Nawaz v Docklands Buses Ltd (Debarred) (Practice and Procedure : Bias, misconduct and procedural irregularity) [2015] UKEAT 0104_15_1812

EAT
Nawaz v Docklands Buses Ltd (Debarred) (Practice and Procedure : Bias, misconduct and procedural irregularity)
[2015] UKEAT 0104_15_1812 · 2015-12-18
[1]This is the unanimous Judgment of this Appeal Tribunal. This is an appeal against the decision of the Employment Tribunal sitting at East London sent to the parties on 24 November 2014. That decision, which was a Reserved Judgment, refused the application made on behalf of the Claimant for the Employment Judge to recuse herself from continuing to hear the case. The Employment Tribunal comprised Employment Judge Elgot sitting with Mr Richard Boyd and Mr Peter Lush. For convenience I shall refer to the Claimant and Respondent as they were in the Tribunal below.[2]The Claimant was employed by the Respondent or its predecessor as a bus driver between 2007 and the date of his dismissal, 25 March 2013. He brought claims in the Employment Tribunal alleging detriment on trade union grounds contrary to section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 and also for unfair dismissal including an allegation of automatic unfair dismissal on the grounds of trade union activities and membership.[3]The hearing of the claims started on 17 September 2014 and continued until 19 September. At the end of day two, 18 September, an application was made on the Claimant’s behalf for the Employment Judge to recuse herself on the ground of apparent bias. At the Tribunal’s request that was then set out in writing and made more fully on the following day, 19 September, with the Respondent replying in writing. Witness statements were filed in support of both the Claimant’s application and the Respondent’s response. The Employment Tribunal’s Judgment[4]The decision was made by the Employment Tribunal as a whole using the contemporaneous notes taken by all three members of it (see paragraph 2.3 of the Judgment). At paragraph 3.1 of its Judgment the Tribunal directed itself as to the applicable legal test as follows:
“3.1. … whether the conduct of this case would lead a fair minded and informed observer (in possession of knowledge of all the relevant circumstances) to conclude that there is a real (i.e. more than minimal) possibility that the Employment Judge was biased in the conduct of the case. …”
[5]In all the circumstances of the case the Tribunal concluded that the application was not well founded (see paragraph 7 of the Judgment). Proceedings in the Employment Appeal Tribunal[6]In this Appeal Tribunal in support of the grounds of appeal there have been filed two supporting appendices. Appendix 1 deals with “Matters indicating a risk of bias … on the part of the Judge”. Appendix 2 sets out “Factual disputes as to the conduct of the hearing”. On behalf of the Respondent it has been indicated in writing that it does not wish to take part in this appeal hearing. Although it does not object to the appeal, it has not consented to it being allowed either. In support of the appeal there has been filed an affidavit of Zillur Rahman, a solicitor with Thompsons Solicitors, who have acted throughout on behalf of the Claimant. There is also an affidavit from counsel, who has acted throughout. He states in his affidavit that he did so after consulting the Bar Council as to his professional ethical obligations and in particular was informed that there was no difficulty in his both giving an affidavit for the purposes of this appeal and appearing as an advocate on the Claimant’s behalf. Finally, there is also an affidavit from the Claimant himself.[7]Although the Respondent has not taken an active part in this appeal, the Employment Tribunal had before it a witness statement from a witness for the Respondent, Angie Ryder. In our judgment, it is telling, as counsel for the Claimant has submitted, that no affidavit evidence has been filed in this Appeal Tribunal in response to the affidavit evidence filed by the Claimant and on his behalf. In particular, therefore, there is no sworn or similar evidence to contradict the sworn affidavits filed on behalf of the Claimant. That is in spite of the fact that there has been ample opportunity given to the Respondent to do so by this Appeal Tribunal. Nor has there been any application to cross-examine the witnesses on behalf of the Claimant, as would be a possibility in this Appeal Tribunal in appropriate circumstances. This is all despite the fact that it is plain that as a matter of procedural history in this case the Respondent has been an active participant. Indeed, as we have already noted, when the issue of recusal raised itself before the Employment Tribunal that was resisted, and a witness statement was filed in opposition to the application made on behalf of the Claimant.[8]The Employment Judge concerned has filed comments on the allegations made on behalf of the Claimant, and we have taken those fully into account. We have also taken full account of the “submission” from one of the lay members of the Tribunal (Mr Lush) and finally the letter dated 3 February 2015 from the other lay member (Mr Boyd). Relevant Legal Principles[9]We begin with the well-established test for apparent bias. For convenience, it is summarised in the recent Judgment of Langstaff P, as he then was, in East of England Ambulance Service NHS Trust v Sanders [2015] ICR 293 at paragraph 37, where it was stated:
“37. … The approach is well known, whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased (see Porter v Magill [2002] 2 AC 357 , para 103).”
[10]Although the principles are familiar, it is worth emphasising certain aspects of them. First, the test is an objective one; it is not a subjective one. The question is not whether, for example, the Claimant subjectively in his own mind and in good faith considers that there was a real possibility of bias. Conversely, the test is not one to be determined subjectively by what was in the mind of the Employment Judge concerned or the lay members. The question is one for this Appeal Tribunal to determine as an objective matter.[11]Secondly, it needs to be emphasised that what is alleged in this case is not actual bias but apparent bias. The test from Porter v Magill , which I have already cited, related to the issue of apparent bias. For this purpose it would not matter that there was no actual bias on the part of the Employment Judge. That is not alleged, nor does it need to be proved. Even assuming, as we do, for the avoidance of doubt, good faith on the part of all concerned, there can be cases in which the objective test for apparent bias is made out.[12]The third point that I would wish to emphasise is that this sort of case illustrates well the advantages that this Appeal Tribunal can have in those cases where it is directed that lay members should sit with a professional Judge, for this is because the test for apparent bias is helpfully considered in a case of this kind by this Appeal Tribunal including not only a professional legal member but also lay members.[13]As I have observed by reference to the test for apparent bias, the fair minded and informed observer is taken to be a person who knows the relevant facts, and what someone who is unaware of all of the relevant facts might think is not the relevant issue. However, this can lead to potentially difficult questions about what the relevant facts are, particularly if there are differences in recollection as between different people, no doubt all doing their best in good faith to recall what took place at the hearing before the Employment Tribunal. For that reason, I now turn to another decision of this Appeal Tribunal in Facey v Midas Retail Security Ltd [2001] ICR 287, in which the Judgment was given by Lindsay J, who had been sitting with two lay members. At paragraph 32 Lindsay J stated:
“32. … let it be supposed that after close analysis and a narrowing of the issues the court is sensible that it still cannot fairly dispose of an allegation of bias without the evidence of the judge, how is it to proceed? There cannot be a simple principle, where the evidence of a party or a representative differs from the unsworn comments of the judge, that the latter view is to prevail. Roberts v United Friendly Insurance plc (unreported) 13 June 1996, cannot be relied upon; one cannot, simply on a basis that he was such, prefer the view of the judicial (or quasi-judicial) individual: Jones v Secretary of State for Wales [1995] JPL 1135, 1139, 1142 [I interpose that that was a decision in the context of planning law concerning a planning inspector]. There was no real analogy, argued Mr Eadie, with the notion under which a chairman’s notes of evidence are supreme where their accuracy is disputed; in any event the chairman’s notes are not necessarily supreme. They are not, if, for example, after the due procedure of putting the matters in dispute to the chairman, both sides still agree that the chairman’s notes are incomplete or imperfect: Dexine Rubber Co Ltd v Alker [1977] ICR 434, 438, 439. …”
[14]The Appeal Tribunal then considered whether the Judge’s evidence was competent and compellable. At paragraph 35 of his Judgment Lindsay J said in summarising counsel’s argument for the First Respondent that:
“35. … the appeal tribunal should accept the accuracy of the written evidence (sworn or unsworn) of the chairman unless it is manifest from the material before the appeal tribunal that it would be unsafe to do so …”
[15]After citing the authorities that were relied upon for that proposition, Lindsay J continued:
“35. … The latter two cases cannot support the argument and, as to the first, we prefer Mr Eadie’s argument; Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 , too, makes it plain that the judge’s version need not be accepted: pp 477-478, para 19 and p 490, para 64. Whilst, of course, a fact-finding body pays regard, inter alia, to the quality of the source of the information which it receives, it would be unfair to have an absolute rule such that, simply by reason of the high regard in which the office is held, the office holder’s evidence would be paramount even if untested by cross-examination.”
[16]Later, in paragraph 36 of his Judgment, Lindsay LJ observed that following Locabail the view must be taken that as to primary fact a Judge cannot be cross-examined in this area; that is, in the context of allegations of apparent bias.[17]I return to the relevant legal principles insofar as they were helpfully set out in the Judgment of Langstaff P in the East of England case. As the Claimant fairly acknowledges, the facts and the precise issue in that case were different to the present case. In particular, the question arose whether it was permissible for an Employment Tribunal to conduct its own research on the internet as to matters that would otherwise be the subject of evidence before it. However, in the course of giving his Judgment on that issue Langstaff P restated certain fundamental principles that it is well to bear in mind. At paragraph 1 he stated:
“1. A judge’s job is to adjudicate impartially on a dispute between the parties in the case before him. It is not to advocate the case for either.”
[18]At paragraphs 16 and 17 Langstaff P cited, in summarising the argument made to him, the decision of the Court of Appeal in Yuill v Yuill [1945] P 15, where Lord Greene MR said:
“A judge who observes the demeanour of the witnesses while they are being examined by counsel has from his detached position a much more favourable opportunity of forming a just appreciation than a judge who himself conducts the examination. If he takes the latter course he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of the conflict. Unconsciously he deprives himself of the advantage of calm and dispassionate observation. …”
[19]Langstaff P observed that those comments must be read in the context in which they were made. It was a divorce case. There were advocates on both sides. The case was conducted before the civil courts in 1944. He stated:
“17. … The context is therefore different, as it seems to us, from that which applies before an employment tribunal, as to which we will later say more.”
[20]In a similar vein Langstaff P quoted the eloquent Judgment of Denning LJ in Jones v National Coal Board [1957] 2 QB 55 at paragraphs 18 and 19 of his Judgment. At paragraph 20 of his Judgment Langstaff P turned to a case that is closer to the context he was concerned with - and indeed the present context - the decision of the Court of Appeal in McNicol v Balfour Beatty Rail Maintenance Ltd [2002] ICR 1498 . The principal Judgment was given by Mummery LJ, who said at paragraph 26:
“26. As to the function of the tribunal it was submitted that it should adopt an inquisitorial and more pro-active role in disability discrimination cases, as they can be complex and involve applicants whose impairment leads them to minimise or to offer inaccurate diagnoses of their conditions and of the effects of their impairment. I do not think that it would be helpful to describe the role [of] the employment tribunal as ‘inquisitorial’ or as ‘pro-active’. Its role is to adjudicate on disputes between the parties on issues of fact and law. …”
[21]In his own assessment of the relevant applicable principles Langstaff P said at paragraph 28 that proceedings in the Employment Tribunal “are not inquisitorial, as this tribunal seemed to think”. At paragraph 29 he specifically rejected the submission that Rule 41 allowed a Tribunal to make enquiries on its own behalf into evidence that was never volunteered by either party. He reiterated that:
“29. … The tribunal is, as we said at the start of this judgment, to act as the adjudicator not as advocate. …”
[22]At paragraph 30 Langstaff P said that McNicol falls short of saying that a Tribunal must not act inquisitorially in some respects, although it is clear that it is authority that there is no duty to do so. He acknowledged that it is important that the obligations of a Tribunal, to deal sensitively with litigants in person and those who may be vulnerable for one reason or another, should not be confused with adopting an inquisitorial procedure. He also said:
“30. … It is the role of the judge to ensure, by making proper allowance, by ensuring that the form of questioning by one side or the other is appropriate, by controlling the amount of time that a witness is in the witness box and, as rule 41 itself suggests, asking its own questions, that a witness gives the best evidence that that witness would wish to give. It remains, however, that witness’s evidence. It is that witness’s case. It is not the tribunal’s case. It is not the tribunal’s evidence.”
[23]At paragraph 31 of his Judgment Langstaff P acknowledged that the analogy with ordinary civil courts may not be entirely apposite. He said:
“31. … it is quite likely that there will be a degree of intervention in proceedings before a tribunal which might raise some eyebrows in civil courts. …”
[24]However, in the same paragraph Langstaff P stated that:
“31. … it is advisable that the tribunal asks those questions in a non-leading form. That is not because form should triumph over substance. It is because non-leading questions give rise to the most reliable answers. If a judge suggests an answer to witnesses, they are much more likely to agree with it than they would if asked an open question about the same point, and the tribunal should be careful to avoid making a case for either party.”
[25]Finally in this vein, in paragraph 32 of his Judgment, Langstaff P stated:
“32. … it is not the role of the employment tribunal to find evidence to support one party’s case or the other. Adjudicating on the evidence put before it is not producing the evidence for it to consider.”
[26]Finally, we would observe that at paragraph 38 of his Judgment Langstaff P reiterated the fundamental principles of judicial independence and impartiality by reference to the well known Bangalore Principles of Judicial Conduct 2002 and Article 2.5. He also referred to Article 6 of the European Convention on Human Rights and Fundamental Freedoms , which of course is one of the Convention Rights set out in Schedule 1 to the Human Rights Act 1998 . Indeed, Article 6 formed the backdrop in part to the slight modification to the test of apparent bias that was required as a matter of common law and that culminated in the decision of the House of Lords in Porter v Magill . Finally, in paragraph 38 Langstaff P quoted the following important statement of principle from Mummery LJ in AWG Group Ltd v Morrison [2006] 1 WLR 1163 , 1172:
“the paramount concern of the legal system is to administer justice, which must be, and must be seen by the litigants and fair-minded members of the public to be, fair and impartial. Anything less is not worth having.”
[27]We regard those as salutary and fundamental principles, which we bear in mind as we turn to the particular case before us. Preliminary Observations[28]It should be acknowledged, before we turn to the detailed grounds of appeal in this case, that this is an unusual and, in our judgment, exceptional case. Ordinarily, it might be expected that cases should be allowed to proceed to their full extent before a first instance Tribunal. This is not least because it cannot necessarily be anticipated that a decision will in fact be adverse to the party that suggests that there has been apparent bias on the part of a Tribunal. If the decision does turn out to be adverse, then, depending on the facts, it may or may not be a well founded ground of appeal.[29]Secondly, we would observe that in the context of this particular case the evidence had not yet concluded. While the witnesses on behalf of the Claimant, including the Claimant himself, had been heard and cross-examined, the Respondent’s evidence had not been completed. One witness, Ted Dalton, had been giving evidence and had been cross-examined; it was at that point that the application that the Employment Judge should recuse herself was made, initially orally and then in writing, as we have said, on the following day. Nothing we say in the course of this Judgment should be taken as providing any encouragement that in the ordinary course of events applications and appeals of this kind should be entertained by this Appeal Tribunal.[30]However, it has to be observed that this case has taken a relatively unusual procedural course. First, there was an interruption in the proceedings in the Employment Tribunal in any event. The Tribunal decided to give a Reserved Judgment in response to the application before it. That has then been the subject of an appeal to this Appeal Tribunal. Although, as we understand it, it was contested on the part of the Respondent whether the appeal was properly brought, that was on other grounds. Those grounds did not succeed. The fact is that the appeal has been permitted to proceed to a Full Hearing before this Appeal Tribunal by a highly experienced Judge sitting in this Tribunal, HHJ Peter Clark, not only at the sift stage on the papers but also after a Preliminary Hearing had taken place. It was HHJ Peter Clark who directed that it was important in this appeal hearing for lay members to participate. There is a validly constituted appeal before this Appeal Tribunal, and it must be dealt with. That is what we propose to do. The Grounds of Appeal[31]On behalf of the Claimant there are advanced four grounds of appeal, although it is fairly recognised that they to some extent are interrelated. The first ground is that the Employment Tribunal failed in determining the application to have any or adequate regard to the principles summarised in the East of England case to which we have already referred extensively. Reliance is placed upon the affidavit evidence to which we have already made reference and also upon notes taken contemporaneously by a Ms Jagravi Upadhayay, who, as we understand it, was doing work experience at the time of the hearing.[32]In a very helpful appendix 1, counsel for the Claimant has taken us methodically through the key points upon which he relies as supporting the fundamental complaint in this case and has helpfully cross-referred to his own notes of the evidence taken at the time and also the notes taken at the hearing by those instructing him. We have read all of those matters, including the affidavits and other documents to which our attention has been drawn fully and taken them into account. As I have already indicated, we have also read fully and taken into account the various responses made by the Employment Judge and other members of the Tribunal. It will not assist the interests of justice if this Judgment is unduly lengthened by lengthy citation of all of those documents. However, even a summary reference to the key points upon which counsel for the Claimant relies makes it clear, in our judgment, that this ground of appeal is well founded.[33]There is dispute between the various persons concerned about exactly how many interventions were made by the Employment Judge during, for example, the cross-examination of the Claimant and other witnesses who gave evidence on his behalf. There is a similar issue as to the number of interventions made when counsel for the Claimant was cross-examining the first witness called by the Respondent. As counsel fairly accepted, the fundamental issue, however, is not one that turns on the precise number of interventions but essentially in our judgment on the nature and quality of those interventions. In particular, in our judgment, there can be no doubt that regrettably this Employment Judge did, in conflict with the principles of law we have already summarised, enter the arena and would be perceived by the fair minded observer as making points that were not asked by way of open questions to elicit and clarify the Claimant’s evidence or other evidence but rather, for example, to cross-examine the Claimant and to put points to him seeking his agreement.[34]A few examples, as we have said, will suffice for this purpose, although we emphasise that we have taken the entirety of the documents into account. The first example concerns the cross-examination of the Claimant that was taking place by counsel on behalf of the Respondent. We observe in passing that we have been informed that counsel for the Respondent was a highly experienced advocate who had been in practice for some 20 years. It goes without saying that this was not a case, for example, where only one side was represented. Both sides were represented by experienced counsel. When questions were asked of the Claimant by the Employment Judge, they were asked during and while his cross-examination was going on not at the end when, as is common knowledge, Tribunal members frequently ask some questions after the parties have asked their questions. There is nothing wrong in principle with such an intervention during the course of cross-examination by one party. However, as we have already stressed by reference to the decision of this Appeal Tribunal in the East of England case, what is important is the nature and quality of those questions. If, for example, there is simply clarification sought to make sure that the Tribunal has understood correctly what the evidence is that the particular witness is trying to give, there can be no objection of principle. However, in this first example the following is noted by the solicitor for the Claimant:
“J - What Rob say? A - You are suspended J - Letter? A - No letter - ask why, he said TD said to that’s why. No reason mentioned. J - It’s pretty obvious - you knew didn’t you? A - Now how will I know J - Most logical people would know that refused, rationale thought and know why - rationale logic …, must have known that? A - If so, why the mention in letter J - Most human beings would know”
[35]In our judgment, that was more than simply an unfortunate and inappropriate remark, particularly that last remark about “Most human beings”. We stress that it would not be appropriate to take one or two sentences out of context. As we shall make clear at the end of this Judgment, it is the overall impression that is crucial. However, in this context we would observe that there was not just that unfortunate and inappropriate remark made at the end of that series of questions; rather, what is important is that the Employment Judge would appear to the informed and fair minded observer to be asking questions of the Claimant not to elicit clarification of his evidence but to put points to him with which he would not necessarily agree but with a view to trying to persuade him that he should agree. That is classically the essence of cross-examination. That is what advocates do; it is not what Tribunals should do.[36]There are other examples, but, for reasons we have already mentioned, we do not intend to go through each and every one of them - they are sufficiently set out in the documents we have already mentioned - although we would observe, in accepting the submissions made on behalf of counsel for the Claimant, that during the course of his cross-examination of the Respondent’s witness who had been called the Employment Judge, in our judgment, intervened again not to ask questions by way of clarification but in order to put to him a point that would assist the Respondent’s case and that was not necessarily the first evidence that he had given when he had been cross-examined by counsel for the Claimant.[37]There is one other example that, in our view, needs to be more specifically set out, because it causes real concern to us. This concerned a stage in the proceedings when the applicant was giving evidence. On a number of occasions, we are informed, counsel asked his opposite number not to speak over the witness. He emphasised in particular that the Claimant’s first language is not English. While that was going on before the Employment Tribunal there was an exchange between counsel for the Claimant and the Employment Judge that, in our judgment, causes real concern and perhaps gives an indication of how fundamentally wrong things had gone at this hearing. According to the note of the instructing solicitor for the Claimant, the following is recorded:
“J - lots of time being wasted you arguing with me. - Mr N himself J - make a note and move on …. - Would ask for a short adjournment - application may be forthcoming. J - Happens often this in East London where Counsel engage in dispute, I don’t know why. D - My duty because client in ??? language he’s right to express himself and to give content”
[38]An important addition to that evidence before this Appeal Tribunal can be found in the note by Ms Upadhayay that we have referred to. At page 11 of her note it is said:
“Counsel often dispute with Employment Judge in East London - Elgar [clearly an understandable mistake; that should be “Elgot”] refuse to be ‘intimidated’ but Panesar asserts that it is his duty to allow QN [the Claimant] to justify self.”
[39]It is of importance, we think, that that contemporaneous note from a work experience student picked up on the word “intimidated” and thought it important enough to record at the time. Furthermore, we have an additional note from the instructing solicitor in the case, and finally we have the evidence of counsel himself, who has assured me at this hearing that the word “intimidated” was used to him by the Employment Judge. He disagreed with the suggestion that that was what he was seeking to do; he was, entirely properly in our view, trying to do the best that he could on behalf of his lay client, something which is in the best traditions of the Bar in this country. Advocates must be able to do their job fearlessly and independently without fear of intimidation. In our judgment, far from counsel trying to intimidate the Tribunal, this was an unfortunate example of the Employment Tribunal seeking to put pressure on a party in a way that the informed and fair minded observer would regard as unfair.[40]We turn more briefly to the other grounds of appeal in the light of what we have said so far. The second ground is that the Employment Tribunal made its recusal determination on the basis of a description of the facts that was not correct. Although we understand why that ground is advanced, in the result we do not think that it is necessary. This is because, as HHJ Peter Clark observed when referring this case to a Full Hearing, although in form this is an appeal in substance this Appeal Tribunal is exercising a “quasi-original” jurisdiction, forming its own opinion and applying the well-known test in Porter v Magill to the facts of this case as they now are before us.[41]The third ground of appeal is that the Employment Tribunal erred in taking the wrong approach to the witness evidence presented in support of the application in contrast to the approach that the Employment Judge took to the Respondent’s evidence, namely the witness statement from Ms Ryder. The submission is made by counsel for the Claimant that notwithstanding the observation by the Employment Judge that the statements on behalf of the Claimant did not come from neutral, impartial observers of the proceedings it would appear that she did not apply the same standard to the evidence of Ms Ryder. We respectfully accept that submission. In our judgment, it is, again, unfortunate what may have occurred here, as often happens, bearing in mind human nature, when somebody’s decision is questioned one tends to become defensive. In those circumstances one can, albeit in good faith, rely upon evidence that supports one’s initial position while discounting evidence that contradicts it.[42]The fourth ground of appeal is that the Judge in determining the application failed to deal at all with the specific allegation made in relation to the comment about, “Most human beings would know that”. We have already dealt with this in considering the first ground of appeal and do not feel it necessary to say more about it now.[43]In the result, therefore, we have come to the unanimous conclusion that the essential thrust of the case advanced on behalf of the Claimant is well founded. Conclusion[44]For the reasons that we have given, this appeal is allowed. For obvious reasons, this case cannot go back to the same Employment Tribunal. The case will therefore be remitted to a different Employment Tribunal.