Greco v General Physics UK Ltd (Practice and Procedure: Bias, misconduct and procedural irregularity) [2016] UKEAT 0114_16_0208

EAT
Greco v General Physics UK Ltd (Practice and Procedure: Bias, misconduct and procedural irregularity)
[2016] UKEAT 0114_16_0208 · 2016-08-02
[1]This is an appeal by Ms Debora Greco (“the Claimant”) against a Judgment of the Employment Tribunal sitting in Nottingham (Employment Judge Hutchinson, Mrs Drummond and Mr Hill). By its Judgment, dated 7 July 2015 the Employment Tribunal dismissed claims of unfair dismissal and sex discrimination which the Claimant brought against General Physics UK Ltd (“the Respondent”).[2]The Claimant’s grounds of appeal originally ran to some 89 pages. They were found on paper to disclose no reasonable ground for appealing. At a hearing under Rule 3(10) of the Employment Appeal Tribunal Rules 1993 the Claimant was represented by counsel, Mr Gary Self. He prepared amended grounds of appeal, for which Cox J gave permission. These grounds included allegations of bias. In accordance with the usual practice of the Employment Appeal Tribunal, provision was made for affidavits and for comments from the Employment Judge and members. Today I have those affidavits and comments as part of a bundle and supplemental bundle prepared for the hearing. Mr Self represents the Claimant; she had represented herself before the Employment Tribunal. The Respondent is represented by Ms Garner as it was below.[3]I should mention one procedural matter. It is permissible under the Employment Appeal Tribunal’s practice for parties to be cross-examined on their affidavits if the Employment Appeal Tribunal is of the view that cross-examination will materially assist it (see Facey v Midas Retail Security Ltd [2001] ICR 287 EAT at paragraph 39(v)). It is unlikely that Cox J considered that cross-examination would materially assist, for she made no provision in the Order relating to it and estimated the length of the hearing, including Judgment, at half a day. I alerted the parties in advance to this question; both indicated that there was no wish to cross-examine. I have considered the matter for myself. I too have formed the view that cross-examination will not materially assist. The Background Facts[4]The Respondent provides services in the field of engineering design, project managing and technical consulting, mainly to the food, brewing and drinks industry. The Claimant is an engineer. She commenced her employment with the Respondent on 2 April 2012. She worked in a team managed by Mr Anthony Reynolds.[5]On 14 March 2014 Mr Reynolds conducted an appraisal meeting with her. He then completed an appraisal document which marked her performance as unsatisfactory in important areas. He said that there had been requests from customers not to task her with projects on their sites in future and from another customer for her to be removed before the end of a session covering operator training. He said he had become concerned about assigning technically complex projects to her. She protested that the document did not reflect what had happened at the appraisal meeting. He expressed surprise, said he believed his appraisal to be fair and balanced and invited her to a meeting.[6]On 23 April the Claimant wrote a letter of complaint to Mr Treddenick, who was Mr Reynolds’ line manager. She said she felt “denigrated and despised both as human being and as an engineer” by Mr Reynolds. She did not suggest that this was because of her sex. The letter was treated as a grievance under the Respondent’s grievance procedure and investigated. The Claimant was invited to a meeting with Mr Treddenick. On 11 June Mr Treddenick wrote a detailed letter to her rejecting her grievance. He told her she had a right of appeal to Mr Nokes, the relevant Director.[7]On 24 June the Claimant wrote to Mr Nokes expressing dissatisfaction with the outcome of the grievance. A meeting was arranged to discuss the grievance appeal for 9 July 2014. It was attended by the Claimant, Mr Nokes and Mrs Bridgewater, the Respondent’s Regional HR Manager. In the meantime, however, Mr Reynolds had raised two further matters with the Claimant at a meeting on 1 July. She had booked five days during June to waiting time/ administration without informing him, and she had sent a report (“the Tamar report”) to the client giving Mr Reynolds’ name as technical reviewer without his authority.[8]At the meeting on 9 July the Claimant told Mr Nokes and Ms Bridgewater that she did not wish to appeal the outcome of the grievance decided by Mr Treddenick; rather, she wished to complain about further matters. One of these related to the Tamar report, another to Mr Reynolds’ refusing her time off in lieu. Mr Nokes and Ms Bridgewater had not previously known about these matters. They responded that they had concerns about the sending of the report and about time off in lieu. They said that they would be invoking the disciplinary procedure.[9]At this point on 9 July they suggested and alternative solution: there might be some without prejudice negotiation with a view to a settlement agreement about the possibility of her leaving the company. She agreed. She instructed a solicitor, discussions took place between her solicitor and Ms Bridgewater, but on 29 July the Claimant said she no longer wished to use that solicitor, and negotiations broke down. On 1 August the Claimant was suspended. A disciplinary investigation began. On 9 August the Claimant was invited to attend an investigation meeting, to take place on 13 August, to consider allegations relating to the sending of the report without approval, taking time off in lieu, failing to follow reasonable management instructions and breach of the duty of trust and confidence.[10]The Claimant had in fact started to look for a new job on 10 July. She did not attend the meeting on 13 August. On 15 August she resigned. She said that her treatment, particularly the conduct of the Respondent during what she described as a spurious investigation, had the effect of ruining her reputation. She said that her working conditions with Mr Reynolds were wholly unacceptable and that her contract had been broken by the Respondent. The letter was written with legal assistance, and there was, again, no allegation of sex discrimination. The Claimant started work elsewhere on 18 August. The Employment Tribunal Proceedings and Hearing[11]I will have to return in more detail to at least one aspect of the Employment Tribunal proceedings and hearing later in this Judgment. For the moment, a summary will suffice. The Claimant lodged her ET1 claim form on 14 December 2014. She represented herself during the preparations for the Employment Tribunal hearing. She ticked boxes for unfair dismissal, sex discrimination and other complaints. She attached typed details of her claims, running to some seven quite full pages. There was a reference to her being the only female and foreign engineer and to a preference by Mr Reynolds for assigning projects to “male engineers and to people without a foreign accent”. Otherwise, however, there was no reference to sex discrimination.[12]The matter came before Regional Employment Judge Swann on 12 February 2015 for a telephone Preliminary Hearing. It was pointed out that the Claimant had to fully particularise her claim. Orders were agreed. The Order for Particulars reads as follows:
“1. The Claimant shall send to the Respondent and to the Tribunal by 12 March 2015 full details of all matters upon which the Claimant relies in support of the allegations that the Claimant has been discriminated against on the grounds of her sex, including all particular incidents relied upon and, so far as possible, providing the dates of those incidents, the persons involved and all matters done or said about which she complaints and the less favourable treatment she maintains she has been subjected to as a result, together with the details of any comparators relied on.”
[13]I interpose that this Order made it entirely plain to her that she should not give examples only and that she was expected to give particulars of her case in a way that could be addressed at a future hearing.[14]The Claimant provided Particulars in a document dated 11 March 2015. She said that it contained:
“… some of the episodes that made me feel not considered at the same level of the male engineers that were my colleagues.”
As I have said, the Order gave her no right to reserve any allegations for the future. The Particulars were to contain the allegations upon which she would rely.[15]There were then seven quite specific allegations concerning different matters between December 2012 and July 2014. In summary, these were the following: being required to photocopy an entire archive, being denied time off when her car was being serviced and given its MOT, being denied an overtime request in May 2013 against the background that her employment did not entitle her to overtime, being made responsible for a dangerous machine in January 2014, interference with a hotel booking in May 2014, being offered a lower termination payment than had been offered to a man or men, and not assigning her health and safety site management tasks.[16]These further details stood at the time of the hearing - the Claimant did not make any application at any stage to amend them or add to them - but I should mention two further documents she prepared on which Mr Self places reliance today.[17]Firstly, she prepared a document entitled “Comments concerning the ground of resistance and amended ground of resistance” dated 16 April 2015. She said in order to emphasise the continuing nature of the discrimination, the grounds she chose spanned from the beginning of her employment in 2012 to its end in 2014. The seven allegations indeed spanned that period. She did not add any new allegations.[18]Secondly, she prepared a witness statement for the hearing. It is dated 21 May 2015. It alleged that the Respondent allowed Mr Reynolds to bully and harass her and to discriminate on the grounds of sex; it did not deal with the detail of the seven allegations in the document dated 11 March. Within the statement there appear to be two specific allegations not made before, namely that Mr Reynolds committed sex discrimination by alleging she had taken an unauthorised lieu day and sending the Tamar report without authorisation. These issues are alleged to have taken place before she escalated the grievance to the second stage of management; that is to say, by 24 June or perhaps at the latest 9 July. The Claimant did not apply to amend the details of sex discrimination that she had given in her document dated 11 March 2015. At the very conclusion of her witness statement in paragraph 118 the Claimant also said that the suspension, investigation and meeting showed that the Respondent was siding with Mr Reynolds and was allowing him to continue to harass and discriminate against her.[19]The hearing commenced on 8 June 2015. There was discussion between the Employment Judge and the Claimant before the evidence began. There is a question on this appeal as to what this discussion covered. I shall return to that later. In her written closing submissions at the end of the hearing the Claimant included a section entitled “Sexual discrimination” that repeated references to the unauthorised lieu day issue and the Tamar report issue. They said that these contained “elements of sexual discrimination” and were why she escalated the grievance to the second level. They were “items that support each other into the chain of events that led me to resign”. The Employment Tribunal’s Reasons[20]The Employment Tribunal set out the issues in paragraphs 3 to 8 of its Reasons. As regards sex discrimination, it listed the seven matters identified by the Claimant in her Further Particulars of Claim as amounting to unfavourable treatment and identified the time issues that arose. In paragraphs 11 to 47 the Employment Tribunal set out findings of primary fact, and in paragraphs 48 to 60 it summarised the law. No complaint is made of its summary of the law, save perhaps its reference to Robertson v Bexley Community Centre (t/a Leisure Link) [2003] IRLR 434 CA.[21]The Employment Tribunal then turned to its conclusions, dealing firstly with her claim of constructive unfair dismissal. It found that the Claimant resigned because she believed she would be dismissed otherwise (see paragraph 61 of its Reasons). It rejected her case that the Respondent was in fundamental breach of contract. Two key paragraphs within its Reasons are paragraphs 63 and 64:
“63. Mr Reynolds was entitled in his appraisal to point out (and indeed should have) the shortcomings of the Claimant as he saw them. His behaviour was not unreasonable. His appraisal of the Claimant was not unfair. The reaction of the Claimant was not a reasonable reaction. In our view, she brought forward wholly unjustified complaints against Mr Reynolds. The grievance procedure was carried out by the Respondents [sic] in a reasonable manner and in accordance with the Respondents [sic] procedures. There was no undue delay in carrying it out. 64. When those allegations were found to be unjustified, the Claimant appealed against that decision. She then behaved in a most unprofessional way, sending a report to a client without having it approved by Mr Reynolds and contrary to his direction. We are satisfied that she knew what she was doing and that it was wrong for her to behave in this manner. Then during the appeal hearing matters came to light, including the TAMAR report referred to above. The allegations were of a most serious nature and justified investigation. We are satisfied that the Respondent was entitled to suspend the Claimant and carry out an investigation into her behaviour. In view of her admissions at that meeting it was appropriate to offer her the opportunity to leave the respondents [sic] employment by agreement. We do not agree that she was given an “ultimatum”.”
[22]The Employment Tribunal turned to the sex discrimination claim. Working back from the date of presentation of the claim and allowing for early conciliation, it said that the primary time limit would have run from 2 August. (In this it may slightly have been in error. It seems the time limit would have run from 4 August, but the error is not material and if it had been material would have favoured the Claimant.) The Employment Tribunal found that the seven acts that it had identified were over by 31 July 2014, the last being the settlement offer. It found, further, that each of the alleged acts was an individual act not part of a continuous act of discrimination (see paragraphs 68 and 69). It found also that it would not be just and equitable to extend time (see paragraphs 71 to 77). Submissions[23]On behalf of the Claimant, Mr Self puts the case in the following main ways. First, he submits that the Employment Tribunal erred in law in considering that the Claimant’s sex discrimination claim was limited to the seven matters set out in her further details. It should have explored the Claimant’s position further in the light of her indication on 16 April and in her witness statement that she wished to raise further matters. He submits that it was incumbent upon the Employment Tribunal to establish the parameters of the sex discrimination claim at the outset of the hearing but it did not do so and in this way erred in law. He asserts, based on his instructions, that clarification of the issues did not take place properly at the start of the hearing. In her affidavit the Claimant asserts that at no point was she asked whether she agreed the issues that the Respondent had set out.[24]In response to this submission Ms Garner says that the Employment Tribunal committed no error of law in proceeding on the basis that the Claimant relied on the seven allegations set out in the further details. The Employment Tribunal was not required to trawl through other documents to identify other possible allegations of sex discrimination. She referred me to Mensah v East Hertfordshire NHS Trust [1998] IRLR 531 CA at paragraph 28 and Drysdale v Department of Transport [2014] IRLR 892 CA at paragraph 49. As a matter of fact, the Claimant was taken through the issues at the start of the hearing by the Employment Judge. She did not say she wished to raise any further issues even though the time point was explained to her.[25]Secondly, Mr Self submits that the Employment Tribunal provided no proper reasoning for its conclusion in paragraph 69 of its Reasons that the seven items were individual acts of discrimination rather than part of a continuing act of discrimination. He points out that on the Claimant’s account Mr Reynolds was involved in the first six of the seven allegations. This was relevant factor (see Aziz v FDA [2010] EWCA Civ 304 at paragraphs 33 and 43). In response Ms Garner takes me to the decision of the Court of Appeal in Commissioner of Police of the Metropolis v Hendricks [2003] ICR 530 at paragraphs 48 and 52. She submits that in substance the Employment Tribunal applied this test, gave proper reasons and committed no error of law.[26]Thirdly, Mr Self submits that the Employment Tribunal erred in law in its application of section 123(1)(b) of the Equality Act 2010 (“EqA”). It wrongly treated Robertson as establishing a rule that the time limit could only be extended in exceptional cases. In any event, it proceeded on the basis that each claim was independent and should therefore have looked at the question separately as regards each claim. It did not take into account the prejudice to the Claimant in being unable to pursue her discrimination claims. In response Ms Garner says that the Employment Tribunal quoted Robertson appositely, directed itself in accordance with the British Coal Corporation v Keeble [1997] IRLR 336 EAT factors and gave reasons that are free from any error of law.[27]Fourthly, Mr Self submits that as regards the constructive dismissal claim the Employment Tribunal erred in law in the way it considered the meeting on 9 July. This meeting was, he submits, central to the case. The Employment Tribunal failed to make sufficient findings about it, failing to explain how a meeting that was convened to address the Claimant’s grievance turned into one where her own future employment was under threat and failing to address section 111A of the Employment Rights Act 1996 (“ERA”). In response Ms Garner accepts that the Employment Tribunal was not referred to section 111A of the 1996 Act . She submits, however, that the Employment Tribunal committed no error of law, essentially considering, in respect of unfair dismissal, issues that it would have had to consider if it had expressly directed its mind to the new section 111A. What happened at the meeting on 9 July was an issue that it had to determine. What happened during subsequent pre-termination negotiations played no part in the Employment Tribunal’s reasoning concerning the claim for constructive dismissal.[28]Finally, Mr Self relies on allegations of bias that were set out in paragraph 6.4 of the Claimant’s Notice of Appeal and in his skeleton argument for the Rule 3(10) Hearing. Statutory Provisions[29]“Constructive dismissal” is a convenient phrase to describe a case that falls within section 95(1)(c) ERA 1996 , namely where the employee terminates the contract:
“… in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.”
[30]It is well established that the employee’s entitlement is to be assessed on contractual principles. Section 111A ERA 1996 is a provision specific to claims of unfair dismissal. It was introduced relatively recently:
“(1) Evidence of pre-termination negotiations is inadmissible in any proceedings on a complaint under section 111. This is subject to subsections (3) to (5). (2) In subsection (1) “pre-termination negotiations” means any offer made or discussions held, before the termination of the employment in question, with a view to it being terminated on terms agreed between the employer and the employee. … (4) In relation to anything said or done which in the tribunal’s opinion was improper, or was connected with improper behaviour, subsection (1) applies only to the extent that the tribunal considers just.”
[31]Time limits for the bringing of discrimination claims before an Employment Tribunal are laid down by section 123 EqA 2010 :
“(1) Proceedings on a complaint within section 120 may not be brought after the end of - (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. (2) Proceedings may not be brought in reliance on section 121(1) after the end of - (a) the period of 6 months starting with the date of the act to which the proceedings relate, or (b) such other period as the employment tribunal thinks just and equitable.”
Discussion and Conclusions (1) The Scope of the Discrimination Claim[32]As a general rule, an Employment Tribunal is not only entitled but bound to decide a case in accordance with those allegations that have been properly set out in details of the claim. The original ET1 had contained no specific allegations of sex discrimination at all. It would have been quite impossible to use it as a basis for deciding such allegations. The Employment Tribunal permitted the Claimant to raise them in Further and Better Particulars. It made it plain that the allegations must be specific. Allegations of sex discrimination are serious matters, and they must be clearly set out. The Claimant then set out in her response the seven allegations that the Employment Tribunal recognised as being her case. This was the document the Employment Tribunal was required to use in order to assess her allegations.[33]In her bias affidavit the Claimant says (paragraph 12):
“12. I now understand having taken advice on the matter that the norm should be for the issues to be agreed between the parties before the case starts and in the absence of agreement the Tribunal itself would need to determine the scope of the issues to be determined and to consider whether or not issues that a party wished to raise were part of the pleaded case. At no point was I asked whether I agreed the issues that the Respondent had set out either by the Respondent or the Tribunal.”
[34]I am satisfied that prior to the commencement of the evidence the Employment Judge went through the issues with the Claimant, identifying that there were seven allegations of sex discrimination and explaining the time issues. This is plain not only from the evidence of the Employment Judge and his members but also from the handwritten notes of Mr Swindlehurst. The Claimant did not apply to add any further issues. The hearing proceeded on these issues. I see no bias or procedural impropriety in the course that the Employment Judge took.[35]This still leaves the question: should the Employment Judge have done more to assist the Claimant to bring the case that she now says she wishes to bring? As I have said, in two respects she had mentioned in her witness statement allegations of sex discrimination that contrary to the Order of the Employment Tribunal she had not set out in her Further and Better Particulars.[36]The extent of an Employment Tribunal’s duty to a litigant in person has been considered by the Court of Appeal in Mensah and most recently in Drysdale , where the principles were summarised as follows:
“49. … (1) It is a long-established and obviously desirable practice of courts generally, and employment tribunals in particular, that they will provide such assistance to litigants as may be appropriate in the formulation and presentation of their case. (2) What level of assistance or intervention is ‘appropriate’ depends upon the circumstances of each particular case. (3) Such circumstances are too numerous to list exhaustively, but are likely to include: whether the litigant is representing himself or is represented; if represented, whether the representative is legally qualified or not; and in any case, the apparent level of competence and understanding of the litigant and/or his representative. (4) The appropriate level of assistance or intervention is constrained by the overriding requirement that the tribunal must at all times be, and be seen to be, impartial as between the parties, and that injustice to either side must be avoided. (5) The determination of the appropriate level of assistance or intervention is properly a matter for the judgment of the tribunal hearing the case, and the creation of rigid obligations or rules of law in this regard is to be avoided, as much will depend on the tribunal’s assessment and ‘feel’ for what is fair in all the circumstances of the specific case. (6) There is, therefore, a wide margin of appreciation available to a tribunal in assessing such matters, and an appeal court will not normally interfere with the tribunal’s exercise of its judgment in the absence of an act or omission on the part of the tribunal which no reasonable tribunal, properly directing itself on the basis of the overriding objective, would have done/ omitted to do, and which amounts to unfair treatment of a litigant.”
[37]Applying these principles and contrary to Mr Self’s submission, I do not think that the Employment Tribunal was biased, committed procedural irregularity or erred in law in failing to question whether the Claimant wished to apply to list further issues or to amend her claim. It was fair and even-handed for the Employment Tribunal to go through the issues and check that the Claimant understood what the Employment Tribunal believed the issues to be and what time points arose out of them. The Employment Tribunal was not required to tease out from the Claimant allegations that she had the opportunity to put fairly and squarely in her Further and Better Particulars if she wished to make them. It might have been very unfair to the Respondent and its witnesses to permit allegations to be added in this way. The Employment Tribunal was entitled to hold the ring between the parties. It did this by ensuring that the Claimant understood the allegations that the Employment Tribunal believed to be in play and what resulted from those allegations. It was for the Claimant, if she thought those allegations did not reflect the case that she now wished to bring, to make that point clear herself. She does not suggest in her affidavit that she did, and I am satisfied that the Employment Tribunal dealt with the matter properly. (2) Continuing Act[38]I reject Mr Self’s argument that the Employment Tribunal provided insufficient reasons for treating the seven matters that the Claimant put forward as individual acts. The test that the Employment Tribunal had to apply is well known. It is sufficient to cite Hendricks at paragraph 52:
“52. … the focus should be on the substance of the complaint that the commissioner was responsible for an ongoing situation or a continuing state of affairs in which female ethnic minority officers in the service were treated less favourably. The question is whether that is “an act extending over a period” as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed.”
See also paragraph 48 to similar effect.[39]The Employment Tribunal had listed at the start of its Reasons the seven acts upon which the Claimant relied. It referred back to that list in paragraph 68 of its Reasons. No extended reasoning was required to see that these were remarkably different in nature and timing. It is true that six of the seven concerned her line manager in some way, but that is hardly surprising. He had been her day-to-day manager over the whole period. While his involvement was a relevant matter, it was not conclusive (see Aziz ), and the Employment Tribunal was entirely justified in holding that the collection of very different, largely minor matters that the Claimant sought to put forward as instances of sex discrimination were really individual matters. (3) Just and Equitable Extension[40]I reject Mr Self’s argument that the Employment Tribunal misunderstood or misapplied Robertson . It quoted Robertson correctly and appositely in paragraph 59 of its Reasons. At the same time it said, correctly, that it had a broad discretion to extend time if it thought it just and equitable to do so, and it set out a list of relevant factors that it should take into account. Its legal approach, therefore, was to my mind correct, and I see no reason to deduce from its subsequent conclusions that it fell into the error of law that Mr Self suggests.[41]Further, I reject his argument that the Employment Tribunal was required in its Reasons to deal with each allegation individually. It is true that for the purposes of considering just and equitable extension they were being treated as individual acts, but the reasons that the Employment Tribunal gave applied across the board. The degree of evidential prejudice might vary from allegation to allegation, but all involved investigation of matters substantially outside the time limit. Even the last, which related to the size of the compromise offer made at the end of July, involved comparison with an earlier offer made to a different employee, a Mr Briscoe, who had left in 2012. Mr Self indeed tells me that the Claimant also relied on two other comparators, though she did not name them in her Further Particulars. The Employment Tribunal committed no error of law by giving a composite set of reasons covering the allegations as a whole. The reasons were, in truth, common to them.[42]Further, I reject his argument that the Employment Tribunal did not take into account the prejudice to the Claimant in being unable to pursue her claims. That prejudice, like the prejudice to the Respondent in having to defend a claim that is brought outside the primary time limit, is an obvious matter not requiring express statement. I see no error of law in the way the time limit question was addressed. To my mind, the Employment Tribunal applied the law correctly and gave sufficient reasons. (4) Constructive Dismissal[43]I reject Mr Self’s argument that the Employment Tribunal failed to make sufficient findings about the meeting on 9 July. The findings of primary fact relating to that meeting are set out in paragraphs 36 and 37. The Claimant herself raised the question of the Tamar report. Mr Nokes and Mrs Bridgewater had been unaware of it. They were senior members of management concerned at what had happened on the account given by the Claimant. The Employment Tribunal accepted that they were justified in their concerns (see paragraph 64 of its Reasons). It found that the Claimant behaved in a most unprofessional way, sending a report to a client without having it approved by Mr Reynolds and contrary to his direction. Therefore, as it said in paragraph 64, it was appropriate to offer her the opportunity to leave by agreement; it did not amount to an ultimatum. These were findings that the Employment Tribunal was entitled to make, they contain no error of law, and they are, to my mind, sufficient to deal with the meeting on 9 July.[44]I turn then to the question of section 111A ERA 1996 . This provision applies to “Evidence of pre-termination negotiations”. A definition is given in section 111A(2). Subject to the exceptions set out in section 111A it would be an error of law for the Employment Tribunal in determining a question of constructive unfair dismissal to place material weight on evidence of pre-termination negotiations, for they will be inadmissible (see the recent decision of HHJ Eady QC in Faithorn Farrell Timms LLP v Bailey UKEAT/0025/16). I shall assume, without deciding, that what took place on 9 July involved to some extent “pre-termination negotiations” within the meaning of section 111A.[45]It must be kept in mind, however, that it was the Claimant who relied on what took place on 9 July as part of her constructive dismissal case. Section 111A permitted her to do so in relation to anything said or done that was improper (see section 111A(4)). It was the Claimant’s case that what took place on 9 July was improper. The Employment Tribunal was therefore bound to look at what took place on 9 July to see if it was improper. It did so; it decided that it was not improper (see the last sentence of paragraph 64). This, to my mind, is the only use the Employment Tribunal made of anything that might be described as “pre-termination negotiations” in determining the claim of constructive dismissal. It made use of it in order to deal with an argument of the Claimant. To my mind, it committed no error of law in doing so. It was not referred to and evidently did not have in mind section 111A, but, in my judgment, the way it approached the case did not offend section 111A.[46]I would add that the Claimant also referred to pre-termination negotiations in support of one of her heads of sex discrimination. Section 111A does not apply to sex discrimination claims, and she was entitled to do so.[47]I do not find it necessary for the purpose of this appeal to decide definitively what took place on 9 July amounted to pre-termination negotiations for the purpose of section 111A, nor do I find it necessary to decide the precise ambit of what might be “improper” for the purpose of section 111A(4). Suffice it to say that the Employment Tribunal committed no error of law by the use it made of any evidence concerning those negotiations. (5) Bias[48]A Tribunal will be biased if it has some predisposition to make up its mind for or against a party or if it closes its mind to hearing evidence or submissions from a party. It is not necessary and will often be impossible to prove actual bias; it is sufficient to establish apparent bias. The test is well known. The Employment Appeal Tribunal must first ascertain all of the circumstances that have a bearing on the suggestion that the Employment Tribunal was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the Tribunal was biased.[49]I have looked carefully at the various matters put forward by the Claimant in her affidavit and in that portion of the skeleton argument of Mr Self that was incorporated in her amended Notice of Appeal. I have weighed them in the light of the material as a whole including the Employment Tribunal’s comments and the evidence of Mr Swindlehurst and his notes. I am entirely satisfied that no case of bias is made out.[50]To a significant extent, the case of bias depends on complaints that the Employment Tribunal did not address correspondence prior to the hearing. For example, there had been an application by the Claimant for an order for costs. She had been some expense in preparing her own version of the bundle. The email was one of a series that she sent to the Employment Tribunal prior to the hearing. Also, she sent a request for witness orders to be directed to two persons who were employed by third parties, and there was correspondence relating to disclosure. There is no reason to suppose that the Employment Judge at the hearing, Employment Judge Hutchinson, had anything to do with any of this correspondence. It is correspondence of the kind with which it is extremely difficult for an Employment Tribunal to deal outside a hearing. I do not know whether all of it was the subject of a response. I know that the Regional Employment Judge responded to one item by asking the parties to reach agreement if they could. But, to my mind, nothing in the pre-hearing correspondence or the way it was dealt with begins to bring home an allegation of bias. I shall not deal with each point individually. I have looked at all of them in the round, and I am satisfied that this is the case.[51]It is then said that the Employment Tribunal exhibited bias because it admitted and placed reliance on notes of a meeting on 9 July that were not disclosed until the hearing. The Claimant says in her affidavit that they were added to the bundle without question. The Employment

Judge says:

“With regard to the acceptance of the notes that were disclosed just before the hearing, I do recall a discussion about these. I do not accept that the tribunal in allowing these documents to be produced was in any way an indication that we were biased against the Claimant. They were relevant to the issues and an explanation had been given as to why they had been discovered at a late stage and we were satisfied that no prejudice was caused to the Claimant.”
[52]Ms Drummond confirms that the Employment Tribunal considered the matter and decided to let the notes in; likewise, Mr Swindlehurst in his affidavit at paragraphs 4 to 5, and while his notes are not entirely clear there is a passage in his notes that indicates that the point was a matter of debate before the Employment Tribunal. I have no doubt, looking at the material as a whole, that the Employment Tribunal reached a case management decision to allow the notes to be incorporated in the bundle and that this was a decision of a quite ordinary kind for an Employment Tribunal, the kind with which it is faced in many cases up and down the country, and that it is not remotely indicative of bias.[53]It is then said that there are minor errors in the Judgment and Reasons relating to figures and the like. At least one of these appears to have been an error in the Claimant’s favour. The Claimant in her affidavit says that these matters are not pursued as allegations of bias, but I have considered them, and I am satisfied that, taken individually or collectively, they come nowhere close to establishing the relevant test.[54]I have looked at the grounds as a whole. I am entirely satisfied that the allegation of bias is without foundation and that the Claimant had a fair hearing from an Employment Tribunal that was free from bias, actual or apparent.[55]For these reasons, the appeal will be dismissed.