MRS F HASSANZADEH v (1) CITY OF BRADFORD MDC (2) NATIONAL UNION OF TEACHERS (3) THE GOVERNING BODY OF BELLE VUE BOYS SCHOOL [2016] UKEAT 0182_15_1104

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2016] UKEAT 0182_15_1104Case No Appeal No. UKEAT/0182/15
Between
MRS F HASSANZADEHAPPELLANT(1) CITY OF BRADFORD MDC (2) NATIONAL UNION OF TEACHERS (3) THE GOVERNING BODY OF BELLE VUE BOYS SCHOOLRESPONDENT
Before
Her Honour Judge EadyDate 11 April 2016
[1]APPEARANCES For the Appellant MR RAHIM SHOJAEE (The Appellant's Husband) For the First and Third Respondents MS RACHEL MELLOR (of Counsel) Instructed by: City of Bradford MDC Educational & Employment Team City Hall Bradford West Yorkshire BD1 1HY For the Second Respondent MS KATHERINE FUDAKOWSKI (of Counsel) Instructed by: National Union of Teachers Hamilton House Mabledon Place London WC1H 9BD SUMMARY PRACTICE AND PROCEDURE - Bias, misconduct and procedural irregularity JURISDICTIONAL POINTS - Claim in time and effective date of termination JURISDICTIONAL POINTS - Extension of time: just and equitable The Claimant had pursued claims of race discrimination, whistleblowing, and disability discrimination against the First and Third Respondents and of disability discrimination, victimisation and unlawful detriment against the Second Respondent (the trade union of which she was a member). At a Preliminary Hearing the Regional Employment Judge ("REJ") heard applications relating to the claims against the Second Respondent (largely relating to whether those claims had been brought in time or whether it would be just and equitable to extend time). Having heard from the Claimant and the Second Respondent, the REJ stated she had reached a decision on these matters but would not announce it at that stage. The REJ turned to the matters relating to the claims against the First and Third Respondents. Having not been able to complete submissions that day, the Claimant and those acting for the First and Third Respondents were permitted to make further written representations, limited to matters raised at the hearing. Upon receiving submissions from the Claimant, the REJ became aware that allegations were being made against a TU representative who was a lay member in that region. She took the view that "beyond doubt" she would not have started to hear the case if she had known this before and set in motion the process of transferring the case to another region. Nonetheless, she proceeded to reach decisions on the matters relating to the claims against the First and Third Respondents, and sent out her Reserved Decisions in this respect (striking out the race discrimination, whistleblowing and unfair dismissal claims and giving directions, including for the joint instruction of a medical expert, in the disability discrimination claim), and to communicate her earlier decision in respect of the claims against the Second Respondent (finding the claims were brought out of time and it was not just and equitable to extend time). The Claimant appealed on the grounds of apparent bias and on the basis that the ET had improperly failed to consider the Claimant's case at its highest when deciding to strike it out and/or had applied the wrong test and had also wrongly required the Claimant to participate in the instruction of a joint expert. Held : Allowing the Claimant's appeal against the decisions reached in respect of the claims against the First and Third Respondents but dismissing the appeal against the decisions relating to the Second Respondent. Apparent bias Having expressed the view that " beyond doubt " she would not have embarked upon the hearing of the claim if she had previously known " that a union representative whose conduct is criticised in the documents is one of this Tribunal's non-legal members ", it could be inferred the REJ had in mind her management responsibilities for the other Judges assigned to the region, including lay members. Whilst not strictly having to determine issues of credibility at that preliminary stage, the fact the complaint had been raised might well cause the reasonable observer to consider there was a risk to the complete impartiality of the REJ at that point: to accept the Claimant's case at its highest (as she was bound to do) would be to accept the allegations against one of the lay Judges assigned to that region. That being so, the REJ's response made clear she should have recused herself at that stage from making any further determinations in the claims. The appeal on this ground would be allowed so far as it related to the First and Third Respondents. The decisions on those claims would be set aside and the case remitted for onward transfer to another region and for fresh consideration by a different ET. The objection of apparent bias did not, however, apply to the decisions relating to the Second Respondent. The objective observer would bear in mind that the REJ had in fact already reached her decision on these points before learning of any complaint or issue about a lay member of the region. That fact had been communicated to the parties at the Preliminary Hearing, although the substance of the decision had not yet been communicated. Whilst the Claimant may have had difficulties in trusting that position, the test was not limited to her perspective but extended to that of the objective and properly informed observer. There was no proper basis for that observer to think that the REJ changed the decision once the objection to the lay member had been raised. The only question that then arose was whether it was wrong for the REJ to communicate the decision she had already reached once she became aware of those allegations. Given that she had reached the decision and given that she had told the parties of this fact, the objective observer would not consider there was any possibility of bias. Decision on time limits and extension of time The only other issue raised relevant to the Second Respondent related to the REJ's ruling that the claims had been brought out of time and that there was no basis to extend time. Given that the relevant dates were not in issue, the only relevant finding made by the REJ was that the Second Respondent's letter of 10 January 2013 to the Claimant was not part of a continuing act but merely a re-statement of what had already been communicated. That was a permissible conclusion: the REJ was considering the Claimant's case on its highest but, doing so, concluded that it was not reasonably arguable; repetition of a party's position does not give rise to new decisions nor does it amount to a continuing act. The appeal in respect of the decisions relating to the claims against the Second Respondent would accordingly be dismissed. HER HONOUR JUDGE EADY QC Introduction I refer to the parties as the Claimant and the First, Second and Third Respondents, as below. This is the Claimant's appeal against a Judgment of the Leeds Employment Tribunal (Regional Employment Judge Lee ("the REJ"), sitting alone on 19 May 2014; "the ET"). The Claimant was represented below by her husband, as she is today. The First and Third Respondents were then represented by counsel. The Second Respondent was then represented by an officer of the union but today is also represented by counsel.[2]By that Judgment the ET struck out the Claimant's claims against the Second Respondent as being out of time when it had been reasonably practicable to bring the claim in time, alternatively, in circumstances such that it was not just and equitable to extend time. In respect of the claims against the First and Third Respondents, the ET dismissed the Claimant's claims of detriment by reason of a public interest disclosure and of unfair constructive dismissal as having no reasonable prospect of success. That left complaints of disability discrimination, in relation to which the ET gave directions for the further conduct of those claims, including a direction for the instruction of a medical expert on the question of disability, in respect of which the Claimant was directed to be jointly involved.[3]Having initially been considered by HHJ Peter Clark to disclose no reasonable grounds, the appeal was permitted to proceed by HHJ Richardson after a Rule 3(10) Hearing, limited to the following amended grounds:(1) knowing the Claimant was criticising John Howarth, a representative of the Second Respondent and sometime lay member of the Leeds ET, REJ Lee should have recused herself;(2) the REJ, having declined to hear evidence, was required to take the Claimant's case at its highest but did not do so;(3) the ET erred in law in striking out claims and forming opinions as to prospects of success when the claims were fact sensitive; and(4) the REJ further erred in requiring the Claimant to participate in a joint expert report against her will: it was for the Claimant to decide how to substantiate her claim of disability.[4]In respect of the first ground of appeal ("bias"), directions were given for the REJ to provide further information and she provided her comments by letter of 13 July 2015. The ET Hearing, Decisions and Reasons[5]The Claimant's ET claim had been presented on 19 March 2013. The procedural history became somewhat delayed, but suffice it to say a Preliminary Hearing was convened to determine whether it had been presented out of time and/or whether it or parts of it had reasonable prospects of success. As the REJ has explained (paragraph 1 of the Reasons for the Judgment and in her subsequent letter to the EAT), given that the claims and issues raised in respect of the case brought against the Second Respondent were rather more straightforward than those relating to the First and Third Respondents, she adopted the course of hearing first from the Second Respondent and the Claimant in response to those matters before going on to consider the issues raised in respect of the claims against the First and Third Respondents.[6]Adopting that course, the REJ reached a decision on the matters relevant to the claims against the Second Respondent at the hearing itself and told the parties she had done so at that stage. She did not, however, announce the decision, because, as she then explained, she felt this might unnecessarily distract focus from the other issues and there was a risk there would be insufficient time to consider all the matters listed for the hearing. Having made that position clear, the REJ allowed the representative for the Second Respondent to leave, and the hearing turned to the issues arising in respect of the claims against the First and Third Respondents.[7]The REJ's concern about timing proved to be justified. To ensure all points had been dealt with, she permitted further written submissions to be lodged in respect of the claims relating to the First and Third Respondents, limited to the matters discussed at the hearing, otherwise reserving her Judgment in those respects. That Judgment was subsequently provided in writing, along with the decision on the claims relating to the Second Respondent, albeit that decision had been reached at the hearing.[8]During the course of the Preliminary Hearing the REJ had regard to witness statements submitted for the Respondents, although the witnesses were not called to give evidence. The REJ explains the course she adopted was for statements to be read, to enable her to understand the Respondents' position in respect of the Claimant's contentions, but for the witnesses only to be called if the Claimant's representative wished to ask questions of them; if not called, that was because he had not made it apparent he wished to cross-examine the witnesses.[9]It was upon receiving the Claimant's further written submissions subsequent to the Preliminary Hearing that the REJ saw for the first time that the Claimant was (amongst other complaints) making complaint about a previous representative of the Second Respondent, Mr Howarth, who was one of some 100 lay members who sit from time to time at the Leeds ET. As the REJ records:
"5. … Although I cannot recall ever having sat with Mr Howarth, beyond doubt I would not have embarked on hearing this claim had I known that a Union representative whose conduct is criticised in the documents is one of this Tribunal's non legal members. …"
[10]As recorded above, the REJ had already reached a concluded view on the issues raised in respect of the claims against the Second Respondent. The decision and reasoning in that regard is set out at paragraph 9. It is noted only one claim was made in the ET1 that the ET could have jurisdiction to determine; a disability discrimination claim made under section 57(2) of the Equality Act 2010 ("EqA"). Although there had been no relevant application to amend (notwithstanding opportunity having been given to do so), the ET had itself previously also identified a possible claim of victimisation under the EqA and/or a claim of unjustifiable detriment under the Trade Union & Labour Relations (Consolidation) Act 1992 and it therefore also considered those as potential claims.[11]The substance of the Claimant's complaint against the Second Respondent was that it had failed to advise her, as a member, on the possibility of requesting a stress risk assessment - something said to be because of her disability or a failure to make a reasonable adjustment - and had, on 4 October 2012, withdrawn legal assistance - potentially put as an act of victimisation and/or unjustifiable detriment. The Second Respondent denied those claims, stating the reason for the removal of representation was because the Claimant had authorised her husband to represent her, thus preventing the Second Respondent from doing so effectively; it had, in accordance with its rules, therefore withdrawn assistance. As for the relevant date for any complaint, the decision was communicated on 4 October 2012 and the Claimant's subsequent appeal rejected on 12 December 2012, as communicated by letter of 14 December 2012. The ET claim was presented on 19 March 2013, more than three months later. Even then, there was no reference to victimisation or unjustifiable discipline until 27 November 2013, more than 11 months after the appeal was rejected. Those dates were not in dispute, but the Claimant sought to rely on a subsequent communication from the Second Respondent of 10 January 2013. The ET rejected the submission that this could be either a freestanding act of detriment or part of a continuing act; it was simply confirmation of the position already communicated. That being so, the ET concluded that the claims against the Second Respondent were out of time.[12]It considered whether it would be just and equitable to extend time in respect of the discrimination claims but concluded it would not: the Claimant was aware of the time limits; she had not relied on ill health - hers or her husband's - as a reason for failing to lodge her claims in time; her claims of victimisation and unjustifiable discipline had no reasonable prospect of success, and she had been unable to explain why the decision to withdraw assistance should be in any way linked to her husband's criticisms of the Second Respondent as opposed to her use of a different representative. Moreover, the claims of disability discrimination were unclear, notwithstanding earlier attempts to clarify them. The best the ET could discern was that the Claimant was arguing the Second Respondent had failed to advise her properly on the need for a stress risk assessment at an early stage and had refused to permit her husband to represent her at meetings. Even accepting the Claimant's contentions, the ET was unable to see any facts that would show any failure on the Second Respondent's part was because of, or related to, her disability. As for her husband's attendance at meetings, given the Second Respondent's view that he was undermining its ability to represent and advise her, it was highly improbable any ET would conclude that, in failing to vary its normal procedure of refusing to allow a relative to be involved in representation, the Second Respondent had failed to make a reasonable adjustment. All of those points went to whether it was just and equitable to extend time; the REJ was satisfied it was not. In the alternative, she would have struck out the victimisation and unjustifiable discipline claims as having no reasonable prospect of success and would - subject to means - have been minded to order a deposit in respect of the remaining disability discrimination claims.[13]Turning to the claims against the First and Third Respondents, the REJ recorded that the issues that had led to the ET proceedings had stemmed from concerns about the Claimant's teaching practice in 2010 and 2011. Specifically, the Claimant believed that her line manager (Mrs Ogley) had raised concerns out of jealousy because the Claimant had, it was alleged, received a better Ofsted score than Mrs Ogley had in 1996. There were various specific matters complained of, all pre-dating the Claimant's sick leave, which started on 28 September 2012, and had continued until she resigned on 15 January 2014.[14]The REJ was satisfied all pleaded allegations of race discrimination (the most recent being in 2011) were out of time and had been so even when the Claimant's sick leave had commenced. Moreover, the acts could not be said to be part of a continuing act. They went back over many years, involved numerous persons at the First, Second and Third Respondents, and no direct or discernible link had been put forward relating to race.[15]The REJ considered whether it was just and equitable to extend time but - noting that the claim had been presented some 21 months after the last pleaded acts - there was, again, no explanation for the delay in circumstances in which the Claimant was aware of the relevant time limits, and there was little prospect of success: even on the Claimant's case, race did not form any part of her analysis of the course of conduct of which she complained. It was not just and equitable to extend time.[16]Turning to the public interest disclosure claim, the ET rejected the Claimant's criticisms made to a former Head Teacher constituted disclosures of information (as opposed to allegations) and also concluded the Claimant had failed to demonstrate any content that might constitute a qualifying disclosure in her telephone call to the HSE of 23 January 2013. It allowed that the Claimant's email of 2 October 2012 might constitute (at least in part) a qualifying disclosure but the correspondence clearly showed her employer offered to conduct a stress risk assessment but the Claimant had - against her trade union's advice - attached pre-conditions. In the circumstances, the claim had no reasonable prospect of success and, in the absence of any other proportionate way of dealing with it, should be dismissed.[17]On the constructive unfair dismissal claim, the ET set out what it understood to be the matters relied on by the Claimant; essentially reassertions of her allegations that the Respondents had breached the express obligation to complete a stress risk assessment or process a premature retirement arrangement any sooner. The ET accepted the Respondents' contention that numerous documents throughout the bundle were inconsistent with the Claimant's allegation that her resignation was as a result of the Respondents' conduct; it found the Claimant had not resigned as a result of the alleged conduct. It had already concluded that the Claimant would have no reasonable prospect of success in showing that the Respondents were at fault - as she alleged - and that there was no breach of obligation. More generally, she had waited too long before resigning to rely on the earlier matters and, during the period of delay, she had actively participated in arranging ill health retirement, which was inconsistent with the allegation that she believed she could no longer trust the Respondents.[18]Although the ET struck out or dismissed the Claimant's claims as set out above, her claim of disability discrimination against the First and Third Respondents continued. As to when, if at all, the Claimant became disabled and/or the Respondents had sufficient knowledge to trigger any obligation of reasonable adjustment, the ET recorded the various evidential difficulties and directed that a jointly instructed expert medical report be obtained.[19]Returning to the issue of bias, the REJ was invited to comment on this point, in particular as to whether consideration was given to the possibility of recusal once Mr Howarth's position was known. Her response can be summarised as follows. As for the claims against the Second Respondent, she did not recuse herself because she had, as the parties were aware, already made her decision and she did not consider any apparent bias arose in communicating it. On the claims in respect of the First and Third Respondents, the REJ made four points:(1) she had already heard argument for a full day before she became aware of the problem;(2) the claim was already over a year old, and there had been a lot of delay and copious correspondence;(3) the Claimant's husband had chosen to direct most correspondence to the REJ and had ample opportunity to raise the issue before but had not done so;(4) the decisions she had to reach did not depend on anything Mr Howarth had or had not done or said but on questions of time limits and prospects of success against the Respondents. Submissions The Claimant's Case[20]First, on the bias point, it was noted that the REJ had not recused herself from the proceedings after providing her Judgment and Reasons subsequent to the Preliminary Hearing; she should have done so on 30 May, as she was then aware of the degree of conflict between the Respondents and the Claimant and the allegations raised against Mr Howarth.[21]In respect of the Second Respondent, the Claimant did not accept that the REJ had already reached a decision; whilst she might have stated that she had, that was not a decision because she had not communicated it to the parties. Even if she had reached a decision, however, she would have been obliged to set aside the decision once learning of the allegations against Mr Howarth because of the importance of not being seen to be biased. For any fair minded and informed person looking at the issue as to when the information relating to Mr Howarth appeared, the first question that would arise would be as to why he and the Second Respondent had not declared that issue before, and it should have raised a question in the REJ's mind as to how she was able to form any view as to the evidence of other witnesses for the Second Respondent (the statements of which she had considered at the Preliminary Hearing). Once the REJ was aware of the issue raised against Mr Howarth, then she should have made no further decisions in the case, but she did, and those were hostile to the Claimant and raised further questions as to how the complaints regarding Mr Howarth had influenced her.[22]Turning next to grounds 2 and 3 and addressing those together, because the issues overlapped, the Claimant contended that the REJ's jurisdiction at the Preliminary Hearing was limited to taking the Claimant's case at its highest, although in fact there was also evidence before her in terms of the documentation that went to support the Claimant's case. More specifically, in apparently forming the view that the disclosures relied on by the Claimant were mere allegations rather than information, the REJ erred, when that was not a clear cut distinction that she should have drawn at that stage. In making that submission the Claimant referred to a finding on qualifying disclosure that had in fact been made in her favour. Accepting that the REJ had actually found (for the Claimant) that the email of 2 October 2012 was (at least in part) a qualifying disclosure, it was then wrong to rule that the claim had no reasonable prospect of success when the ET had not heard all of the evidence and made findings of fact. That was all the more so given the ET's refusal to hear a strike out application of the Respondents' responses because there needed to be findings of fact on the evidence.[23]As for the fourth ground of appeal and the question of expert medical evidence, that was a decision that the REJ had considered earlier but only made the Order 2½ months after the May Preliminary Hearing. Previously, it had been directed that the Claimant's GP would give evidence on the second day of a Preliminary Hearing, but the ET apparently then took the view that there should be an attempt to avoid the need for medical practitioners to attend. That was done whilst the Claimant's GP had made an offer to make available all of the Claimant's medical notes. The REJ was adopting an inquisitorial role and proactively seeking a joint medical report, when the ET's role was to consider the evidence put before it by the parties. In the Claimant's case, that was to be her GP's records; so, there was no reason for the ET to make an Order for a jointly instructed expert. The First and Third Respondents' Case[24]On the apparent bias point, the test was as laid down in Porter v Magill [2001] UKHL 67 . That required that the Court must first ascertain all of the circumstances. There were two particularly relevant material circumstances in the present case:(1) when the ET became aware of the issue; and(2) when the Claimant became aware of it. If the REJ did not know of the relevant matter the danger of it having influenced her Judgment was eliminated ( Locabail (UK) Ltd v Bayfield Properties Ltd and Anor [2000] QB 451 CA). The Claimant's knowledge was also relevant ( Locabail , paragraph 15). The Claimant was the only person in possession of the information about Mr Howarth at the time of the 19 May hearing but chose not to raise it until afterwards. She had been permitted to make further written representations on a limited basis and should have been taken to have waived the right to complain. The fair minded, informed observer would not consider there to be a real danger of bias: (1) the REJ had no personal connection or interest in the outcome of the claim; (2) she could not recollect sitting with Mr Howarth (one of some 100 lay members in Leeds);(3) he had not been a party to any of the case management decisions and the issues for the REJ at the Preliminary Hearing did not depend on anything he had or had not done or said but on issues concerning timing and prospects of success; and(4) the Claimant had waived her right to complain.[25]Even if those points were not correct, the allegations against Mr Howarth could not impact against the First and Third Respondents even if they did the Second Respondent. The issues raised against him went to the claims against the Second Respondent not the First and Third Respondents. Moreover, just to say an issue of credibility has been raised against one of the lay members in the region does not mean sufficient has been raised to raise a risk of bias so far as the claims against the First and Third Respondents were concerned. Equally, although the REJ had stated, "beyond doubt", she would not have embarked on the hearing if she had known of the allegation relating to Mr Howarth, it was an objective test and its application would lead to the view taken by the REJ in her response to the EAT.[26]Addressing the second and third grounds of appeal together, the First and Third Respondents observed that the ET's decision was based on the way the Claimant presented the claim; it was taken at its highest - in the Claimant's favour - and would not have been altered by evidence in any event. It was not right for the Claimant to complain of having been denied the right to cross-examine witnesses; that was not a fair representation of what had happened (see paragraph 4 of the ET's reasoning). Moreover, whilst the First and Third Respondents accepted that the ET's strike out power should be used sparingly where there was a factual dispute, it remained acceptable to do so where no real substance in the factual assertions made were made particularly if corrected by contemporaneous documents (see per Maurice Kay LJ in Ezsias v North Glamorgan NHS Trust [2007] EWCA Civ 330 ). The correct test was that set down in City of Edinburgh Council v Kaur [2013] CSIH 32 at paragraph 23: there had to be some reasonably arguable basis for the Claimant's assertions.[27]The ET here had tested the Claimant's claim on its own merits. On the race discrimination claim, on the Claimant's own case, the last act was significantly out of time. On the whistle blowing claim, the ET considered the Claimant's case on detriment and considered it demonstrated no reasonable prospect of success. On constructive unfair dismissal, again, the REJ had taken the Claimant's case at its highest and concluded her resignation was not the result of any alleged misconduct on the part of the Respondents.[28]On the fourth ground of appeal, the question was whether or not - having regard to the overriding objective - the parties were unable to prepare their case properly without instructing an expert ( Government Communications Headquarters v Bacchus UKEAT/0373/12/LA). This was a case sensitive case management decision. The ET's earlier directions regarding the medical evidence had fallen away. The Preliminary Hearing originally listed could not go ahead due to the Claimant's ill health. The GP's letter that the Claimant had referred to had been directed to the question as to her ability to participate in the ET proceedings; the offer of the notes was for that purpose, not to assist in determining questions of disability or the time at which the Claimant was to be treated as disabled. In truth, the order was less one of a joint expert but directed the Claimant to co-operate in the obtaining of medical evidence. The question whether it was appropriate to make a direction in that regard needed to be seen in the light of the Claimant still being given the opportunity to decline to co-operate. In any event, by that stage there was little else that the ET could do to resolve matters any further. The Second Respondent's Case[29]Taking first the bias point, this ground could not properly apply in the Second Respondent's case. The REJ had made clear the issues relating to the claims against it had been determined: she had formed a concluded view before knowing of the complaints regarding Mr Howarth. She had reached her decision and had told the parties at the hearing that she had done so, but was not going to communicate her decision at that stage(i) because of time pressures, and(ii) because it would distract focus. The question was whether a fair minded, informed observer would consider that the decision to communicate the earlier decision gave rise to an appearance of bias. There was no basis for considering it did: the REJ's obligation was to communicate the decision she had reached, and she properly did so. She - rightly - did not re-visit her decision but simply communicated it. In any event, the issues involving the Second Respondent related solely to the application of the time limits and any possible just and equitable extension of time; the involvement of Mr Howarth did not impact in any way on those points. That was to be distinguished from what might occur at a Full Merits Hearing (at which evidence might be needed to be taken from Mr Howarth), a distinction the REJ had drawn at paragraph 5 of her Reasons and in her response to the EAT.[30]The only other point that might be relevant to the claims against the Second Respondent arose from ground 2 and related to the witness statements put in by the Respondents, who had the witnesses at the ET available for cross-examination if the Claimant had wished to do so. The Claimant had not sought to adduce any evidence and so could not criticise the ET for not considering any. In any event, the EJ made plain she was not placing reliance on the witness evidence. Her approach had been as per Kaur . Generally, she could be taken to have accepted the Claimant's claim at its highest. So far as the case against the Second Respondent was concerned, the dates were not in dispute. The only point of evidence on which the ET had to form a view was on the letter of 10 January 2013, and the ET had been entitled to find that was not part of a continuing act but merely a restatement of what had already been communicated. Considering the Claimant's case at its highest, the REJ concluded it was not reasonably arguable. As for the conclusions reached as to what was just and equitable, that was for the REJ. The Claimant had not advanced any explanations, but the REJ had taken it upon herself to go through the relevant material and considered all points that could possibly have been raised. The Claimant in Reply[31]On the question of the disclosure of medical evidence (ground 4), the Claimant had disclosed fit notes from her GP to the First and Third Respondents during her employment, and they had been able to obtain Occupational Health reports; it was not the case that medical evidence had not been made available.[32]On the question of detriment (going to grounds 3 and 4), the REJ had been wrong not to take into account the impact of these matters on the Claimant. She had been suicidal and had had two nervous breakdowns. Those matters were before the REJ and would obviously give rise to a detriment. They were also relevant to the determination of the question of disability.[33]On ground 4, more generally, there were alternatives to requiring the Claimant to participate in the joint expert procedure; the information before the EJ made plain there was evidence as to the Claimant's vulnerable mental state and possible risk of suicide in the future. The Relevant Legal Principles Bias[34]It is common ground that the test for apparent bias is that approved by the House of Lords in Porter v Magill : that is, whether a fair minded and informed observer, having considered the facts, would conclude that there was a real possibility the Tribunal was biased. If so, there is no discretion; the Tribunal concerned must recuse itself; the public perception of the possibility of unconscious bias is key (see per Lord Steyn in Lawal v Northern Spirit Ltd [2003] ICR 856 at paragraph 14). Justice being seen to be done is a matter of public confidence, and it is this principle that underpins the approach that is thus to be adopted; and that will outweigh issues of administrative convenience that might otherwise arise ( AWG Group Ltd and Anor v Morrison [2006] 1 WLR 1163 , per Mummery LJ at paragraph 6).[35]In determining whether the fair minded and informed observer would conclude there was a real possibility a Judge was biased, the Court must ascertain all circumstances that might have a bearing on that question. Although no weight would be attached to a mere assertion by a judicial office holder that they were not biased, the material circumstances could include the Judge's explanation as to their knowledge or appreciation of those circumstances. What the material circumstances are will be those apparent to the Court upon investigation; they are not limited to those apparent to the hypothetical observer at the original hearing. That said, if the Judge simply did not know of the matter relied on, the danger of it having influenced the Judgment would be eliminated and the appearance of bias dispelled ( Locabail , paragraph 18). It is the Judge's actual knowledge that is relevant; there can be no real suspicion of bias where the Judge does not know of the relevant matters giving rise to the potential conflict of interest.[36]In Locabail it was further allowed that a party may waive the right to object to what might otherwise be taken to give rise to an appearance of bias but:
"15. … any waiver must be clear and unequivocal, and made with full knowledge of all the facts relevant to the decision whether to waive or not."
[37]Although no exhaustive list can be given as to the circumstances that might lead the fair minded and informed observer to conclude that there was a real possibility of bias - the question will always be fact specific - in Locabail at paragraph 25, the Court of Appeal sought to provide some guidance as to the kind of matters that might or might not be relevant. Striking Out[38]The approach to the striking out of claims, particularly claims of unlawful discrimination, has been considered in a number of cases. It is a draconian step, which is not to be undertaken lightly, particularly where the determination of the complaints is fact sensitive. As stressed by Maurice Kay LJ in Eszias :
"29. … It would only be in an exceptional case that an application to an employment tribunal will be struck out as having no reasonable prospect of success when the central facts are in dispute. An example might be where the facts sought to be established by the applicant were totally and inexplicably inconsistent with the undisputed contemporaneous documentation. …"
[39]The striking out of a claim as having no reasonable prospect of success is not the same thing, however, as determining that it is time barred. There is a distinction to be drawn between what is truly a jurisdictional point and what is a summary disposal on the merits (see Kaur at paragraph 22). That said, in either case, where a determination is being made at a preliminary stage - before the ET has found all of the relevant facts - the position would effectively be the same: the Claimant's case is to be taken at its highest and the facts assumed in her favour, not against her. That said, the ET is not obliged to assume that entirely fanciful allegations are true; there must be some reasonably arguable basis for the Claimant's assertions. Medical Evidence[40]Questions of the case management of medical evidence in disability discrimination cases (as in others) will - unless a real question of law has been identified or unless the decision reached can properly be said to be perverse or to have taken into account the irrelevant or failed to take account of the relevant - be a matter for the ET, and it will not be for an EAT Judge to interfere even if they might have reached a different decision. Discussion and Conclusions Appearance of Bias[41]Considering this point as it arises in respect of the claims against the First and Third Respondents, the difficulty is that, when coming to decide the points raised at the Preliminary Hearing, the REJ knew there was a complaint about a lay member of the Leeds ET. Regardless of whether or not she had sat with that lay member, the REJ's response to this information was made clear in her Written Reasons: " beyond doubt " she would not have embarked upon the hearing of the claim had she previously known: ". … that a Union representative whose conduct is criticised in the documents is one of this Tribunal's non legal members. …" (see paragraph 5, ET Reasons)[42]The REJ was equally clear that, from then on, she would make enquiries to transfer the case to another region to avoid the risk of apparent bias.[43]That forceful expression of the REJ's immediate response raises the obvious question as to why then - once she was aware of the relevant circumstances - she went on to make a decision in respect of the claims against the First and Third Respondents? It is certainly understandable why the Claimant would ask that question. As Ms Mellor observes, however, the test is not whether the Claimant might then fear there was a possibility of bias; it is, rather, an objective test. Ms Mellor submits that the objective observer would not assume that the position would be the same for the issues that the REJ had to determine at the Preliminary Hearing as contrasted with those that might have to be determined in the future; the REJ's remark in her Written Reasons could (and should) be taken to refer to the substantive issues that might need to be determined at any Full Merits Hearing (although that really related more to the claims against the Second Respondent) and not the Preliminary Hearing, as to which regard should be had to the reasons she had provided in her response to the EAT.[44]I agree that I must apply an objective test. Doing so, however, I do not think I can disregard the REJ's reasoned Judgment. She was not there limiting her response to any future Full Merits Hearing but expressly stated that she would not have embarked on hearing the claim had she known of those facts, clearly suggesting that she had in mind the Preliminary Hearing itself. It seems to me that, at this point, the objective observer would factor in - because she is reasonably well informed of these matters - that this is the REJ speaking; someone who has certain management responsibilities for the other Judges assigned to that region, including the lay Judges. Certainly, a REJ in such a position would be placed in a very difficult situation if faced with having to form a view about the credibility of the lay member concerned. That was not strictly the case here, but the fact the complaint had been raised might well give rise to a doubt in the mind of the reasonable observer as to the complete impartiality of the REJ at that point: to accept the Claimant's case at its highest would be to accept the allegations against one of the lay Judges assigned to that region. That would not be a concern limited to the claim against the Second Respondent; it would be a matter going to the view that might be formed of the party making the allegation. Although the REJ's Judgment does not explain her response in any great detail, these are the concerns that I infer informed her remark that, "beyond doubt", she would not have embarked upon the hearing if she had known of these facts.[45]That being so, I think that I must allow the appeal on this first ground in respect of the claims against the First and Third Respondents. Having formed the view that she would not have embarked upon the hearing in these circumstances had she known of the facts now presented to her, the REJ should then have recused herself from going on to make any decision in the claims against the First and Third Respondents. I do not consider that the fact that the Claimant raised the point at what might be described as slightly beyond the 11th hour changes that position. It was not a waiver of the point. Moreover, whilst the REJ no doubt (as a large part of her response to the EAT indicates) wanted to avoid further delay to the process, that could not outweigh the appearance of bias that she had, herself, recognised had arisen; whatever the cost and delay, if a Tribunal is tainted by bias it must recuse itself.[46]Does the same objection arise in respect of the Second Respondent? I do not think it does. The objective observer would be told at this point that the REJ had in fact already reached her decision on the points relating to the Second Respondent before learning of any complaint or issue about a lay member in that region. That fact had been communicated to the parties at the Preliminary Hearing, although the substance of the decision had not yet been communicated. I can see that this requires a degree of trust in the REJ, which the Claimant says she does not have, but I am not to view these circumstances merely from the perspective of the Claimant but of the objective and properly informed observer. There is no proper basis for that observer to think that the REJ changed the decision once the objection to Mr Howarth had been raised. The decision was reached in ignorance of that information, and that, as was made clear in Locabail , is sufficient to dispel any suggestion of an appearance of bias.[47]The only question that then arose was whether it was wrong for the REJ to communicate the decision she had already reached once she became aware of the allegations against Mr Howarth? Given that she had reached the decision and had told the parties of that fact, I cannot see that the objective observer would then consider that there was any possibility of bias. Indeed, the duty upon her was to communicate the decision that she had reached before becoming aware of the factors that would then give rise to an appearance of bias. I therefore dismiss this ground of appeal against the Second Respondent.[48]The only other point that relates to the Second Respondent in the appeal arises from the second ground; this concerns the REJ's ruling that the claims had been brought out of time and there was no basis to extend time.[49]On this question, the relevant dates were not in issue. The only relevant determination made by the REJ was that the Second Respondent's letter of 10 January 2013 was not part of a continuing act but merely a restatement of what had already been communicated. On this, however, I agree with Ms Fudakowski; that was a permissible conclusion. The REJ was considering the Claimant's case at its highest but, doing so, concluded that it was not reasonably arguable on this point: repetition of a party's position does not give rise to a new decision nor does it amount to a continuing act; it is simply repetition of the position. Although no real issue has been raised before me on the ET's conclusions on what was just and equitable, that also was a matter for the REJ, and I am unable to see that any point arises on which the Claimant's case was not taken at its highest. I therefore dismiss the appeal in its entirety against the Second Respondent.[50]As for the claims against the First and Third Respondents, I have allowed the appeal on the ground relating to the appearance of bias. Having done so, I do not need to determine the other points, and, given that they may be raised to be considered afresh, I do not consider it appropriate to comment further.