Appeal No. UKEAT/0292/11/CEA

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX

	At the Tribunal
	On 24 November 2011

Before
HIS HONOUR JUDGE McMULLEN QC
MR M CLANCY
MR T STANWORTH

DR H HORSFALL	APPELLANT

CALDERDALE AND HUDDERSFIELD NHS FOUNDATION TRUST	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - APPELLANT ONLY

APPEARANCES

For the Appellant	MR A ELESINNLA
(of Counsel)
Instructed by:
Strand Solicitors
3rd Floor
218 Strand
London
WC2R 1AT

For the Respondent	Written Submissions	

SUMMARY
PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
While the Employment Judge made an unguarded comment immediately before the Claimant’s cross-examination, it did not in the context of the proceedings as a whole give rise to apparent bias.  35 grounds of appeal on perversity, and reasons challenges, were dismissed.

HIS HONOUR JUDGE McMULLEN QC

1.	This Notice of Appeal is brought by the Claimant in proceedings against a Judgment of an Employment Tribunal chaired by Employment Judge Hepworth, with Mr Dowse and Mr Lyons, sitting at Leeds over 16 days, including a reading day at the outset, registered with Reasons some date thereafter.  The Judgment extends for 43 pages. On the sift Bean J said this:

“This case is a classic of its kind; a 13 day Employment Tribunal Hearing of a discrimination claim in which the Applicant seeks to complain of incidents going back up to seven years, accuses everybody in the case of racism, bullying and lying, loses in the Employment Tribunal and in the Grounds of Appeal, challenges just about every factual conclusion on the grounds of perversity.  I am ordering a Preliminary Hearing, rather than giving a Rule 3 direction, only because in my view cases of this kind should be heard by an EAT of three members, rather than a judge alone.”

2.	To extend Bean J’s language, what makes this “a classic deluxe case of its kind” is the allegation of bias and apparent bias against the judge.  As to that, Bean J caused an affidavit to be adduced on behalf of the Claimant and answers to be given by the judge and the members.  That has been done, together with some contribution from the Respondent’s team.  

3.	The Notice of Appeal takes 35 points.  The frequent visitors to our Embankment shore appear in the arguments of Mr Elesinnla, counsel for the Claimant.  They are perversity and lack of reasons, so frequently hand in hand in appeals before us, and so frequently dismissed.

4.	As Bean J accurately noted, much was disputed in this case.  The stakes were high.  Allegations of lying were made.  The Tribunal dismissed all of the Claimant’s claims under the various employment protection and discrimination canons, and his claim for unfair dismissal.  It did so in comprehensive terms.  It analysed each of the issues which had been set out in its directions at the beginning, of which there were ten, and it went through each of the allegations under the Race Relations act and the public interest disclosure (PIDA) provisions.  It found that the Claimant was dismissed for gross misconduct and it had nothing to do either with whistleblowing or race discrimination.  We say at once that these reasons are Greenwood compliant: see Greenwood v NWF Retail Ltd UKEAT/0409/09.

5.	In this one hour hearing, set for us by order of Bean J, there is no separate content in the skeleton argument.  We have the advantage, as directed by Bean J, of concise written submissions made by the advocate for the Respondent, Mr Robinson, who appeared at the Employment Tribunal.  We have read, of course, the long Notice of Appeal, the Judgment and the very substantial materials which are enclosed in over 350 pages in our bundle. We have also read the evidence relating to the apparent bias allegations.

6.	In our judgement, the allegations of perversity fail to reach the standard of an overwhelming case required for success on such an allegation by Yeboah v Crofton [2002] IRLR 634 in the Judgment of Mummery LJ.  The difficulty facing the Claimant in his unfair dismissal claims are found in the authorities which Mr Elesinnla puts before us: Fuller v London Borough of Brent [2011] IRLR 414, Bowater v Northwest London Hospitals NHS Trust [2011] IRLR 331, to which we would add Salford Royal NHS Foundation Trust v Roldan [2010] IRLR 721, in the Judgment of Elias LJ, Gayle v Sandwell & West Birmingham Hospitals NHS Trust [2011] EWCA Civ 924 in the nine point guidance given Mummery LJ and in London Ambulance Service NHS Trust v Small [2009] IRLR 563, again in the Judgment of Mummery LJ.

7.	What do all these recent powerful statements by the Court of Appeal teach us about unfair dismissal?  The simple but elusive point is that when a Tribunal has directed itself correctly on the law, it will be most unusual for an appellate court to be entitled to interfere.  Let us start with the first proposition.  The direction on the law in this case extends for some six pages, beginning at paragraph 7 of the Judgment.  There is very extensive listing of the authorities - about 30.

8.	Throughout the conclusions of the Tribunal, there are references again to directions on law and to the authorities, which are cited by way of application of the directions which it gave itself earlier.  It is sufficient to say that there has been no challenge to the directions on law nor to the application of those directions in this case.  Given that, or even being generous and indicating that it would be logical to say that, notwithstanding the correct direction the Tribunal misapplied the law, we find it difficult to see how this Judgment can be faulted on questions of law.

9.	The Claimant profoundly disagreed with his treatment by the Respondent and disagrees in measured terms through his counsel with the Judgment of the Tribunal; but this is essentially the determination of factual issues.  The issue on appeal now extends over 35 different grounds.  In Korashi v Abertawe Bro Morgannwg University Local Health Board [2011] UKEAT 0424/09, we pointed out how difficult was the task for the EAT when multiple issues are raised on appeal.  In that case there were 67, arising out of the dismissal of claims of unfair dismissal and race discrimination and whistleblowing by a medical practitioner.

10.	The supreme fact finding body is the Employment Tribunal.  It has made findings of fact here.  There was material before it.  Sustained criticism is made by Mr Elesinnla of the introduction by the Tribunal to us of the parties and the way in which it would treat their evidence.  Mr Elesinnla is right in that a blanket approval, preferring one side rather than the other, is an incorrect approach these days for a Tribunal to take: see Anya v University of Oxford & Another [2001] EWCA Civ 405 in the Judgment of Sedley LJ.

11.	But in this case, the Employment Tribunal has given its conclusions, having heard all the evidence.  It has given its account of who it believes and who not. It has given, both in the introductory paragraphs at paragraph 5, and easily found in its Judgment, an explanation of why it did not accept the Claimant’s accounts and accepted, on the other hand, those of the Respondent’s, for the most part. That therefore acquits it of failing in its duty to make findings and to demonstrate why it did not accept various accounts. In our judgement, the findings by the Tribunal that none of the acts complained of by the Tribunal constituted unlawful discrimination, and that his dismissal was not unfair, were firmly grounded in the findings of fact by this Employment Tribunal, having correctly directed itself on the law.  

Apparent bias
12.	We turn, then, to the allegations of apparent bias.  The Claimant has produced an affidavit himself, indicating some 30 matters which he contends demonstrated apparent bias by the judge.  These are paragraphs 5 to 35 of his affidavit, sworn for these purposes.  The first allegation says:

“On commencing giving my evidence on 12 January 2011, I was immediately interrupted by the Tribunal Judge, Mr Hepworth, who seemed to be suggesting to me…. that I had exaggerated matters in respect of my having reported an actual assault by the Respondents Dr Rabi Paes to the police on 24 April 2008.”

13.	There is no direct answer by the judge or by the two lay members to that allegation.  The affidavit goes on to indicate a number of times when the judge interrupted the Claimant and attempted to control the proceedings.  As to that summary, the judge responds with an extract from the Judgment (see below) about the procedure. The lay member, Mr Lyons, dedicates a number of pages in response.

14.	What we consider to be important about this is that Mr Lyons has full confidence in the judge.  He acknowledges the challenge made by Mr Elesinnla at the Tribunal to the way in which the judge was dealing with the Claimant’s answers.  He also says that the matter was fully discussed between the three of them and “we were happy”.  So, the conduct of the proceedings was in the hands of the judge and, as expressly attested to by Mr Lyons, his conduct was approved by the lay members.  Yet there is no criticism of them.  They would not stand idly by while unfair treatment was meted out to the Claimant.

15.	We are of course aware of the rising number of allegations of bias.  It is in Rimer J’s (as he then was) language encapsulated in the simple syllogism in London Borough of Hackney & Ors v Sagnia UKEAT 06/00/03.  “I have a good case.  I lost.  The Tribunal must be biased.”  And when Rimer LJ returned to this matter in Bascetta & Anor v Abbey National Plc [2009] EWCA Civ 840, he again noted the increasing number of challenges to the Employment Tribunal on the grounds of bias by losing parties and how infrequently they succeed.

16.	The incident complained of seemed to us to fall into two parts.  The first relates to the paragraph we have read in Dr Horsfall’s affidavit about exaggeration.  The outset of the case is fully documented in the reasons, for the Tribunal was alert to the criticisms of apparent bias being made contemporaneously by counsel on behalf of the Claimant. It says this:

“3.	An incident occurred on the first morning of hearing evidence when after an adjournment the Claimant’s representative complained about the Judge asking the Claimant questions during his evidence and cross-examination by Mr Robinson for the Respondent.  Mr Elesinnla for the Claimant alleged that the Judge had indicated that he did not understand the Claimant and that this was not explicable because he, Mr Elesinnla, and the Claimant’s mother and brother who were in attendance at the Hearing understood him because he spoke perfect English.  The Judge was most concerned by the inference from this that he was not understanding the Claimant because he is Nigerian.  It was clear to the Judge that the Claimant’s English was perfect.  The Judge’s queries were merely to clarify the points which the Claimant was trying to make rather than understanding his English.  Mr Robinson for the Respondent said that he believed that the Tribunal should stand down as there was on the face of it doubt in the mind of the Claimant about the neutrality of the Tribunal and that this might affect, negatively, the Respondent’s position at the Hearing.  The Judge released the Claimant from his oath in order to give instructions to his representative and following this no application for recusal was made by the Claimant.  The Respondent’s representative stated eventually that the Respondent themselves had changed their mind and did not request a recusal.  The Tribunal considered authorities such as Locabail (UK) Limited v Bayfield Properties Limited [2000] IRLR 96 and decided that in the circumstances it was not appropriate for the Tribunal to be recused.  The Judge also explained for the Claimant’s benefit that the Tribunal has a duty within Rule 14(2) and (3) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 Schedule 1 to make such enquiries of persons appearing before it in such manner as it considers most appropriate for the clarification of issues and the just handling of proceedings.  He also stated that the Claimant’s English was perfect and that the difficulty he had was simply in understanding the point or points that were being made.  If he did not understand these then this was as much to the Claimant’s disadvantage as the Respondent and the Tribunal itself.  The Tribunal Hearing then continued.”

17.	The sequence of events as explained to us by Mr Elesinnla is this: the seeming suggestion, that is the highest it is put by the Claimant, was made at the start of the proceedings.  It will be borne in mind that a reading day had occurred.  The evidence had been exchanged.  It had been read by the Tribunal.  The Claimant was not to give evidence-in-chief, but was tendered for cross-examination.   Before questions were asked in cross-examination, according to the Claimant, this comment was made and that is not gainsaid by the members or by Ms Hall, who gave evidence for the Respondent in an affidavit to us.

18.	However, things seem to have moved on because then the Claimant was cross-examined and, in the course of cross-examination, questions were directed by the judge. That is the context of paragraph 3.  Mr Elesinnla submitted that there was no question of waiver of the Claimant’s rights.  We disagree.  As to the first question, matters moved on.  That discrete issue put as the first ground of bias in the Notice of Appeal, and the first substantive matter described by the Claimant, was dealt with.  It had passed by the time of further criticism of the judge.  There appears to have been no criticism made of the judge of that intervention.

19.	There was an adjournment.  Instructions were taken.  Mr Elesinnla and Mr Robinson indicated their respective positions on recusal.  As we see it, this is in relation to what the judge had done during the course of the cross-examination and not, therefore, at the outset. Mr Elesinnla, with his client’s full approval, decided to carry on with the case.  No application was pursued.  In our judgment the matter has been waived.

20.	We have sympathy with Mr Elesinnla in that, having raised an issue of apparent bias in front of the Tribunal, he then had to carry on, but there was a an informed decision to carry on with this case.  Things can get worse for a person who has waived rights at that stage.  But in our judgment, matters up to that stage were waived and the separate, self-contained matter of the question about exaggeration was, itself, waived and not returned to.

21.	Nevertheless, if we are wrong about that, Mr Elesinnla has a point that it would be wrong to go on appeal in the middle of the proceedings.  Dr Horsfall may well have won the case and it would have been unnecessary.  As Lord Hutton has made clear, appeals should not be issued until the end of the proceedings for precisely that reason.

22.	However, another reason is that the reviewing court must look at the whole of the proceedings and to see whether the incident complained of does give the appearance of bias, meeting the test in Porter v Magill [2002] AC 357, 494 at paras 102-3, in the speech of Lord Hope.  We consider that the criticisms made of the judge would not cause the informed observer, with knowledge of these proceedings, to form the view that he or the three members of the Tribunal if it comes to that, were going to disfavour the Claimant.

23.	We reject the criticisms made in the affidavit for the reasons given by the members of that Tribunal.  These are matters of case management.  The judge made it clear that the difficulty in understanding the Claimant was not because of any defect in his annunciation of English - it is perfect - but because he is rambling.  He did not answer questions properly and the judge, in discharge of his functions of case management, caused the matters to be moved along.  We see no error in those matters.

24.	Therefore, in the context of our rejection of those matters and our upholding of the decision both as to lack of perversity and proper reasons, we focus now on the first intervention - the suggestion of exaggeration - if we are wrong about waiver.  Seen in context, we do not consider this passes the test in Porter v Magill.  It was an unguarded comment to make at the outset.  It is focusing on an important part of the case, but it must be borne in mind in these modern days of preparation, the Tribunal had read all of the evidence and was waiting for cross-examination. The judge need not have made that comment.  Nevertheless, standing back and looking at this matter as a whole, we do not consider this Judgment is vitiated by any apparent bias.  

25.	We entirely agree with Bean J’s summary assessment of the appeal, and now add our detailed consideration of the evidence on bias. We would very much like to thank Mr Elesinnla for his submissions this morning.  The appeal is dismissed.