Claimant was complaining of here was that she wished to challenge a finding of fact or the absence of a finding of fact that did not show that a question of law rose, as was required by s.21 of the Employment Tribunals Act 1996 .[21]Turning to the second ground of appeal, Ms Murrie indicated that it was plain from the Employment Judge’s response that he and the lay members had properly considered the ET1 and the ET3. They were not required to read productions in advance, nothing in the Employment Tribunal Rules , particularly rule 14, required them to do so.[22]So far as prior membership of the Co‑Operative Society was concerned, Ms Murrie questioned whether the Claimant’s position really could be tenable. This matter was drawn to her attention; an adjournment had followed; the Claimant was not put under any pressure; there was no evidence that she had said anything about there being any problems with the Employment Judge continuing to hear the case; she had accepted that she wished the Tribunal to continue.[23]The Claimant had declared herself content to proceed. That was evident from the Employment Judge’s response and also, we observe, from the note made by the solicitor who attended the hearing at the time. Ms Murrie referred to Jones v DAS Legal Expenses Insurance Co. Ltd & Others [2004] IRLR 218 and in particular the note of what was held by the Court of Appeal at page 2 to the effect:
“The applicant had, in any event, waived his right to object to the Chairman sitting in his case by not raising any objection when given the opportunity to do so.”
[24]The Claimant’s motion by way of asking us to uphold her appeal was that she asked for the Employment Tribunal Judgment to be dismissed. The Respondent’s motion was to dismiss the appeal which failing to remit the case to a freshly constituted Employment Tribunal for a rehearing. Conclusions[25]Turning to our decision, we have given careful consideration to the arguments which were so carefully and clearly advanced by Ms Martin this morning and we have taken account of the Respondent’s response to them, as contained in Ms Murrie’s submissions. Although there are a number of grounds of appeal, they amount essentially to one proposition in law, namely that in all the circumstances it can be concluded that the Tribunal was biased. That case is, we observe, one of apparent not actual bias.[26]The mainstay of the claimant submission that there was apparent bias appears to be that it arises principally from the Employment Judge’s membership of the Co‑Operative Society and the lay member’s membership of the Co‑Operative Party, but that mainstay is, we appreciate, presented by the Claimant as supported by the various other matters referred to in the grounds of appeal.[27]The test to be applied is that which was articulated by Lord Hope of Craighead in the case of Porter v McGill [2002] AC 357, namely that apparent bias exists if, in all the circumstances, a fair‑minded and informed observer would conclude that there was a real possibility that the Tribunal was biased. We are readily satisfied that such an observer would not so conclude in this case. The various circumstances relied on do not lead to that conclusion.[28]So far as the reference to the Claimant being Hungarian is concerned, that is, to our mind, neutral and, indeed as suggested by Ms Murrie, can be explained by the Tribunal’s anxiety to check that the Claimant was comfortable with the proceedings being conducted in English. It is also simply background to the position whereby the Claimant was working in Scotland.[29]So far as recording that the Claimant was a qualified pharmacist was concerned, we do not accept that the Tribunal were obliged to do so. We can understand why in this case they did not, given that her qualification was not relevant to the issue they had to consider. In any event, however, we observe that the impression gained from what the Tribunal do find is that the Claimant must have been a qualified pharmacist working, as she was, in a small pharmacy in the north of Scotland as its manager.[30]So far as the allegation that the Employment Judge was not prepared was concerned, we accept what we are told by the Employment Judge to the effect that he and the lay members had in the usual way read the ET1 and ET3 in advance. We would not expect to them to have read the productions in advance and, indeed, we are aware that many Judges understandably consider it better not to do so, lest they introduce into their own thinking material which does not ultimately become part of the evidence in the case. We have read the Employment Judge’s response and see that what he was seeking to explain to Ms Martin was that she would need specifically to refer to any documentary material which she wished to rely on in the course of the taking of evidence, otherwise it would not form part of her case.[31]Regarding the issue of membership of the Co‑Operative Society, we would begin by observing that the link here was so minor that we are not at all convinced that it was something that the Employment Judge required to raise at all, but given that he did so it needed to be dealt with. The Employment Judge has followed proper procedure by explaining the position to parties, by making it clear to the two parties, including the Claimant, that they had an opportunity to object to that Tribunal hearing the case if they wish to do so and by allowing an adjournment for parties to consider their position. We observe that following the adjournment the Claimant accepted that the Tribunal should hear the case and she was content that it proceeded. That being so, as explained in the case of Jones v DAS Legal Expenses Insurance Co. Ltd & Others she is to be taken to have abandoned any rights she had to object to that Tribunal hearing the claim.[32]As to whether the Tribunal did understand the nature of the Claimant’s claim and considered it, so far as that issue is concerned we are satisfied on a reading of the Judgment alone that they did so. We are reassured by what is explained by the Employment Judge in his response that the Tribunal did have the relevant issues in mind and had regard to them.[33]So far as limitation of the questioning of witnesses is concerned, we understand from the submissions made this morning that the Claimant’s concern was that she was not allowed to explore with the two witnesses whether or not the matters alleged in the grievance that had been written by them were well‑founded or whether or not they had fabricated their allegations, whether or not they were telling the truth, and so on. The problem for her with that argument is that that was simply not an issue in the case. The issue was whether or not the Respondent Employer was in good faith when the decision was taken to suspend her and that was a matter that required to be examined by considering what was the state of the Respondent’s knowledge. To that extent we can understand why the Employment Judge limited the questioning only to whether or not those witnesses had been coached or encouraged by their employers to make the complaints that they did.[34]In all these circumstances, as we have indicated, we are not satisfied that this appeal is well‑founded and we will accede to the motion made by Ms Murrie and dismiss the appeal.[35]Before we depart we would add that we fully appreciate, Ms Martin, that you will be disappointed in this outcome. We would reiterate our thanks to you for presenting your case so clearly and cogently today, but, as we say, we cannot, on the issue of law that is before us, uphold the appeal.