Westlb AG London Branch v Pan (Practice and Procedure : Bias, misconduct and procedural irregularity) [2011] UKEAT 0308_11_1907

EAT
Westlb AG London Branch v Pan (Practice and Procedure : Bias, misconduct and procedural irregularity)
[2011] UKEAT 0308_11_1907 · 2011-07-19
[1]This expedited appeal has been listed urgently today because it concerns the composition of the Employment Tribunal which will hear an 8-day case listed to commence at the Employment Tribunal sitting in Central London tomorrow, 20 July.[2]The case is brought Mr Pearse Pan against his former employers WestLB AG London Branch (“the Bank”). Employment Judge Wade chaired a panel which dealt with, and ultimately granted, an adjournment of the hearing in January, listing it to continue on 20 July. On 7 June solicitors for the Claimant, Mr Pearse Pan, applied in effect for the recusal of the Employment Judge on the grounds of bias. On 13 June the Employment Judge said that she did not consider that the conditions for recusal had been formally satisfied. Nevertheless she decided that the hearing should take place before a different panel. On 5 July she confirmed this decision. Against these decisions the Bank appeals.[3]I should make one important fact clear. Although the Bank appeals against the decision of Employment Judge Wade, it does wish the hearing to proceed tomorrow. There is some doubt about the availability of the original panel. If the original panel is not available the Bank will (regardless of the result of the appeal) agree to a new panel tomorrow. The case should therefore not be adjourned from the list tomorrow by reason of this appeal. The background facts[4]Mr Pan was employed by the Bank from 15 January 2007 until his resignation on 6 December 2010. He has brought two sets of proceedings against the Bank. In the first set, which he began in March 2010 while he was still employed, he claims to have been subjected to race discrimination, harassment and victimisation. In the second set, which he began in December 2010, he makes additional allegations of the same kind and also says that he was constructively and unfairly dismissed. These were brought on for hearing together with a time estimate of 8 days commencing on Monday 10 January.[5]On Monday 10 January, however, Mr Pan did not attend personally. His counsel Mr Mannan applied on his behalf for the hearing to be adjourned on the grounds of ill health, supporting the application by a psychiatric report dated Saturday 8 January and an earlier clinical psychologist’s report. The application was opposed. The Tribunal, after considering Teinaz v LB Wandsworth , adjourned for Mr Pan to produce his records and attend for examination before a psychiatrist instructed by the Respondent.[6]Mr Pan co-operated fully, disclosing his medical records and attending an examination by Dr Suleman, the Respondent’s consultant, on 11 January. The psychiatrists were agreed that Mr Pan was suffering from a severe depressive order. They were not agreed as to whether he was fit to attend and participate in the hearing. Dr Bashir considered that he was not. Dr Suleman considered that, with adjustments to the Tribunal process, he was. The Tribunal considered this issue on 13 January. Dr Suleman was available to give evidence; he was cross examined by Mr Mannan. But Dr Bashir was not available to attend at short notice. The Tribunal decided that Mr Pan was fit to attend and participate with adjustments, which the Tribunal would make. The case was adjourned only until Monday 17 January.[7]On Monday 17 January, however, the Tribunal was told of a further development. On the evening of 13 January and again on 14 January Mr Pan was escorted to hospital by reason of fears about his mental state including whether he was suicidal. His GP and Dr Bashir produced further reports to the effect that he was not fit to attend. Against opposition from counsel for the Bank the Tribunal adjourned the hearing, re-fixing it for the convenience of all concerned for 20-29 July. They gave some further case management directions, including directions for updated medical evidence prior to the adjourned hearing, so that any issues concerning Mr Pan’s health could be addressed in a more orderly way on the next occasion.[8]At this point the Tribunal had not started to hear evidence. The Tribunal had, however, spent approximately one day reading into the case. The hearing was listed on the basis that the same Tribunal would continue to deal with it. There was no objection to this course by Mr Mannan.[9]The Tribunal produced written reasons for its decisions on 13 January and 17 January. It is not necessary to refer to them extensively. It is, however, important to make clear that the Tribunal fully accepted that Mr Pan was suffering from a severe depressive order. In the reasons given on 13 January the Tribunal asked Mr Mannan specifically to convey to Mr Pan that the Tribunal was sorry to know that he was suffering from a severe depressive disorder and acknowledged the distress his state of health was causing him. The Tribunal said it would seek to reassure him that his condition was acknowledged, that the stress of being at the hearing was acknowledged and that adjustments would be put in place to support him.[10]B efore turning to the decisions with which I am now concerned, I record that there is up to date medical evidence concerning Mr Pan’s health in a report dated 1 July 2010. It is said that his mental state has improved; that his depression is mild; that he has some symptoms of paranoia; but that he continues to have chronic symptoms of anxiety. He is fit to attend the court hearing. Breaks may however be required, for reasons given at paragraph 4 of the report. The application for recusal[11]On 7 April 2011 solicitors now instructed on behalf of Mr Pan (AHM Law, for whom Miss Malik had conduct of the matter) wrote to the Tribunal “to ask that Employment Judge Wade be excused from sitting as Chair in respect of the hearing as listed”. They criticised the Employment Judge for engaging in a “balancing exercise” and allowing the Respondent to obtain a medical report rather than making further enquiries with Mr Pan’s own doctors if these were considered necessary. They said she was driven by the Respondent’s need to have the hearing started as soon as possible; that she was biased and that a fair hearing could not take place in front of her.[12]This letter was not copied to the Bank’s solicitors by Mr Pan’s solicitors. But the Tribunal copied it to them, and they put in a letter of objection on 26 April. The correspondence was considered by the Regional Employment Judge. She said that it was not appropriate for her to decide an application for removal of a Judge part way through proceedings; that if Mr Pan wished to ask the Employment Judge to recuse herself the application should be heard in person by the Judge, and that Mr Pan’s solicitors should clarify whether they wished to make such an application in writing on or before 24 May.[13]Mr Pan’s solicitors did not do so. On 6 June the Employment Tribunal wrote to the parties, noting that no application for recusal appeared now to be pursued.[14]However, on 7 June Mr Pan’s solicitors wrote again. They said that in their opinion Employment Judge Wade had “already prejudged the outcome of the next hearing” and that it was “a simple case of bias and we are of the view that the Claimant can no longer have any confidence”. They said the letter “should be taken and read as our formal application for Employment Judge Wade to be excused”. They asked for the application to be listed before a different Judge. Again they did not copy their application to the Bank’s solicitors.[15]I t was this letter which led to the first decision under appeal. By letter dated 13 June 2011 Employment

Judge Wade wrote:

“Employment Judge Wade has considered the Claimant’s applications and whilst she does not consider that the conditions for recusal have formally been satisfied she has decided that the hearing due to start on 20 July should take place in front of a different panel. The reasons for this are to: 1. Save costs on both sides. 2. Enable to parties to concentrate on the substantive issues in the run up to the hearing. 3. Ensure that any upset that this issue is causing to the Claimant, who is unwell, does not continue.”
[16]Upon receipt of this letter the Bank’s solicitors wrote by letter dated 15 June asking the Employment Judge to reconsider or review her decision, commenting in detail on the reasons she had given. On 28 June the Regional Employment Judge asked for Mr Pan’s solicitors to provide comments on the Respondent’s letter within 7 days. I am told they did not do so.[17]On 5 July the following letter was written by the Tribunal to the parties. “Employment Judge Wade has considered the Respondent’s application of 15 June. Her decision to withdraw from the case was not a judgment or decision capable of Review under rule 34 but the application was nonetheless considered. The application is declined for the following reasons: 1. Whilst it is indeed normally undesirable for a panel to remove itself from hearing a case due to ‘irrational and baseless’ concerns about the identity of a judge this Claimant is unwell and suffers from depression; his representatives say that his concerns are real and pressing. Whilst Employment Judge Wade does consider his concerns to be baseless he could be disadvantaged at the hearing if she sits because of the strength of his feelings. This was graphically demonstrated by an apparent suicide attempt on 13 January after the Tribunal had decided not to vacate the hearing date. In effect she is offering a reasonable adjustment to a Claimant who is unwell. 2. There is no disadvantage to the Respondent in a fresh panel being put in place. Apart from the reading day the panel was entirely concerned with issues of adjournment, no other substantive decisions were made. 3. The question of the wasted cost of the reading day is marginal. After such a long gap between adjournment and hearing the Tribunal would have to read back into the case in any event. 4. This matter was technically part heard in that the Tribunal had read papers for a day but no evidence was heard as the matter was adjourned. It is often the case that a panel changes for administrative reasons, even when part heard in this way, and so such a change is routine.” Submissions[18]On behalf of the Bank, Mr James Laddie first submits that the Employment Judge’s decision to order a fresh panel was a decision for the purposes of appeal: see section 21(1) of the Employment Tribunals Act 1996 . That submission is not opposed and is plainly correct.[19]Mr Laddie then makes submissions as to the substance of the appeal.(1) The procedure by which the decision was made on 13 June was unfair, since the letter dated 7 June was not sent to the Bank’s solicitors and they had no opportunity to reply to it.(2) The bias objection should have been properly addressed, not dismissed out of hand. Mr Laddie submits that it should have been heard by a Judge other than the Employment Judge concerned.(3) The Employment Judge’s exercise of discretion was erroneous in law, giving too much weight to supposed administrative considerations and to Mr Pan’s feelings and insufficient weight to the guidance laid down in Ansar v Lloyds TSB Bank [2006] ICR 1565 (EAT), [2007] IRLR 211 (CA).[20]On behalf of Mr Pan, Mr Mannan makes the following submissions.(1) He submits that the Employment Judge was entitled to treat the case as one of doubt, in accordance with the tenth principle in Ansar and in accordance with Drury v BBC [2007] All ER (D) 205.(2) Alternatively, he submits that the Employment Judge was entitled to direct a new panel in the exercise of her discretion and case management powers, having regard to the exceptional circumstances of the case.(3) Although he accepts that Mr Pan’s solicitor did not serve the application in accordance with the rules, he submits that overall the Bank’s solicitors had a fair opportunity to respond to it.(4) While he accepts that the members as well as the Tribunal ought to be involved in the decision to direct a new panel, he suggests that it is at least possible that this took place. Discussions and conclusions[21]I take as my starting point the guidance laid down by Burton J in Ansar , approved in terms by the Court of Appeal. Burton J said:
“l. The test to be applied as stated by Lord Hope in Porter v Magill 620021 2 AC 357, at para 103 and recited by Pill LJ in Lodwick v London Borough of Southwark at para 18 in determining bias 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. 2. If an objection of bias is then made, it will be the duty of the Chairman to consider the objection and exercise his judgment upon it. He would be as wrong to yield to a tenuous or frivolous objection as he would to ignore an objection of substance: Locabail at para 21. 3. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour: Re JRL ex parte CJL [l9861] 161 CLR 342 at 352, per Mason J, High Court of Australia recited in Locabail at para 22. 4. It is the duty of a judicial officer to hear and determine the cases allocated to him or her by their head of jurisdiction. Subject to certain limited exceptions, a judge should not accede to an unfounded disqualification application: Clenae Ptv Ud v Australia & New Zealand Banking Group Ltd [l9991] VSCA 35 recited in Locabail at para 24. 5. The EAT should test the Employment Tribunal's decision as to recusal and also consider the proceedings before the Tribunal as a whole and decide whether a perception of bias had arisen: Pill LJ in Lodwick , at para 18. 6. The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not without something more found a sustainable objection: Locabail at para 25. 7. Parties cannot assume or expect that findings adverse to a party in one case entitle that party to a different judge or tribunal in a later case. Something more must be shown: Pill LJ in Lodwick above, at para 21, recited by Cox J in Breeze Benton Solicitors (A Partnership) v Weddell UKEAT/0873/03 at para 41. 8. Courts and tribunals need to have broad backs, especially in a time when some litigants and their representatives are well aware that to provoke actual or ostensible bias against themselves can achieve what an application for adjournment (or stay) cannot: Sedley LJ in Bennett at para 19. 9. There should be no underestimation of the value, both in the formal English judicial system as well as in the more informal Employment Tribunal hearings, of the dialogue which frequently takes place between the judge or Tribunal and a party or representative. No doubt should be cast on the right of the Tribunal, as master of its own procedure, to seek to control prolixity and irrelevancies: Peter Gibson J in Peter Simpler & CO Ltd v Cooke [l986] IRLR 19 EAT at para 17. 10. In any case where there is real ground for doubt, that doubt should be resolved in favour of recusal: Locabail at para 25. 11. Whilst recognising that each case must be carefully considered on its own facts, a real danger of bias might well be thought to arise ( Locabail at para 25) if: a. there were personal friendship or animosity between the judge and any member of the public involved in the case; or b. the judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case; or, c. in a case where the credibility of any individual were an issue to be decided by the judge, the judge had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person's evidence with an open mind on any later occasion; or, d. on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on their ability to try the issue with an objective judicial mind; or, e. for any other reason, there were real grounds for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues.”
[22]It is also instructive to note the decision of the Appeal Tribunal in Peter Simper & Co Limited v Cooke (No 1) [1984] ICR 6. In that case a Tribunal hearing was part-heard. There was an application for a rehearing before a differently constituted tribunal on the ground of bias. The chairman, sitting alone, without deciding the issue of bias granted the request and decided that the case be reheard. It was held that, while the chairman had power to direct that the case be reheard, he had exercised his discretion incorrectly. It is relevant to mention two of the reasons given by the Appeal Tribunal.[23]Firstly, even though he had the power to take the decision, in the circumstances he ought to have ensured that the decision was taken by all three members of the Tribunal. Browne Wilkinson J said (page 10) “An industrial tribunal, at the hearing, essentially consists of three people, each with an equal voice. The chairman is in no sense in a dominant position. Accordingly if an application is made to abort a hearing before a tribunal of three, in our judgment a decision whether or not to put an end to the existing hearing and to direct a rehearing is one which essentially must be taken by every member of the tribunal and not by one.”[24]In my judgment this remains good law. As a matter of discretion, save for compelling reasons, an employment judge in a case which has started before a full panel should, if he is asked to order a hearing before a different panel, ensure that the decision is taken by the whole panel.[25]Secondly, he placed impermissible weight on the supposed lack of confidence of the party applying for the rehearing. Browne Wilkinson J said “The question does not simply depend upon whether or not a party says that he lacks confidence, but on whether, substantively, there are good grounds for such confidence to be lacking.”[26]There was is some debate as to whether it is appropriate for an Employment Judge or Tribunal to hear an application for recusal on the grounds of bias. In Peter Simper & Co Ltd v Cooke (No 2) [1986] IRLR 19 Peter Gibson J said “Save in extraordinary circumstances, it cannot be right for a litigant, unhappy with what he believes to be the indications from the Tribunal as to how the case is progressing, to apply, in the middle of the case, for a re-hearing in front of another Tribunal. It is, in our view, undesirable that the Tribunal accused of giving the opinion of bias should be asked itself to adjudicate on that matter. The dissatisfied litigant should ordinarily await the decision and then, if he thinks it appropriate, he should make his dissatisfaction with the conduct of the case by the Tribunal a ground of appeal.”[27]It is plain, however, from the guidance in Ansar that if an objection of bias is made it will be the duty of the Employment Judge or Tribunal as the case may be to consider it, giving full weight to the considerations laid down in that case.[28]Applying those considerations here, it is in my judgment plain that the Employment Judge did not decide the application to recuse herself upon correct principles.[29]Firstly, she decided the application without giving the Bank’s solicitors any opportunity to make representations upon it. It is possible that she thought she was rejecting the application and making an order of a different kind on her own initiative, but if she did the order should have recorded the Bank’s right to apply for it to be varied or revoked. It is unclear upon what basis or principle she was acting when she reconsidered the matter.[30]Secondly, she decided the application on her own without her members. In the circumstances of this case I see no justification for her doing so. I appreciate that some administrative inconvenience might have been involved; it might even have been necessary to hear the application on the first day of the resumed hearing, unsatisfactory though that might have been. She does not seem to have considered whether the members should have been involved. Although I appreciate that she was dealing urgently with an application which should have been made some time earlier, if at all, I think she ought to have involved the members.[31]Thirdly, her decision gives no real weight to the considerations set out in Ansar and in Peter Simper (No 1) . This is important guidance, which should be kept firmly in mind in all cases such as this.[32]In the result, it seems to me that the Employment Judge decided to order a fresh panel on a basis quite different from that put forward on Mr Pan’s behalf. She seems to have decided to order a fresh panel almost on medical grounds. She did not, however, have the updated medical evidence; and that updated evidence does not provide any particular support for the ordering of a fresh panel.[33]In my judgment the application for the Employment Judge to recuse herself on grounds of bias was without foundation. At most it is suggested that, in dealing with the application for an adjournment on 10 January, the Tribunal’s legal approach was incorrect. Mr Pan’s advisers would do well to keep in mind, and to remind Mr Pan, of the thoughtful way in which the Tribunal expressed itself in its reasons, which I have already mentioned. Decisions where last-minute applications are made to adjourn substantial cases cause real difficulties to Tribunals, and it does not follow that, even if a mistake is made in taking such a decision, this shows any kind of pre-judgment by the Tribunal of the eventual issue. The Employment Judge appears to have decided that the application for recusal as such was baseless. In my judgment she was correct.[34]It follows that the Employment Judge’s decision to order a fresh panel will be set aside. If the Employment Judge and members are available tomorrow then they should resume the hearing. As I have found, there is no substance in any argument that they should recuse themselves on grounds of bias. If any application is put before them on any other, broader, ground to give way to a fresh panel, they should consider it with the guidance from the authorities firmly in mind and in the light of the medical evidence and submissions put before them. Speaking for myself, I would not encourage any such application.[35]I f, however, the earlier panel is not available to sit tomorrow, I record that the Bank will agree to a different panel. Even so, this appeal will have served a purpose if it ensures that applications of the kind with which the Tribunal was concerned are dealt with in future in a more orderly manner. I would in particular hope that Mr Pan’s solicitor will always comply with the rules when making an application to the Tribunal (by serving the application on the opposite party – see rule 11(4) of the Employment Tribunal Rules).