Appeal No.UKEAT/0825/03 & UKEAT/0826/03/TM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Sitting at: Immigration Appellate Authority, Breams Buildings, London EC4A 1DZ

	At the Tribunal
	On 9 March 2004

Before
THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)
DR S R CORBY
MR J HOUGHAM CBE

MRS F S HUDSON	APPELLANT

TESTWAY HOUSING LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE

Revised

	APPEARANCES

For the Appellant	MR V M S BRUCE
(By video link from 
Leeds Immigration Tribunal)	

SUMMARY

Practice and Procedure

Preliminary hearing held by video conference – at instance of advocate with disability.

UKEAT/0825/03/TM
No point of law – wholly academic appeal re order of closing submissions.

UKEAT/0826/03/TM
Allegation of apparent bias, by virtue of the Chairman’s asking, at the close of the Applicant’s case on constructive dismissal, whether the Respondent was making any submissions, rejected: Chairman should not have refused subsequent application to recuse without consulting members (which could have been done telephonically) but failure to do so was immaterial as it should/would have been refused anyway.

THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)

1.	This has been the Preliminary Hearing of two appeals against decisions made by the Tribunal in both cases in fact by the Chairman, Mr R J Byrne, sitting at Southampton, in relation to an application for constructive dismissal by Mrs Hudson against her former employer and the Respondent Testway Housing Ltd.

2.	In the event, the Applicant’s application for unfair constructive dismissal and unauthorised deduction from wages failed and were dismissed unanimously by the Tribunal, by a Decision given on 28 August and promulgated on 30 September 2003; but it is not against the substantive conclusions that these appeals are brought forward.

3.	The first appeal relates to an order made by the full Tribunal, at the close of the oral hearing which took one day on 26 June 2003.  That order provided as follows:  

“At the conclusion of hearing the evidence on behalf of both Applicant and Respondent the Tribunal made the orders: -
1.	The Respondent’s solicitors to submit to the Applicant’s representatives by posting on or before Friday 4 July written submissions in support of the Respondent’s case.  The Applicant’s representative to submit in the post to the Respondent’s representatives by Monday 14 July the written submissions in support of the Applicant’s case.  Both parties representatives to then submit, and exchange with each other, written submissions in final form to be put in the post to each other and the Tribunal on or before Monday 21 July.
2.	The Tribunal will come to its decision at a Reserved Decision Meeting on Thursday 28 August.”

4.	That Direction was given, as we have indicated, orally, at the close of the hearing on 26 June which was about 4.45 pm at the end of a long day, and Mr Bruce, who is, though a lawyer, not a qualified professional advocate, who represented the Applicant at the Tribunal, and has made submissions to us today at a ground-breaking video conference preliminary hearing, accepts that he did not say anything by way of objection to that course on the day.
5.	The Order having been made, he did object to it in writing subsequently, and, in particular, he made the point that he wanted to have the last say, and that reference had been made in submissions, which by then he had received, by the Respondent, to evidence and he would have liked to have seen notes of such evidence, and that an authority, Courtaulds Northern Textiles Ltd v Andrew [1979] IRLR 84, a very well known authority on the question of constructive dismissal, had been referred to and he felt that he should have an opportunity to respond to it.

6.	The result was that the Tribunal varied the directions by a letter dated 4 August to permit him, on the Applicant’s behalf, to submit submissions in reply to the Respondent’s final submissions, within seven days of receipt of those final submissions.  In a letter in response by Mr Bruce dated 5 August, he said that the variation of seven days was an impossible target, and at that stage referred to the fact that he realised now that Courtaulds had been referred to in the Respondent’s original submissions, and so he was not seeking to say that he was taken by surprise in any way, but that he had not had a copy of the decision and needed to obtain a copy of it.  On that basis a further extension was given until 21 August 2003.

7.	In the circumstances, therefore, as one would expect by way of the kind of flexibility of case management which Employment Tribunals operate, when the Applicant asked for time, with reasons given, he obtained it, and he suffered no prejudice as a result at all, and so to that extent, as Mr Bruce has accepted in the Court of argument today, the point is academic and moot, because he cannot contend that he has suffered any prejudice as a result of the order made.

8.	However, he says that there is a matter of principle here, that the order was wrong in principle, and that a case management order of this kind should never be made, because there is a fundamental right of the person carrying the onus to make his submissions last, against which principle this order offended.  He, when asked, had no authority to support such a proposition, but indicated that it was his gut feeling that it was a fundamental part of natural justice that that should be the case.

9.	It is certainly the case in general terms over the years, in courts and tribunals, that when oral submissions are made, the person who carries the onus has the last word, although in practice evolving over many years if something is said by the party with the last word in oral submissions, consent is almost always given by a judge or a tribunal, attempting to arrive at a correct decision, to the other party to make some comment or other or correction of an error, even if, as a matter of formality, the tribunal or judge will then turn to the other party, and see whether he or she wants to say anything further and final, and such advocate, if advocate it be, very often does not do so.

10.	But this situation is overtaken, in our judgment, by the more modern system of written submissions delivered after a hearing, and read in the privacy of their rooms by the tribunals or judges, with no one sitting over them to stipulate in which order anything is to be read; and that means that case management develops flexibility.  It is certainly the case that an order would normally be made which in general allows for closing submissions to be made by the one party, followed by the other, the last being by the party bearing the onus; but it is not at all unusual, in our experience, for there to be an opportunity for a mop-up exercise with final responses or corrections, and it is usually sensible for that to be ordered to be done by way of exchange, because otherwise this chain of communication can go on forever.

11.	But there is always then the opportunity for the kind of application that was made here.  Of course the point that was made about evidence was not a good point, because there are no notes of evidence available or supplied in the Employment Tribunal: it is expected that both parties will be able to refer to evidence in their closing submissions from their own notes, and there is not any kind of provision for exchange of notes of evidence.  A point can be properly made - and it turns out this was not appropriately made in this case, but Mr Bruce very properly corrected the position - about being taken by surprise by an authority, or by some point not previously made, or simply a difficulty of timing may in an appropriate case lead to an extension.  But this is the kind of matter which we all now regard as part of case management intended to achieve the Overriding Objective, without placing too great an imposition on the parties, and seeking to avoid prejudice in an individual case.  That is what, in our judgment, occurred here, and there is no point of principle involved at all in the appeal by Mr Bruce.

12.	We turn to his second appeal, and this relates to the events of 26 June and thereafter, leaving aside the question with which we have just dealt.  On 26 June it appears, at the close of the Applicant’s case, the onus of proof of course lying upon the Applicant in an issue of constructive dismissal, that the Chairman turned to the Respondent, and asked whether Ms Murrey, the solicitor for the Respondent proposed to make any applications, or any submissions (it is not entirely clear what precise wording was used).

13.	It is quite apparent, although this was not expressed at the time, but there was only one meaning or context for such a question – and it has now been made clear as a result of the affidavits, which have been supplied by the parties, and the comments which have been given by the Chairman and members pursuant to the Employment Appeal Tribunal Practice Direction and Orders – that the Tribunal was of the view that the case for the Applicant, she having now by now closed her case, and bearing the onus, was not a strong one; and the Tribunal was implicitly enquiring, in those circumstances, whether a submission of no case was to be made.  Ms Murrey indicated in reply that she did not propose to make any submission, and she called her evidence, as she was entitled to do, and that evidence continued until 4.45 pm on the day, as we have previously indicated. 

14.	We refer to the following paragraphs in the Tribunal’s comments.  Mrs Saunders, one of the lay members, in her comments says:

7.	“I do recall the Chairman asking the Respondent’s solicitor if she wished to make an application.  This is not an entirely unusual occurrence.”

Mr Heckford, the other lay member, said this:

7.	“…I am sure either between the completion of the Applicant’s evidence and the start of the Respondent’s evidence there was a short adjournment or it may have been during the period that the Applicant was allowed to compose herself, there was a discussion between Tribunal members that from what we had heard so far Mrs Hudson’s case did not appear very strong.  It was expected by the Tribunal that the Respondent’s representative would make an application before starting the Respondent’s evidence.  It is not denied that the Chairman asked the Respondent’s representative if she wished to make a submission … but this was in the full knowledge of all the members of the Tribunal.  From previous experience, we expected a submission at that stage of the proceedings.  However, no submission was forthcoming and apart from thinking that the Applicant’s case was not very strong, no decision had been made on the Applicant’s case at this stage and ... no decision was reached until 28th August.
Had the Respondent’s representative made a submission this would have had to be fully considered by the Tribunal.
On a personal note, I have never been a member of a Tribunal that has dismissed a constructive dismissal application at this stage i.e. as a result of a Respondent’s submission to dismiss an application after the Applicant had completed his/her evidence.  I have, however, been on Tribunals where Respondent’s representatives have made submissions in similar circumstances.  In Mrs Hudson’s case I do not think that I would have agreed to dismiss her application at this stage”.

And then so far as the Chairman is concerned he says this:

13.	“It is correct that when invited by the applicant’s representative to explain what application I had been referring to when asking Mrs Hudson whether there were any applications she wished to make, I declined to identify what application I was inviting.  In a constructive dismissal case the burden proof is obviously on the applicant to show a breach or breaches of contract and further that the applicant relied on the breach or breaches in resigning thereby justifying the claim of constructive dismissal.  The obvious application that might have been made by the respondent’s representative at the conclusion of the applicant’s case was an application of no case to answer.  I did not consider that the applicant had made out a strong case at the conclusion of her evidence.  However, I had not pre-judged it.  The respondent’s representative did not make any application of no case to answer and accordingly the Tribunal went on to hear the evidence from the Respondent and the applicant’s representative was given every opportunity to put relevant questions to the respondent’s two witnesses.”

15.	The Tribunal is entitled, albeit in an exceptional case, to dismiss the case at half time if an application to that effect is made by a Respondent.  That is clear from the decision of the Employment Appeal Tribunal to which we have been referred by Mr Bruce of Hackney London Borough Council v Usher [1997] ICR 705 at 713 where Judge Clark says that:

“…it is open to a Tribunal to stop a case at half-time where the party going first and upon whom the onus lies has clearly failed to establish what he set out to establish”.

It has been emphasised in recent Court of Appeal authorities that that is a rare power, and certainly it has been made clear that it should be only very exceptional indeed in cases of discrimination, and certainly would not be appropriate where the onus does not lie on the party that has gone first.  But it can be done.

16.	Here in fact that there was no such application.  All that occurred was the Chairman, it seems with the concurrence of the Tribunal, was asking whether one was to be made.  No expression of opinion was in fact made, although Mr Bruce persuasively puts forward a case that it least it could be inferred that the Tribunal had a view that there was a weak case, and of course we have now had it confirmed in the comments from the Chairman and Tribunal members that that was indeed their view.  But it was a view that was formed after hearing the evidence, and it is plain from the comments of the Tribunal that it was a provisional view, and that, although they might have been inviting an application, there is no certainty at all that such application, if made, would have been allowed, particularly given the exceptional nature of allowing it, and the fact that Mr Bruce would have had a good deal to say in opposition to it.

17.	The cases that Mr Bruce has put before us, which emphasise the importance of the absence of apparent of bias by a Tribunal, have been very helpful in indicating a line that can carefully be drawn, in order to see which side of the line this case falls.  On the one hand he has produced for us, helpfully, a case called R. v Highgate Justices, Ex-parte Riley [1996] RTR 150, a decision of the Queens Bench Divisional Court, given by Simon Brown LJ, in which the facts were that, in a criminal prosecution being heard before a Magistrates Court, a police officer was giving evidence at the outset of the prosecution case, upon whose evidence the case depended, and he was in the process of being cross-examined when the Chairman of the Justices intervened saying that it was “not the practice to call police officers liars in this court.”

18.	That indicates that at a very early stage of the case, and before any material evidence had been given for the prosecution, never mind any evidence for the defence, the Magistrates, at any rate the Chairman of the Magistrates, were indicating a closed mind in relation to the innocence of the defendant, whose case, it seems, would have depended upon establishing that which the Magistrates were minded to say never happened, namely that a police officer was a liar.  One can entirely see that that is, in the true sense, prejudice, that is (drawn from the Latin) pre-judging.

19.	The very helpful authority of the Court of Appeal, to which again Mr Bruce drew our attention, of London Borough of Southwark v Jiminez, now reported at [2003] IRLR 477, once again gives a clear steer through the undergrowth.  In Peter Gibson LJ’s judgment, he reviews cases which fall one side of the line and the other.  He of course refers to Porter v Magill [2002] 2 AC 357, particularly per Lord Hope at 494H, in relation to the test for apparent bias of the fair-minded and informed observer.  But the fair-minded and informed observer must of course be informed about the practices of courts and tribunals and - particularly in these days of case management, and of the achievement of the Overriding Objective, but I suspect over many, many years in courts and tribunals, certainly in the 30-odd years in which I personally have had such experience – that judges and tribunals at any rate in civil cases are not expected to keep silent.  

20.	Peter Gibson LJ refers, for example, at paragraph 27, to the remarks of Sir Thomas Bingham MR (as he then was) in Arab Monetary Fund v Hashim (1993) 6 Admin LR 348 at 356 where he says:

“…a Judge does not act amiss if, in relation to some feature of a party’s case which strikes him as inherently improbable, he indicates the need for unusually compelling evidence to persuade him of the fact.  An expression of scepticism is not suggestive of bias unless the Judge conveys an unwillingness to be persuaded of a factual proposition whatever the evidence may be.”

In paragraph 28 of his judgment Peter Gibson LJ refers to Pill LJ’s judgment in Harada Ltd v Turner [2002] EWCA Civ. 599, which indicates the common and acceptable practice whereby judges may make remarks at the beginning or in the course of hearing which indicate the difficulty a party faces.

21.	Further examples are given by Peter Gibson LJ in Southwark v Jiminez; for example, at paragraph 32 of his judgment, the instance when Jacob J (as he then was), in Hart v Relentless Records [2002] EWHC 1984, called counsel into the judges’ corridor to express his views on the claimant’s claim, with a view to encouraging settlement, and when invited to recuse himself on the ground of apparent bias did not do so.

22.	On the other side of the line lies the case of Peter Simper & Co. Ltd v Cooke [1986] IRLR 19, referred to by Peter Gibson LJ at paragraph 30, a case to which we will make reference for different reasons in a moment, in which it appears that remarks hostile to the employer, and suggestive of a concluded view, were made by the Chairman in the course of the cross-examination of the employee on the opening day, before the employer’s case had been opened.  Indeed in that case the Chairman himself appears to have accepted that he had gone too far, and recused himself, in circumstances to which we will refer.

23.	Mr Bruce has referred also to the decision of the Employment Appeal Tribunal in Lewis v Royal Borough of Kingston (unreported, EAT/0221/00), a decision given by Judge Wakefield, in which the Tribunal used such language that in fact it is said (by Judge Wakefield at paragraph 13) to have demonstrated a concluded view hostile to the appellant, which actually caused the appellant to abandon his appeal.

24.	We are entirely satisfied, with the benefit of that guidance put before us very properly by Mr Bruce, that this is not a case in which a concluded, pre-judged view was put forward by the Tribunal.  If the Tribunal had expressed sceptical views (which it did not) then it would seem, on the basis of those authorities, that in any event that would not have been sufficient.  The Tribunal in fact did not express sceptical views, and did not point out difficulties, but simply asked whether there was to be an application, which might or might not have succeeded.  In those circumstances we are entirely satisfied that there is no arguable case at all of apparent bias.

25.	Mr Bruce has accepted that his subsidiary argument, by reference to the alleged intervention by the Tribunal in his questioning, does not amount to a separate point; he indeed said that he concluded that there was nothing particularly unusual about what occurred, and that it would not have merited an appeal but for what he submitted to be its superimposition on what had just occurred in relation to the question asked by the Tribunal at the close of the Applicant’s case.

26.	We consider that point together with the main point, as Mr Bruce invited us to do, as well as considering it separately.  It does not affect our view on the main point and it certainly does not constitute of itself any grounds which lead us to conclude that there was apparent bias in this case.
27.	That takes us to the third point that Mr Bruce makes, namely as to what occurred when he challenged what had taken place on 26 June.  Mr Bruce wrote a letter to the Tribunal, addressed to all three of its members, inviting them to recuse themselves in the light of that asking of the question of the close of the Applicant’s case, which we have described.  In a letter in response dated 17 July, which forms the basis of the second order which Mr Bruce appealed, the response came back that the application or request had been referred to the Tribunal Chairman, who had considered the application requesting that the Tribunal members recuse themselves and refused it.  The letter continued:

“It is in the interests of justice and in accordance with the overriding objective that there be finality in concluding what is effectively a part heard case quickly and without any unnecessary further delay and expense.
If, the Tribunal having given their decision, either party wishes to apply for a review of that decision [or] to appeal it, they will have an opportunity to do so.”

28.	The Tribunal returned to that matter in the reserved decision and explained it in this way:

26.	“By letter dated 30 June the Applicant’s representative made application to the Tribunal to recuse itself and direct that a new Tribunal hear the Applicant’s claim.  The basis of the application was in reliance on the Chairman having asked the Respondents representative whether there was any application she wished to make at the conclusion of the Applicant’s evidence.  The Applicant’s representative argued that the only application which the Tribunal had in mind was one of “no case to answer”.  The Applicant’s representative asked the Chairman at the conclusion of all the oral evidence on 27 June what application the Tribunal had in mind when speaking to the Respondent’s representatives.  The Tribunal Chairman simply confirmed that the Respondent’s representative had been asked if there were any applications she wished to raise which was a matter for the Respondents.  In the event no applications were raised.  At no time did the Tribunal express any view as to the Tribunal’s assessment of the strength or weakness of the Applicant’s case.  The hearing adjourned all evidence having been heard and a reserved decision meeting date having been fixed of 28 August 2003.  The Tribunal Chairman considered the application for the Tribunal to recuse itself and refused it.  That was done by letter dated 17 July, which stated that the reason for refusal was that it was in the interest of justice and in accordance with the overriding objective that there be finality in concluding what was a part heard case quickly and without any unnecessary further delay and expense.  Further the letter pointed out that if, the Tribunal having given their decision, either party wished to apply for a review of that decision or to appeal it, they would have an opportunity to do so.
27.	Had the Tribunal Chairman required the full Tribunal to meet to consider the application to recuse themselves then that would have involved further expense and time which in all the circumstances of the case and applying proportionality is not in accordance with the overriding objective.
…

29.	If the Tribunal Chairman was incorrect in law in himself refusing the application for the Tribunal to recuse itself in the absence of the other two Tribunal members the application to recuse was in any event fully reviewed by the full Tribunal at the reserved decision meeting on 28 August 2002.  For the same reasons as those given by the Tribunal Chairman in his letter to the Applicant’s representative of 17 July 2003 the full Tribunal endorsed the original decision to reject the application to recuse.  For the record the Tribunal confirm that no decision whatsoever was taken in this case until 28 August 2003 at which date all the relevant evidence, relevant documents and submissions were fully considered and discussed and the reserved decision set out above dictated by the Chairman in draft form in the presence of and in discussion with the other Tribunal members.”

29.	The Chairman does not seek to say that the Tribunal members ratified his earlier decision; indeed, as Mr Bruce has submitted in the course of argument to us, there was little else perhaps that they could have done, the decision having been taken.  But what this is expressed as is as an opportunity to review the decision, and it is certainly clear from the comments by the Chairman and the members that they both agreed with the decision, and saw no need to change it.  So from that point of view we entirely accept both that the original decision was taken alone by the Chairman and not in some way retrospectively joined by the members; but on the other hand that there was an independent decision not to review the decision to which all three were party.  

30.	However, that still means that the original decision was taken alone.  Mr Bruce submits that that should not have occurred.  He is supported in that proposition by an authority to which we drew his attention today of Peter Simper & Co. Ltd v Cooke [1984] ICR 6, a later decision in which case was referred to by Peter Gibson LJ in Jiminez, as we have already described.  That was a decision of the Employment Appeal Tribunal, per Browne-Wilkinson P.  The circumstances were, as we have said, that it seems that the Tribunal did intervene, prejudicially as was asserted by the employer’s solicitors, on the basis of allegedly displaying a closed mind; and that at the end of the first day of the hearing the matter went adjourned part-heard, with a date fixed for the further hearing, and an application was then made by the employer’s solicitors to the Employment Tribunal for a rehearing before a differently-constituted Employment Tribunal on the ground of bias; and the Chairman, sitting alone without members, made the opposite decision to that which occurred here and, though without deciding the issue of bias, granted the employer’s request, and directed that the case be reheard.  It appears, somewhat unusually, that he did so without having consulted the employee’s solicitors, and in that case also not only not having consulted with the lay members but in such circumstances that in fact the lay members subsequently disagreed with his decision, and objected to it.

31.	There was a review of the decision, and the Chairman’s decision to recuse was revoked; so that it may be that, reverting to the earlier point, even in relation to the prejudicial comments made in that case, they would not necessarily have fallen on the wrong side of the line, because the Employment Appeal Tribunal allowed the appeal against the original order, while quashing the decision made on the review, which was not a proper review, and ordered the matter to continue to be heard by the original Tribunal. 

32.	But for the purpose of the point that we are now addressing, Browne-Wilkinson P was clear that the decision made by the Chairman sitting alone should not have been so made – not on the basis that there was no jurisdiction (and the Appeal Tribunal no doubt had in mind a similar order to that which we now have in Rule 15 (8) of the 2001 Rules) but on the basis that, in the exercise of the Chairman’s discretion, this is not a decision which he should have made alone.  Browne-Wilkinson P summarises the position very shortly, at page 10G of the judgment, as follows:

“The next question is whether in the exercise of his jurisdiction the chairman erred in law…We have no doubt that he did.  Although the chairman’s jurisdiction is very wide, it has to be exercised on a judicial basis.  An industrial tribunal, at the hearing, essentially consists of three people, each with an equal voice.  The chairman is in no sense in a dominant position.  Accordingly, if an application is made to abort a hearing before a tribunal of three, in our judgment the decision whether or not to put an end to the existing hearing and to direct a rehearing is one which must essentially be taken by every member of the tribunal and not by one alone.”

33.	We would respectfully agree.  The basis upon which the Chairman seems to have taken the view that he could and should make the decision itself, although of course leaving it open to review, was one of proportionality and cost saving.  Really the nub of the matter is in paragraph 27 of his decision, which we have already recited but we repeat:

“Had the Tribunal Chairman required the full Tribunal to meet to consider the application to recuse themselves then that would have involved further expense and time which in all the circumstances of the case and applying proportionality is not in accordance with the overriding objective.”

34.	It seems to us, in these days of modern communication, perhaps best exemplified by the very nature of this hearing, taking place by video conference – but nothing like such hi-tech facilities were needed for the purposes which we have in mind – that the right course would have been for the Chairman to consult the members telephonically.  It appears to us there would have been no difficulty, no expense and no waste of time or costs in his causing there to be contact made with the lay members, either by telephone, fax or email, so that there could have been input from them in the making of a decision.  That is what certainly would occur in a similar situation at the Employment Appeal Tribunal.  Of course, if any of the lay members had differed from the Chairman, then either there could have been a meeting between them, or there could have been a hearing; but if they were all agreed then it could have, in our judgment, been satisfactorily dealt with by the Chairman then reporting, as he would easily have been able to do within the same letter which he in fact wrote recording his own decision, the decision made by the three of them.  That is the proper course that should have been taken in this case.

35.	The decision was not one which, as we have indicated by reference to Peter Simper, was one which the Chairman had no jurisdiction to make, but it is one which, in the exercise of his discretion, ought to have been made by the three of them.  In fact, as we have indicated, when the three did get together they did not review that decision, but we conclude that the original decision should not have been made by the Chairman alone.  What course should then be taken?  We are entirely clear, and indeed it was accepted by Mr Bruce in the course of argument, that if the decision were the same, and would have been the same – and we are so satisfied – had it been made by the three together as by the Chairman, then there is no call or room for intervention by this Tribunal, other than making the position clear for the future.  This is not only because we have seen the views of the Tribunal members as recorded, but more importantly because we ourselves have formed the view that there was no ground for this Tribunal to recuse itself, because there was no apparent bias, for the reasons we have already given in this judgment.

36.	We do not therefore propose to interfere with the decision by the Chairman, or to quash it, because we agree with the order he made, and that it was in fact the right and correct order.  We do, however, take the opportunity of this case to say that in future such a decision ought, in our judgment, to be taken by the full Tribunal, albeit not necessarily at an oral hearing, as we have indicated.

37.	In those circumstances this appeal is dismissed.