APPEARANCES
| For the Appellant |
MR R P LODWICK
(the Appellant in Person) |
| For the Respondent |
MR B UDUJE
(of Counsel)
Instructed by:
London Borough of Southwark Legal Services
South House
30-32 Peckham Road
London SE8 8PX |
SUMMARY
Practice and Procedure
The only ground of appeal was apparent bias. The ET Chairman had, nearly 4 years before, made an order for costs against an applicant for whom the Appellant was acting as trade union representative at the hearing, inter alia on grounds of the Appellant's conduct of that hearing. Applying Locabail and considering the full facts, this of itself was insufficient to cause the Chairman to recuse himself and/or to found a case of apparent bias and there was nothing more.
THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)
- This has been the hearing of an appeal against the unanimous decision of the Tribunal at London South, given by Mr Peters, the wing members being Mrs Maskell and Mr Cameron, in a judgment sent to the parties on 16 August 2002, after a hearing lasting five days between 22 and 26 July 2002.
- The history of this matter, so far as the litigation is concerned, which explains why it has now come before this Appeal Tribunal nearly three years later, is that there was an application for a review of the decision, which was dismissed in a judgment handed down on 19 September 2002. Then there was an appeal by the Appellant on a number of grounds, one of which was the bias ground, which has remained alone the subject matter of the appeal now heard before us. The Notice of Appeal came before the Registrar, and it was dealt with under Rule 3(7) of the Employment Appeal Tribunal Rules, as they then stood. The Appellant reapplied under Rule 3(10), in the light of the decision under Rule 3(7) to take no further action upon the appeal (relying upon an amended Notice). The matter came before Judge Clark, on the application, by the Appellant to reconsider the Rule 3(7) decision under Rule3 (10). Judge Clark dismissed the Rule 3(10), application and consequently no further action was to be taken on the appeal. That order was made by Judge Clark on 7 March 2003.
- Mr Lodwick appealed to the Court of Appeal against that decision, and Mummery LJ gave permission to appeal, after a hearing in which Mr Lodwick represented himself, on 30 October 2003. The matter came before the full Court of Appeal on 18 March 2004, by which time Mr Lodwick had the benefit of pro bono Counsel, Miss Suzanne Palmer. At all times, including this hearing before the Court of Appeal, and before us, the London Borough of Southwark has been represented by Mr Benjamin Uduje of Counsel.
- The Court of Appeal dealt with two matters: first, it allowed the appeal against Judge Clark's decision, remitting the appeal for further hearing by the Employment Appeal Tribunal, concluding that it had not been an appropriate case for the operation of a Rule 3(7), as it then stood, namely a rule whereby no further action would be taken by the Employment Appeal Tribunal if it concluded that there was no jurisdiction to hear the appeal. So far as the Costs Order that had been made by the Employment Tribunal upon dismissal of the applications by the Appellant, the Court of Appeal discharged that Costs Order.
- The matter then returned to the Employment Appeal Tribunal, but upon the basis that the Notice of Appeal, as originally constituted, was not to go forward in its entirely, not least because it had been made clear by Miss Palmer to the Court of Appeal that a number of grounds were not pursued. I made an order on 19 November 2004 as follows, that:
"The Appellant lodges and serves upon the Respondent within 14 days of the seal date of this Order a fresh Notice of Appeal (in total substitution for the Notices previously served) setting out in the light of the decision of the Court of Appeal (in particular the statement in paragraph 13 of the judgment of the Court of Appeal that the Appellant's other purported grounds of appeal are not now pursued) precisely what ground or grounds are now pursued, setting out the same on one sheet of paper."
One sheet of paper was duly forthcoming in December 2004, and that slimmed down the appeal simply to two grounds. The first ground is what I might call the 'bias ground', and the second ground related to a case put as being equitable estoppel, but by reference to the facts of the case, to which we will return.
- It is that restated Notice of Appeal which has now come before us. At the outset of the hearing, at which Mr Lodwick has once again represented himself, and done so, if we may say so, with fluency and articulacy, a number of matters needed to be cleared up. The first matter that was cleared up was that Mr Lodwick made it plain that he was not pursuing Ground 2, which we shall call the equitable estoppel/fact ground, as a separate ground. The only purpose in his having brought it forward, as he himself averred, was in order to show that there was, as he submits, some substance in the claims that he made, so as to resist any suggestion that, if he otherwise succeeded on Ground 1, there was no point in remitting the matter for hearing by a fresh tribunal, because he would have no case. Quite apart from the fact that it would appear to us that, if a bias allegation were successful, it would be difficult to conceive of a situation in which there would not be remission to another hearing, in any event it is clear that such would be the result in this case, and therefore it was not necessary for us to be satisfied that there were some grounds to argue the point on a remitted hearing. Suffice it to say, that, as we made clear to Mr Lodwick, and as will become a little clearer in the course of this judgement, had Ground 2 been the only ground on which the Appellant was relying, it would not appear to us that there would have been substance to support such an appeal. This appeal must, as he accepted, stand or fall on the basis of Ground 1 of the issue of apparent bias.
- The second point that was clarified was that Mr Lodwick very fairly made clear that, notwithstanding that in some respects, particularly Paragraphs 5, 10 and 12 of his skeleton argument before us, he had entered into hypothetical speculation in which his own views, from which he cannot obviously easily divorce himself, that there may have been some kind of conspiracy against himself, was articulated, nevertheless that was not the basis upon which he was pursuing his appeal. He is not suggesting, as part of the grounds of his appeal, or indeed as any support for it, the existence of actual bias against him, either by Mr Peters or the lay members or indeed the Regional Chairman or the membership of the London South Employment Tribunals. He made it plain that he rests his case firmly and only upon apparent bias, by reference to the leading case on the topic of Locabail (UK) v Bayfield Properties Limited [2000] IRLR 96, and, of course, the earlier cases which led to that Court of Appeal decision.
- Thirdly, in that context he made plain what his position was in relation to the various affidavits that have been served in this case. Since the decision in Pacey v Midas Retail Securities [2000] IRLR 812, it has become the practice in the Employment Appeal Tribunal for affidavits to be ordered in support of an appeal based upon alleged bias or misconduct by an employment tribunal, followed by comments from the chairman and members of that tribunal or tribunals, if more than one be involved, and affidavits in response from the other party. Such occurred here once the matter came back from the Court of Appeal, by virtue of the Order I made on 22 November 2004, to which I referred. The result of that was there was, on Mr Lodwick's side, simply his own affidavit. He also put in an affidavit, as it was called, by a Mr Da Costa, but that, in fact, on analysis, was not strictly speaking a relevant affidavit, it was a witness statement which he had used below, and did not reflect in any way upon the issue before us, so far as bias is concerned.
- On the Respondent's side there was a substantial number of affidavits. There was an affidavit with exhibits by Mr Gary Morton of Counsel, who had been Counsel in the December 1998 case of Aslam to which we will make reference, and by a Mr Richard Bielby, who had been the Legal Officer employed by the London Borough of Southwark at the time of the Aslam case. In addition, there were two affidavits sworn on behalf of the Respondent relating to the events of the Lodwick Tribunal hearing itself; one sworn, with exhibits, by a Miss Fashola, now the Respondent's Principal Lawyer for General Litigation, and an affidavit by a Mr Hugh Bucknill, who was a witness for the Respondent at the Tribunal, being a Social Care Consultant. In addition, there were comments provided by Mr Peters, the Chairman whose conduct was under scrutiny at the Lodwick hearing, and by wing members. So far as the wing members are concerned, only one wing member from the Aslam case in 1998 was still active; that was a Mrs West, who gave a helpful two-page letter of comment; and one from the Lodwick hearing in 2002, a Mrs Maskell, who again gave a two-page letter of comment. The other wing member from the Lodwick hearing, Mr Cameron, has now retired from practice as an Employment Tribunal member and, as we understand it, has now retired to Scotland, and, it seems, did not respond to the Employment Tribunal's request for him to answer the Employment Appeal Tribunal's request for his comments.
- Although, of course, pursuant to the Pacey case, no cross-examination of the chairman or wing members is permitted, cross-examination of deponents on either side is provided for, and on the Respondent's side all the deponents attended today in case cross-examination should be necessary. No blame at all can be placed at the door of the Appellant for that having occurred, because a direction was given by the Registrar on 18 February 2005 that it was necessary for the parties to have all deponents present for cross-examination; but that was clearly not an appropriate direction, and what ought in future to happen is that, in such a case, the Employment Appeal Tribunal should direct that parties on both sides notify the Employment Appeal Tribunal in writing whether deponents from the opposing side who have sworn affidavits are required to attend for cross-examination, and, in the absence of such notification, such deponents will not attend and their evidence will be taken as read in their absence. That was not an Order that was made in this case, as I have indicated: it is unfortunate, and it clearly incurred expense and inconvenience for the deponents, who would not otherwise have attended, but we were anxious to ensure that the matter was cleared up right at the outset. Immediately and helpfully, the Appellant made it clear that he had no need or wish to cross-examine any of the deponents in response. In response, the Respondent's side made it clear that they had no intention to cross-examine him on his affidavit. The result, as Mr Lodwick understood, was that the evidence given by the various deponents was not challenged, although it could have been, not least because they were all here for that purpose, and the evidence stands as unchallenged before us, and very helpfully so.
- Having cleared away those aspects we were left then with the one ground of apparent bias, and we should turn first to the substantive decision of the Employment Tribunal, which dismissed unanimously the Appellant's claims for unfair dismissal and wrongful dismissal/ breach of contract. The unfair dismissal claim itself was put further on the basis that it was on trade union grounds, the Appellant being a trade union representative who has indeed regularly represented trade union members. In that context, he had not only done so internally, but it appears that he had done so at employment tribunals, and, judging by his dexterity before us today, he plainly had been able to function efficiently and regularly as an advocate. He has told us that, apart from the Aslam case, he had appeared in employment tribunals, prior to his own hearing in July 2002, on at least three or four occasions as an advocate and on one occasion as a witness.
The Tribunal Hearing
- So far as the substance of the Employment Tribunal decision is concerned, the circumstances were somewhat unusual so far as the termination of the Appellant's contract is concerned, because, put in very general terms, he had, in fact, wished to cease to work for the Respondent as a Residential Case Officer, and applied for a full-time post in October 2000 as an Advice Worker at the Lambeth Citizens Advice Bureau. His aim was effectively to stop working for the Respondent, to work full-time for the Lambeth Citizens Advice Bureau, but in some way to preserve his employment with the Respondent Council. That was a matter which the Council was not prepared to accept and, in due course, it dismissed him.
- His real complaint, as seemingly understood by the Tribunal as underlying the whole claim against the Council, was that he felt annoyed, to put it at its lowest, that he had been put through a disciplinary procedure and eventually dismissed in those circumstances. It is clear that, on any basis, he had not wanted to continue to work for the London Borough of Southwark and, indeed, had withdrawn his labour as from the beginning of January 2001, when he did, in fact, start full-time work for the Lambeth Citizens Advice Bureau.
- Against that background, the Tribunal had difficulty in understanding what benefit the Appellant saw that he could achieve so far as financial recovery is concerned, and this is set out in Paragraphs 11 onwards of the Employment Tribunal's Decision:
"11. The Tribunal then identified with the Applicant the breach of contract complaint. At that stage the Applicant alleged that the breach of contract was the failure to allow or the refusal to accept resignation by the Applicant. The Respondent asserted that there was no resignation and therefore could be no breach. The Tribunal recorded the Applicant's complaint as formulated at that time, but when the Applicant gave evidence there was no evidence of any resignation indeed quite the contrary. His evidence was that he endeavoured to stay in the Respondent's employment despite having a full time job elsewhere and had tried a number of means to achieve that end. The one thing the Applicant hadn't done was resign."
12. Accordingly at the end of the Applicant's evidence in chief at an early stage on the second day the Tribunal discussed with the Applicant his breach of contract complaint pointing out that it was based on a false premise namely that he had resigned when all of his evidence was that he hadn't. The Tribunal Chairman, with the agreement of the other members of the Tribunal, suggested to the Applicant that his breach of contract claim might be better formulated by dealing with the issues which he appeared to want to address. The Chairman suggested that the breach of contract complaint could be formulated as a breach of the implied term of trust and confidence in that the Respondent failed to give proper consideration to the Applicant's requests for sabbatical leave/jobshare/reduced hours.
13. After much explanation to the Applicant and assurances from the Tribunal that any concession that he hadn't resigned wouldn't adversely affect his unfair dismissal complaints and after no objection was raised by the Respondent the Tribunal substituted for the previously formulated breach of contract complaint the complaint as identified by the Tribunal Chairman."
- The Tribunal then summarised the three complaints to be determined. The first two being unfair dismissal, both of the basic variety and by reference to s152 of the Trade Union Labour Relations (Consolidation) Act 1992, and thirdly, a breach of contract complaint, being a breach of the implied term of trust and confidence as to the Respondent's failure to give proper consideration to the Applicant's various requests made in late 2000.
- The findings of fact by the Tribunal, after hearing the evidence of the witnesses and reading the documents, are set out in paragraph 19 of the Tribunal Decision. At (iii) the Tribunal recites that at the date of relevant events, the Appellant's relevant contract of employment provided for a basic working hours of 37 hours per week, and he was required to give four weeks notice to terminate his employment. Although there was some change to that provision for 37 hours, it was restored as a result of a letter on 13 January 2000.
- The Tribunal then refers, in paragraph 19(vii) of the judgment, to the application he made in October 2000, for a full-time post as an Advice Worker at the Lambeth Citizens Advice Bureau. He was interviewed and offered the post of advice worker for a limited period of between 12 and 18 months, working five days per week at weekly hours of 37½. The Appellant was asked to accept the offer and give his proposed start date as soon as possible. In subparagraph (viii) the Tribunal records that the Appellant went to see Mr Bucknill, and that he had wanted to apply under what he called the Respondent's 'sabbatical leave scheme' for sabbatical leave for some 12 – 18 months in order to do this job. Mr Bucknill had apparently never heard of such a scheme, but said that, if there was a scheme, and if the Appellant qualified under the scheme, then cover would have to be arranged. He suggested that the Appellant put his request in writing to Mr Bull, the Director of Social Services, which he then did, requesting unpaid sabbatical leave during his contract with the Lambeth Citizens Advice Bureau.
- The Tribunal then records, in subparagraph (x), that on 11 November 2000 the Appellant wrote to the Lambeth Citizens Advice Bureau accepting the offer of employment, stating that he was requesting release for some of 18 months and that he thought it would be helpful if Lambeth could write to Mr Bull. He stated that he expected to be able to start working at the Bureau on 1 December. Further developments are recorded by the Tribunal, and then, in subparagraph (xv), it records that Mr Bucknill wrote, after those discussions, to the Appellant, on 27 November 2000, refusing his request for sabbatical release, indicating, among other things, that there was no policy for such sabbatical release and it would in any event present operational difficulties. The Appellant wrote on 3 December to the Lambeth Citizens Advice Bureau to inform them that he had to delay his start date, saying that it was because of staff shortages in his current workplace and he stated that he would be able to start on 1 January 2001. On 7 December 2000 he wrote to Mr Bucknill requesting a job share. He did not identify in the letter, according to the Tribunal's finding, with whom he intended to share, and he further stated that he would need to reduce his working hours from 2 January 2001 and that those would be 5 hours per week on average equating to four shifts every six weeks. He stated that those would mostly be at weekends. That request was rejected by Mr Bucknill for reasons given on 15 December 2000. He suggested, in his letter of that date, that the Appellant's needs could best be met by his going on to the staff bank, that would allow him to choose when and if he wanted to work, depending upon the availability of shifts, but he was required to work 37 hours per week.
- The next step, on the findings of the Tribunal in subparagraph (xx), was that, by a letter dated 19 December 2000, the Appellant applied for unpaid parental leave and he calculated that he was entitled to 36 days in January and February 2001, and in (xxi) that on 20 December 2000 he wrote to Mr Bucknill stating that he had received the response for the job share request and he would appreciate it if they could discuss the matter informally. In the meanwhile, he was still being rostered for his full 37 hours per week, and the Tribunal records, in subparagraph (xxii), that:
"… on 28 December 2000 there was a conversation between the Applicant and his immediate line manager Ms Crockford as the Applicant was crossing out his shifts on the rota. Ms Crockford made a note of the conversation as the Applicant informed her of his intention not to turn up for duty on Friday 5 January or Sunday 7 January but Ms Crockford said that as far as she was concerned he should be present for his duties as per the rota."
- Against that background, and his requests in those circumstances not having found favour, he nevertheless commenced full-time employment with the Lambeth Bureau on 1 January 2001, and the Tribunal records, in (xxiii), that from that date he did not attend work with the Respondent.
- His request for unpaid parental work was refused on 3 January 2001 on the basis that, having taken advice, Mr Coffey, the Service Manager, concluded that he was not entitled to it, and the Appellant, although now working full-time for the Lambeth Citizens Advice Bureau, now put in a grievance proforma stating that he would be absent from work and that he would take annual leave, such that his unpaid absence would commence from 8 January.
- By letter dated 9 January 2001, Mr Bucknill is recorded, in subparagraph (xxvi), as acknowledging receipt of the Appellant's grievance and stating that he should return to work. A grievance hearing took place on 24 January 2001 before a Mr Karim, when the Appellant was represented by his union representative Mr Wright. Mr Karim considered the refusal of the request to job share and considered that the request had been misleading. The Tribunal records that the Appellant did not inform either Mr Karim or his own representative, Mr Wright, that he had a full-time job elsewhere. The recommendation, dated 25 January 2001, was that, in view of the Appellant's absence from work without authority, it was recommended that the management considered disciplinary action in respect of the unauthorised absence. That disciplinary action then took place. There was a disciplinary hearing before a panel chaired by a Mr Addo, in which there were two other members, a Mrs Palmer, the Residential Services Manager, and Mr Parker, the Housing Personnel Officer. That disciplinary panel concluded that the Appellant should be dismissed, and that decision was appealed by the Appellant to an appeal tribunal consisting of a sub-committee of councillors, when the appeal was not upheld, at a hearing in September 2001.
- That is the background to the conclusion by the Tribunal that there was no unfair dismissal, and it also founds the case, which it considered separately, as we shall indicate, of the reconstituted claim for breach of contract. At paragraphs 21 to 23 of the Tribunal's judgment, the Tribunal recites the submissions of the parties:
"21. Mr Uduje on behalf of the Respondent submitted that there was a total absence of evidence to support the allegations that the Applicant had been [dismissed] for trade [union] activities. In relation to the section 98 unfair dismissal he submitted that the reason for dismissal was the Applicant's continuing absence, which could not be overlooked in the circumstances that he had taken a full time job elsewhere, he had no intention of terminating his contract, his intention was to retain the benefits of local government service and he tried various means to do so. The Applicant was disciplined, he was dismissed for his conduct and that was a fair dismissal.
22. Turning to the breach of contract complaint Mr Uduje submitted that all of the evidence pointed to the requests made by the Applicant having been properly considered.
23. The Applicant made various submissions as to the facts in written submissions. He also submitted that there had been a better way of concluding the matter and that there should have been more dialogue in order to achieve an acceptable conclusion. The Respondent decided to dismiss and that he submitted was an unfair dismissal.
- In paragraph 25 onwards the Tribunal sets out its conclusions. After finding that there was no evidence that his trade union activities had been such that there was a desire to get rid of him, it recorded:
"The Tribunal is satisfied that the reason for dismissal and the sole reason was the Applicant's continuing non-attendance at work having got a job elsewhere."
- In paragraph 29, the Tribunal, as it put it, considered carefully the procedure involved in this case and, at subparagraph (i), it records as follows:
"The Applicant alleged that the procedure was deficient in that there was no investigation prior to proceeding into the disciplinary process. The Tribunal found it hard to envisage what investigation was needed. The fact was that the Applicant was absenting himself from work. However the grievance hearing on 24 January effectively achieved the same purpose as would have been achieved by an investigatory meeting. At that meeting it was ascertained not only that the Applicant was absent but also he had no intention of attending in the future."
- After finding that the dismissal was fair for the further reasons set out in paragraphs 30 to 35, the Tribunal turns finally to what it calls the "reformatted breach of contract claim", and its findings, at paragraph 36, are as follows:
"36. That complaint related to the consideration by the Respondent of his requests made in November and December 2000. The Tribunal noted that the Applicant asked for an informal meeting and also noted that there was no meeting apart from the grievance hearing on 24 January:
i The Tribunal finds that the request for the sabbatical leave was carefully considered. There was no scheme for sabbatical leave as alleged by the Applicant. The Tribunal is satisfied that genuine reasons were given by the Respondent for the refusal in particular that it would be inappropriate to create a precedent in this sort of situation.
ii As to the reduction of hours the Tribunal notes that the Applicant was suggesting a job share but the other person would be doing 32 hours per week which to all intents and purposes was a full time job. It would have been pointless to discuss with the Applicant a reduction in hours when the Applicant was asking to do only 5 hours a week and when one shift is 7½ - 8 hours per shift.
37. The important aspect of this matter is that Mr Bucknill suggested to the Applicant that he go onto the bank. The Applicant did not take up that suggestion. We cannot see in the circumstances, in particular that the Applicant had got a new job, that there was much point in discussion and the Tribunal finds the Respondent gave proper consideration to the Applicant's requests. Accordingly the breach of contract claim fails."
The Bias Claim
- Those were the substantive considerations by the Tribunal, but the ground, as we have indicated, is one based on apparent bias, and that occurs in the following circumstances. In December 1998, as one of the cases in which he was acting as a union representative, the Appellant appeared at the London South Tribunal, as advocate on behalf of an applicant, Mr Aslam, who was bringing a claim against the same Respondent, the London Borough of Southwark, in that case for unlawful race discrimination. The case came for hearing before a Tribunal, consisting of Mr Peters as Chairman and a Mr Pugh, and Mrs West, the lay member who has given comments to this Appeal Tribunal. In that case, the unanimous decision of the Tribunal was to dismiss all Mr Aslam's claims; and it went on to make an order against Mr Aslam, that he pay to the respondent one-third of the costs incurred by the respondent in respect of those proceedings, to be taxed if not agreed on County Court scale 2 standard basis.
- When Mr Lodwick's case was listed in July 2002 he found, to his distress, that it had been listed once again in front of Mr Peters. As we have indicated, this was not such a strange coincidence as might appear at first blush, namely in that it was not simply the second time that the Applicant had appeared at the Tribunal. He had appeared on a number of other occasions, as we have explained, and therefore he had clearly appeared in front of other tribunal chairmen as well as Mr Peters; but nevertheless here was, so far as the Applicant was concerned, his own case about to be judged by a Chairman, who had not only dismissed the claim in which he had been an advocate on behalf of Mr Aslam, but had made an order for costs by reference to the way in which the proceedings had been conducted by Mr Aslam himself and by his trade union representative, who had been Mr Lodwick. At the outset of the hearing in July 2002, Mr Lodwick, the Appellant, made known to Mr Peters the fact that he, Mr Peters, had been the chairman in the Aslam case, some four years earlier, and he made an application that Mr Peters should recuse himself from the hearing of his own case, which was listed to last, and in the event took, five days. The decision of the Tribunal is recorded in paragraphs 3 to 5 of the judgment as follows:
"3. At the outset of the Tribunal hearing on 22 July 2002 the Applicant objected to the Chairman, Mr R Peters, sitting as Chairman of the Tribunal hearing his case. His objection was that he could not have a fair hearing before Mr Peters, as Mr Peters had been the Chairman of a differently constituted Tribunal which some four years earlier had made a decision in a case where the Applicant had represented a party. According to the Applicant, the Tribunal in that case had made comments in the written decision about the Applicant's (Mr Lodwick's) conduct at that hearing and costs were awarded against the party he represented. The Applicant raised no objection to the other members of the Tribunal.
4. Mr Uduje on behalf of the Respondent submitted that there was no substance put before the Tribunal to support the application and submitted that the Chairman should sit.
5. After an adjournment the Tribunal announced its decision that the Chairman should not stand down from being the Chairman of the Tribunal. The reasons for that were that the Chairman was only one of three members of the Tribunal all with an equal vote. Although the Chairman recognised the Applicant he had no recollection of his conduct of four years earlier or of any comments made in the decision in that case. The case was listed for five days, there was not another Chairman to hear the case, and if it had to be postponed it would have to be postponed until February/March 2003 [which we interpose would have meant a delay of some nine or ten months]. The Tribunal was satisfied that a fair hearing of the case was possible and that accordingly the Tribunal should proceed to hear the case."
- It is apparent that what was before the Chairman at that stage is limited to what is recorded by him in that Judgment. He did not have a copy of the Decisions of the Aslam Tribunal, either on liability of 14 August 1998 (after a hearing on 17, 18, 19, 22, 24, 25 and 26 June 1998), although that does not have any substantial relevance, or in relation to costs of 6 January 1999 (after a hearing on 22 December 1998), which latter does make plain that a number of the criticisms of Mr Aslam resulting in the costs order were of the way in which, as his representative, Mr Lodwick had cross-examined some of the witnesses and had otherwise conducted parts of Mr Aslam's case. The Appellant submits that there ought to have been a longer adjournment, once he had made his application for recusal, than the short adjournment which occurred. He states that he positively made an application for such an adjournment. That is not recollected by anyone else involved in the hearing and, in particular, by Mr Uduje of Counsel; but for the purposes of this judgment we shall assume that it would have been open to the Chairman to have delayed longer before coming back and making his decision not to recuse himself known, i.e. sufficiently long to have obtained a copy of the two Decisions in questions, of which the only relevant one would have been the costs decision in the Aslam case. We shall assume, therefore, for these purposes, that the Tribunal, when it came to its decision as to whether the Chairman should recuse himself or not, would have had, although in the event it did not have, precise knowledge of the content of Mr Peters' two earlier Judgments as chairman of the earlier tribunal. What they amounted to, as we have indicated, is a finding by the Aslam Tribunal of which Mr Peters was chairman, that, in his capacity as advocate on behalf of Mr Aslam, Mr Lodwick had acted in certain respects unreasonably. At paragraph 10 of the Aslam Decision, Mr Peters, on behalf of that tribunal, said, among other things:
10. (iii) Various documents were produced by the Applicant and his representative for the first time at the Tribunal hearing including some even after the close of the Applicant's case.
(iv) The cross-examination of the Respondent's main witness, Mr Ash, by Mr Lodwick went on for something approaching an hour with apparent disregard to the issues, such that the Tribunal members decided the Chairman should intervene in the questioning.
11 . The Tribunal is also satisfied that the Applicant and his representative acted unreasonably in the presentation of the complaints and pursuing those complaints at the Tribunal hearing. In particular:-
(i) A scatter-gun approach was used as evidenced by the fact that there were some twenty-one individual complaints: many of those claims should not have been presented in the first place, and by way of example the Tribunal would instance complaint (iii), (vii), (xii), (xiii) and (xxi) - a cursory examination of those complaints and the evidence available to support them would have shown that they were without merit …
(ii) Even when the problems were pointed out to the Applicant and his representative they persisted with the claims. For example the fourth Originating Application was not withdrawn until the end of the sixth day of the hearing despite the lack of evidence to support it.
12. However, the Tribunal members limited their consideration of the application for costs to those matters which had been raised by Mr Morton in his submissions in support of the application for costs. The Tribunal is satisfied that the Applicant and his representative acted frivolously and/or unreasonably in presenting many complaints in the first instance, pursuing those complaints and in the presentation of the case during the Tribunal hearing."
- Mr Morton, on behalf of the respondent in that case, sought to persuade that tribunal to make a substantial order for costs taking into account the means of the trade union, and referring to a number of reported cases. Those submissions were unsuccessful in that regard, and the tribunal found in favour of Mr Lodwick, who argued against them, and only took into account the Applicant's means, and made an award not of what Mr Morton was seeking but of one-third of the total costs of the respondent, explaining the basis for doing so in paragraph 13 of that Decision.
- That is the nature of the Decision which would have been before the Tribunal in July 2002 had it adjourned further in order to send for a copy of it. Mr Lodwick submits, in the first instance, that the Tribunal should have concluded that Mr Peters should recuse himself in those circumstances, or, by way of alternative, that if he had given some further time and, either on the basis of an application, if it was made, for a further adjournment or otherwise, sent for the Aslam Costs Decision, then, had he taken the time to consider that Costs Decision, although he might well, and Mr Lodwick accepts probably would, still have rejected the recusal application, it might have affected the way in which he thereafter handled the hearing.
- Mr Lodwick's affidavit records what he says happened on the morning of the first day of the hearing in July 2002. He says as follows:
"11. … I only discovered shortly before entering the Tribunal room that Mr Peters was the Chairman for my case.
12. When I entered I caught Mr Peters' eye and it appeared to me that he did recognise me even before we had spoken. This impression was reinforced by what subsequently transpired.
13. I reminded Mr Peters of our previous acquaintance. Mr Peters' unconvincingly claimed, in an almost music-hall manner, that he did not remember me or Mr Aslam's case against the same Respondent.
14. I was very concerned that I would not be given a fair hearing in my own case. So I immediately applied, at the start that the Chairman stand down. I also asked for an adjournment so that I could prepare written submissions… My applications were refused.
15. Mr Peters and the two wing members had said or done nothing that constituted a guarantee that I would be given a fair hearing. On the contrary, the arbitrary manner with which Mr Peters rejected my application without any enquiry or deliberation created the opposite effect. I asked him to seek the guidance of the Regional Chairman. He refused. I believe that it is possible that Mr Peters had anticipated my challenge and already discussed this with the Regional Chairman because he acted as if he knew the Regional Chairman would back him."
- Mr Peters' comments in relation to this are contained in a letter to this Appeal Tribunal dated 1 April 2005, and he says as follows:
"I can confirm that on 22 July, when the case commenced, I had a vague recollection of having seem Mr Lodwick previously. I would certainly have denied any recollection of the case of Mr Aslam, as that denial was true. I have no idea what Mr Lodwick means when he refers to "music hall manner".
It is correct that at the outset of the hearing on 22 July, Mr Lodwick objected to me sitting as Chairman and he did refer to the case four years earlier. The sequence of events is accurately set out in paragraphs 3-5 of the Reasons attached to the Tribunal's decision.
There was no request for an adjournment. If there had been such a request, I would have noted it and there is no note.
With regard to the comment at the beginning of paragraph 15, the converse is true, namely that nothing had been done or said to indicate that Mr Lodwick would not be given a fair hearing.
I do not recall and have no note that Mr Lodwick asked that I seek guidance from the Regional Chairman on his request that I should stand down. He might well have done and I might well have discussed the situation with the Regional Chairman during the adjournment. I have really no recollection and I would repeat that it is now nearly three years ago."
- The comments from Mrs Maskell, the wing member, in this respect, are as follows:
"When reminded by the Appellant of a previous encounter, the Chairman stated that he did not recall the occasion. I do not recollect and cannot imagine Mr Peters doing so in 'an almost music-hall manner'.
No formal application was made for the Chairman to stand down nor for an adjournment so that the Appellant could prepare written submissions. The Appellant did say that he objected to the composition of the panel, especially the Chairman because of a case some 3 to 4 years ago and did not think he (the Appellant) would get a fair hearing. He then went on to say he had no objection to the lay members. The Respondent's representative pointed out that no judicial reason had been given by the Appellant.
The Tribunal adjourned to discuss the matter. The Chairman consulted the Regional Chairman and the Tribunal members. The decision was made to go ahead with the existing composition by all the members of the Tribunal. The Appellant was reassured by the Chairman that the Tribunal all felt a fair hearing was possible and would ensure this was the case. The Appellant asked that his objection be on record so he could appeal."
- The recollection by the Respondents is referred to in the affidavit of Ms Fashola, to whom I have referred,:
"3. On 22nd July 2002 at the start of the hearing, Mr Lodwick raised an objection to the composition of the Panel. Mr Lodwick objected to the Chairman, Mr Peters, hearing the case. His concerns were based on the conduct and outcome of another case. Mr Peters sought clarification as to when that case was heard and Mr Lodwick informed him that it was four years' ago. Mr Peters stated that as he sat on a number of cases each year, it was not possible for him to recall each case and had no recollection of the case that Mr Lodwick was referring to.
4. When asked to clarify the nature and the basis of his objection, Mr Lodwick indicated that he was asking Mr Peters to stand down from the case and did not believe that he would have a fair hearing due to the fact that he had represented an Applicant whose complaints against the Respondent were dismissed by a Tribunal panel chaired by Mr Peters. Costs were subsequently awarded against the Applicant.
5. Mr Peters assured Mr Lodwick that he had absolutely no recollection four years after the event of the case. Mr Peters asked if Mr Lodwick objected to any of his colleagues (Wing Members). Mr Lodwick said that he did not believe that he had met any of the Wing Members before.
6. When asked to expand on his application, Mr Lodwick could not (or did not wish to) provide any further particulars to support his request for Mr Peters to stand down. The Respondent was then asked for any comments on the request. In response, Mr Uduje submitted, in the absence of further particulars, Mr Lodwick's application simply amounts to requests for the Chairman / Judge to stand down on the basis that he or she had previously determined in a case against the party and since that has never been a proper basis to disqualify a Chairman / Judge, the request had to be rejected.
7. Following an adjournment, Mr Peters stated that he had considered the objections made by Mr Lodwick. Mr Peters made reference to the fact that he was one member of a Panel of three Members, all of who had equal votes. He reiterated that he had no recollection of the previous case and, as such, had no fixed views about Mr Lodwick or the merits of his present claim.
8. The Tribunal rejected Mr Lodwick's application on the basis set out in paragraph 5 of the extended reason of the Tribunal's decision dated the 16th August 2002. It is important to note that Mr Lodwick did not produce the decision that he referred to where allegedly criticisms were made."
- That is the full account from both sides and from the Tribunal as to what was said on the day, and we have filtered into that what would have been deduced from, in particular, the Costs Decision in Aslam, had there had been some delay in order to call for that Decision to be produced. What was not put before the Panel at the time is what Mr Lodwick has now recalled about one particular incident during the Aslam hearing; and consequently that was not a matter that was drawn to the attention of the Tribunal at the time and clearly could not have affected the Tribunal's views, one way or another, if it was not drawn to their attention. It has, however, now been referred to by the Appellant in his affidavit at paragraph 7, and it has been answered by Mr Morton of Counsel in his affidavit. That answer having been given, Mr Lodwick did not seek to pursue the matter any further in submissions either in writing or orally before us, but we mention it now simply for completeness. It is apparent that his recollection is correct that, at one stage, in the course of the hearing before Mr Peters, there was an exchange in which Mr Peters is said by the Appellant to have said "Why are you really here?"(recorded at paragraph 7 of his affidavit).This is explained in Mr Morton's affidavit, to which, as we have indicated, there has been neither response nor comment by Mr Lodwick. Mr Morton has taken his account from his counsel's notes, which relate to an exchange at the outset of day 7 of the Aslam hearing, on Friday 26 June 1998. The Chairman pointed out to the Appellant, as the representative of Mr Aslam, that he had cross-examined Mr Ash at length, but that out of that cross-examination there were only three possible relevant questions, and the rest did not deal with race, and it was in that context that he was querying, as Mr Morton's own note records: "Why are you here, Mr Lodwick?", pointing out that the kind of questions that were being asked did not appear to relate to the issues in the case before the Tribunal, albeit that they might relate to other issues relevant for the Union; and, having had that exchange, Mr Morton records that there was a formal warning given to Mr Aslam and his representative that, if in the future, there were similar cross-examination on issues not relevant to the hearing, then the applicant's case could be struck out. This was said to be a final warning in relation to the use of a power which the Chairman did not wish to use. That apart, Mr Morton does not support any other suggestion made by Mr Lodwick and it is quite clear that this incident, which is described by Mr Morton from his contemporaneous notes, is that which Mr Lodwick himself has recollected.
- It is also clear that that is the same incident as formed the basis, in part, of the subsequent findings with regard to costs in the Aslam Costs Decision. In the Aslam Liability Decision, the Tribunal recorded the following at paragraph 14(xix):
"This complaint is the subject of the fourth Originating Application. The evidence is inadequate to support the complaint and the tribunal would be minded to dismiss the complaint and not call upon the Respondent to respond. There was no evidence of either any difference of treatment or any causal link to the presentation of the first two Originating Applications. However the tribunal was persuaded that the … issue of the first two Originating Applications was a matter which could be tested by way of cross-examination of Mr Ash. However, during cross-examination of the Applicant the tribunal had heard the relevant evidence from the Applicant and had seen the written evidence as to the Applicant's attendance record and the overdrawn flexi time. The tribunal was also aware of the lack of evidence as to anything to link Mr Ash's dealings with the matters to the issue of the Industrial Tribunal proceedings or indeed evidence that Mr Ash was aware of those Tribunal proceedings. Accordingly the Tribunal warned the Applicant at that stage that although the tribunal was minded to allow the complaint to proceed in relation to the allegation of victimisation by Mr Ash concerning the Applicant's attendance and flexi time, the tribunal warned the Applicant that if this head of complaint failed and the tribunal considered that the Applicant had no reasonable grounds for making the complaint and had acted unreasonably in persisting in having the issue determined by the tribunal, then the tribunal would consider an award of costs against the Applicant."
Mr Morton's note, to which we have referred, records that at the end of this exchange between the Chairman and Mr Lodwick, Mr Lodwick, on Mr Aslam's behalf, did withdraw Particular (xix) and the Chairman made the not surprising response that that could and should have been done earlier.
- The recollection, therefore, of Mr Lodwick is largely right, but it appears to us, and perhaps this is the reason why the Appellant did not refer to it specifically before us today, to add nothing to the conclusion that there must obviously have been reasons for the finding of costs by the tribunal against Mr Aslam, due to the way in which his case was run, and that this formed part of those reasons as, indeed, is apparent from the Liability and Costs Decisions in the Aslam case. But, in any event, nothing specific was drawn to the attention of the Lodwick Tribunal, as we have indicated, and the case that was made before the Tribunal for recusal was, as we have stated, the fact that Mr Peters had previously come to that conclusion, and had made an order for costs in respect of Mr Aslam based at least in part upon the way in which his then representative, the Appellant, had conducted Mr Aslam's case.
- The suggestion by the Appellant that the decision by the Tribunal was reached in an arbitrary manner, to which I have referred by a quotation from paragraph 15 of his affidavit, is plainly not consistent with the comment not only by the Chairman and Mrs Maskell but also the evidence of Ms Fashola, and of course there was the adjournment, which is referred to in the Tribunal's Decision, and which plainly occurred. If that adjournment was not as long as the Appellant would have wished that does not make the decision arbitrary.
- It is right to record now that the Court of Appeal in its decision in remitting the appeal to the Employment Appeal Tribunal concluded that it was not an appropriate reason for a case of bias to be rejected that the chairman was only one of three members. Plainly if one of the three members of the tribunal is biased, then the applicant, or indeed, in an appropriate case, the respondent, does not have the benefit of a three member tribunal with an open mind. But that was only one of the reasons put forward by the Tribunal for rejecting the suggestion of bias. At the end of the day, the nub of the case was two-fold. One that Mr Peters did not have a recollection of the Aslam case, and had nothing more than the vaguest recollection of the Applicant himself, and had no reason to be biased against him: and secondly, the line of authority, to which reference was implicitly made by Mr Uduje of Counsel, which is well-known to the Chairman and which, as we shall indicate, was clearly well-known to the Court of Appeal, and to which we will turn.
- Mr Lodwick, himself, has helpfully drawn our attention to a case called Bennett v London Borough of Southwark [2002] EWCA Civ 223, in which the Court of Appeal concluded that the chairman had been too swift to recuse himself on the facts of that particular case. It would not need a decision such as Bennett to emphasise how very important indeed it is that judges, and in this case employment tribunals, should not be quick to recuse themselves, a course which will lead to inevitable and constant adjournments, to the prejudice of both parties. Further, it will encourage the making of unfounded allegations which will then be, just because it is easier to do so, complied with by a tribunal, and the slippery slope will be entered upon, which is specifically deprecated in the Locabail decision, to which we now come. In the Court of Appeal decision in this case there was considerable reference to Locabail. Pill LJ said as follows, in his judgment:
18. The test as to bias was stated by Lord Hope of Craighead in Porter v Magill [2002] AC 357. Lord Hope stated at paragraph 103:
'The question is whether the fair-minded and informed observer having considered the facts would conclude that there was a real possibility that the Tribunal was biased.'
That is the test which the Employment Tribunal were required to apply when deciding whether the Chairman should recuse himself. Before the Employment Appeal Tribunal, it was necessary first to test the Employment Tribunal's decision as to recusal in that way but also to consider the proceedings before the Employment Tribunal as a whole and decide whether a perception of bias had arisen.
19. This Court is at the disadvantage of not knowing what was said at the hearing when the Chairman decided not to recuse himself. [We now have, of course, a very much fuller picture.] It would in my view be likely to be unfair to one or other of the parties, and to the chairman and members of the Tribunal, to resolve that question without knowing what was said. I would invite the Employment Appeal Tribunal to exercise its powers in the manner contemplated in the Practice Direction before reaching its decision, thus giving the Appellant, the Respondents and the Chairman and members of the Tribunal the opportunity to say what happened. The question may then rise as to what, if any, enquiries should have been made by the Employment Tribunal before taking its decision as to recusal. It appears that the copy of the earlier Tribunal decision has been obtained by the Respondents from Tribunal records."
- That appears to us to have been an implicit suggestion that the earlier Tribunal decision, or, in fact, decisions, should or could have been obtained at the time.
20. I do, however, state at this stage that I do not consider the first of the reasons stated by the Employment Tribunal as to why the Chairman need not stand down, that the Chairman "was only one of three members of the Tribunal all with equal vote," to be a good one."
And he deals there with that point, to which we have referred.
21. Detailed guidance is given in Locabail mentioned by the judge in his ruling, as to how the question should be approached. In the present context, I would specifically draw attention to the statement of this court presided over by the Lord Chief Justice, at paragraph 25 [we shall cite the whole of 25 in a moment]:
'The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection.'
I consider that principle to be an important one in the administration of justice and one which applies with at least as much force to previous adverse comments upon a representative as upon a party or witness. A party cannot normally expect a judge to recuse himself because the judge has previously made adverse comments about him, in the course of a case or cases, though the circumstances of each situation will need specific consideration. Neither can parties assume or expect that findings adverse to a party in one case entitle that party to a different judge or tribunal in a later case. Something more must be and, it is claimed in this case, is shown. As to the relevance of the result of cases in this context, it must be borne in mind that it is at least possible that a litigant or representative who has behaved unreasonably or worse in one case will do so in a later case in which he or she appears."
- The full paragraph in the Locabail judgment given by the Lord Chief Justice, Lord Woolf, in tandem with the Master of the Rolls, Lord Phillips, and the Vice-Chancellor, Sir Richard Scott, read as follows:
"25. It would be dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias. Everything will depend on the facts, which may include the nature of the issue to be decided. We cannot, however, conceive of circumstances in which an objection could be soundly based on the religion, ethnic or national origin, gender, age, class, means or sexual orientation of the judge. Nor, at any rate ordinarily, could an objection be soundly based on the judge's social or educational or service or employment background or history, nor that of any member of the judge's family; or previous political associations; or membership of social or sporting or charitable bodies; or Masonic associations; or previous judicial decisions; or extra-curricular utterances (whether in textbooks, lectures, speeches, articles, interviews, reports or responses to consultation papers); or previous receipt of instructions to act for or against any party, solicitor or advocate engaged in a case before him; or membership of the same Inn, circuit, local Law Society or chambers. By contrast, a real danger of bias might well be thought to arise if there were personal friendship or animosity between the judge and any member of the public involved in the case; or if the judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case; or if, in a case where the credibility of any individual were an issue to be decided by the judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person's evidence with an open mind on any later occasion; or if on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind; or if, for any other reason, there were real ground for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues before him."
- Lord Woolf then turns to the passage which we have already read, which was quoted by Pill LJ, and he concludes:
"In most cases we think the answer one way or the other will be obvious, but if in any case there is real ground for doubt that doubt should be resolved in favour of recusal. We repeat every application must be decided on the facts and circumstances of the individual case, the greater the passage of time between the event relied on as showing a danger of bias and the case in which the objection is raised, the weaker, other things being equal, the objection will be."
"Something More"
- Pill LJ referred, in the Court of Appeal judgment, to "something more" being required, and so far as that is concerned Mr Lodwick submits that something more was here in this case, in that he submits that a deduction can be drawn from the way in which the hearing proceeded that there was indeed some apparent bias against him. He puts this on the alternative basis to which we have referred, either that that was, in fact, in any event the case, or, that, if there had been the further adjournment granted at the beginning which would have enabled the details of the Decisions in Aslam to be put before the Tribunal, even if the Tribunal had, at that stage, still rejected a recusal there would, or might, have been a different approach by the Tribunal. We should deal immediately with that point. We see no evidence or suggestion here that there would have been any difference in the approach of the Chairman or the Tribunal thereafter, had the Tribunal had the opportunity of seeing the decisions in Aslam. The nub of this complaint, as we have already summarised it, was that this Chairman had previously formed the view that, as the representative of Mr Aslam, in the way he handled the case, Mr Lodwick had contributed to a conclusion that the Aslam case was one in which costs ought to be awarded against Mr Aslam, although, as we have indicated, not an order taking into account the means of the union. Nothing further than that would have been deduced from the Decisions themselves.
- The way in which Mr Lodwick puts his case that there was something more, is first, in general terms, that he says, in paragraph 17 of his affidavit, that the Respondent was, as he puts it, 'given an easy ride whilst Mr Peters was busy tackling him for the nth time'. Then so far as Particulars are concerned, he refers to a number of matters in his affidavit, with which we shall deal.
- As for the question of generality of treatment of the Applicant, the wing member, Mrs Maskell, does not agree.
"I do not believe the Respondent was given an easy ride [she must mean the Applicant). However, on more than one occasion the he spent time asking irrelevant questions and this was pointed out to him. He sometimes showed reluctance to answer when questioned himself. He also had to be told by the Chairman not to interrupt and talk over the Chairman and witnesses."
She concluded that the Chairman had not been partial in any way.
- Although, of course, one should always be careful in taking at face value what is said by the successful opponent to someone who is alleging bias by the Tribunal, nevertheless the evidence both of Ms Fashola and of Mr Bucknill, in so far as he played a role in the case, do not support any suggestion that there was anything untoward at all in the way in which this Tribunal acted in handling the proceedings. And, of course, it must be emphasised as we always do, that there is a duty upon an employment tribunal by way of case management. The tribunal chairman is there to tease out what the issues really are, to discourage irrelevance, and to ensure that cases are carried through expeditiously. Although, of course, that will be mingled with due sympathy towards an unrepresented litigant, it has to be said that Mr Lodwick is not a norm of unrepresented litigants. He is someone who has had considerable experience as an advocate, and, of course, we ourselves have had the experience today of seeing how tenaciously he can argue and how he will, very often, without any disrespect at all, talk across what a member of the Tribunal is seeking to put to him; so that this is not a tongue tied and nervous litigant with whom this Tribunal was dealing. But quite apart from any additional sympathy towards an unrepresented litigant, the Tribunal has the duty of case management, in any event, and irrespective of whether litigants are represented or not, and in a way it will be the more important to adopt case management where there is a lack of representation.
- The only way in which these bias cases can be tested at the end of the day is by reference to specific examples, and, pursuant to that, and clearly cognizant of it, Mr Lodwick has sought to identify matters from which a conclusion can be drawn which supports his case that there was bias, or at any rate that a reasonable observer would be able to deduce apparent bias. The first matter to which he refers relates to the evidence called for the Respondents. Three witnesses whom he had expected to be called - a Miss Shah, Miss Crockford and a Mr Coffey - were not called by the Respondent, and in paragraph 24 of his affidavit he states that the Respondent deliberately chose not to call those three witnesses. Quite plainly, as indeed Mr Lodwick has accepted in the course of argument, which witnesses a party calls are a matter entirely for that party and it is not a matter for the tribunal to direct a respondent to call witnesses, indeed it is very often a sensible part of case management to query with parties as to whether some witnesses really need to be called. In the event, the Respondent did not call these witnesses and that is not a matter which can in any way be laid at the feet of the Tribunal, nor did Mr Lodwick so argue before us today.
- Two witnesses to whom he made reference specifically, in relation to their not being called, were a Mr Addo and a Ms Lyseight-Goslin. It is plain that the Respondent originally intended to call these witnesses, to such an extent that, when they were claimed to be, as became clear, unavailable on the dates that had been fixed, it made a specific application to the Tribunal, which led to the Tribunal stating that, if the witnesses could not be fitted in at the time then planned for the hearing, then the hearing would have to be adjourned in order to facilitate their attendance at a later date. That, of course, is not by any means an order that they must be called, it is simply evidence that at that stage the Respondent was intending to call them. At some stage prior to the hearing, the Respondent decided not to call Ms Lyseight-Goslin, and, indeed, notified the Appellant to that effect by a letter dated 15 July. The Appellant, by a letter in response, requested the Respondent to call Ms Lyseight-Goslin but it does not appear as though he ever actually issued a witness summons and if he issued one no order was ever made: none of that can lie at the feet of the Chairman.
- So far as Mr Addo is concerned, he too was unavailable at the date of the hearing and was originally intended to be called by the Respondent, but the Respondent plainly concluded that it would not call Mr Addo. Mr Addo was, as we have indicated, one of the three members of the disciplinary panel, one of whom, Mrs Palmer was already intended to be, and was in the event, called. There was a specific separate criticism which the Appellant wished to make in relation to Mrs Palmer, who was said to be in some way herself biased against him, but Mrs Palmer was called as a witness and cross-examined, and the issue as to whether she was, or was not biased, was fully explored. There was no similar complaint made in respect of Mr Addo. What appears to have occurred was that the Respondent concluded that it would not call Mr Addo, and that the only witness called from the disciplinary tribunal was Mrs Palmer; but it was pointed out that there would be no prejudice to the Applicant because Mrs Palmer could give the same evidence in material respects as that which would have been given by Mr Addo, and, in so far as she did not, her evidence would not be relied upon; and, as the Appellant had been pre-served with a copy of Mr Addo's witness statement, he would not be surprised by the additional evidence that was now to be given by Mrs Palmer.
- That appears to us to be a perfectly normal exercise of case management by the Respondent, and one which the Chairman, provided he was satisfied that there was no prejudice caused to the Appellant, would have been entitled to have accepted. Mr Lodwick submits that he was in some way prejudiced by that course being taken, and that that was indicative of a biased approach of the Chairman. We can see no substance whatever for that submission. He says that he would have welcomed some time to have assimilated how the statement of Mrs Palmer and Mr Addo were to be combined together. He did not, at any rate on the evidence before us, ask for an adjournment from Mr Peters of a short time in order to take that step. And in the absence of any such assertion or evidence, we do not have any comment by Mr Peters, but we have little doubt that, had an adjournment been asked for, it would have been granted for the purpose, for a very short time, provided of course there was a necessity for it, and we are far from sure that there was, given the fact that he was not on any basis being bounced by any fresh evidence being given. Further, as he confirmed in the course of the hearing, in answer to a question from Mr Gammon, he accepted that he had full opportunity, which he took, to cross-examine Mrs Palmer, both in relation to her own original evidence and that evidence which she was in fact giving as a surrogate for Mr Addo. And, as he accepted again in the course of the hearing, in any event, any failing in the disciplinary hearing would have been made good by the appeal hearing, which was a re-hearing, on the finding by the Tribunal and as to which no criticisms, so far as we can see, were made by him.
- The only other matter by way of alleged indication of bias shown to have occurred during the course of the hearing was by reference to the evidence of Mr Bucknill. This is described by the Appellant in paragraph 25 of his affidavit as follows:
"The Tribunal also altered evidence given by the Respondent's witness, Mr H. Bucknill, under cross-examination."
and he then states his belief that when Mr Bucknill gave evidence he said that disciplinary action taken against him was unprecedented. He then continues as follows in his affidavit:
"However, when I made reference to Mr Bucknill's answer the following day, Mr Peters, after nervously and hurriedly shuffling through his own notes purported that Mr Bucknill had not said any such thing! Instead Mr Peters' claimed his record (which he did not pass round), showed that Mr Bucknill had remarked my actions have been unprecedented."
- On the face of it, this is an allegation by the Appellant that, in the full face of the Tribunal, in front of the lay members, who also would have taken their own notes, Counsel for the Respondent, Mr Uduje and his instructing solicitor, who no doubt were also taking their own notes, in some way, the Chairman, unchallenged at the time, it seems, had deliberately rewritten a Note of Evidence that had been freely given only on the previous day. The evidence which has been put in before us shows this up as, to say the least, a completely over the top suggestion by the Appellant.
- Mrs Maskell, the wing member, supports the position of Mr Peters. She says as follows:
"Mr Bucknill did not say it was unprecedented for the London Borough of Southwick to commence disciplinary action … What Mr Bucknill did say was the Appellant's case was unprecedented, in that no one had before stated they were going to work five hours unilaterally. Mr Bucknill repeated this again in cross-examination. I do not recall the Appellant referring to this the next day or making any formal objection."
- I indicated earlier the difficulty which anyone alleging bias has in regard to the comments obtained from tribunal members or from a chairman, namely that they cannot be cross-examined. Mr Lodwick did ask for the Notes of Evidence to be produced, and such application was refused by the Registrar. But this matter is put beyond doubt by the fact that Mr Bucknill himself has, as we earlier indicated, provided an affidavit, and in the circumstances which I have described, has not been cross-examined on that affidavit, albeit that he attended today for that purpose. In those circumstances, his evidence, which is clearly the most reliable evidence because he is the man who was the witness, stands unchallenged, and he says this in paragraph 6 of his affidavit:
"I do recall saying that the actions of the Appellant were unprecedented in response to his question of me as to whether the actions of the Respondent were unprecedented in taking disciplinary action so soon after an authorised absence. I believe that the Chairman's recall as noted by the Appellant in his preliminary affidavit, was correct, rather than the version preferred by the Appellant."
- Of course, the explanation may be, because we have been told by Mr Lodwick that he has reams of notes of what occurred at the hearing, that the Appellant had prepared his own notes of cross-examination in which he was intending to ask the very question which Mr Bucknill recalls being asked, namely as to whether the disciplinary action was unprecedented; and that, although the Appellant expected, or hoped for, an answer agreeing with his question, which is what he would have noted down - because he was asking the questions he would not have a note of the response, at any rate not one easily taken down - and Mr Bucknill's answer to the contrary accords with the recollection of the wing member. We have no difficulty in resolving that issue against the Appellant.
- In those circumstances, there is nothing which supports, by way of particulars during the hearing, that there was some kind of apparent bias which could be illustrated by what occurred during the hearing. The last matter, and it is not surprising, is that the Appellant refers to the order for costs that was made against him. He points to the fact that an order for costs was made in the Aslam case, although as we have already indicated, that was not the order for costs which the respondent in that case had sought: they had sought a very much more substantial order, and one which took into account the means of the union and they had been unsuccessful in that regard. He makes an implicit suggestion that, in some way - such is his approach to Mr Peters - Mr Peters had "encouraged" the Respondent to make an application for costs in the Aslam case. That is firmly dealt with, and persuasively put to bed by Mr Morton of Counsel and Mr Bilby, who have both sworn affidavits which make it plain that it was only after receipt of the judgment in the Aslam case on liability, and a conference with counsel, that the decision was taken by the Respondent in that case to make an application for costs.
- So far as the decision in this case is concerned to order costs, of course the Appellant's starting point is that it has been overturned by the Court of Appeal, although it would not be the first time that orders made by an inferior tribunal have been overturned by the Court of Appeal. The suggestion that the Appellant makes is that it is so rare to make a costs order, that the fact that Mr Peters was involved in a costs order, of the kind to which we have indicated, in 1998 against Mr Aslam, and in the making of a costs order in 2002 against him, is in some way supportive of a suggestion that he had apparent bias against him.
- It appears to us clear that this falls wholly and straightforwardly within the principle to which we have referred, in Locabail, that it should in no way be a hindrance or a bar on a judge, or in this case, a chairman, sitting again on another case, that he has, on a previous occasion, made an order against the applicant, or in this case, against a party whom he represented. But the additional factor upon which the Appellant draws is that costs are rarer in an employment tribunal then they are in the courts. That is, of course, correct. This jurisdiction is not on the whole a costs regime, and in order for a successful party to be entitled to seek costs, it is not enough that the party should win, but the party must also be able to take advantage of Rule 14, as it now is, of the Employment Tribunal Rules. It is not right to say that there must be something exceptional about the case before a costs order can be made: it is simply that the Rule must be satisfied before an order can be made, and that is not a straightforward task. This has been fully explored by the Employment Appeal Tribunal in a judgment that I gave in October 2004 in Salinas v Bear Stearns International Holdings Ltd, not yet reported EAT 0596/04/DM, in which reference was made, among other things, to the very decision in Lodwick in the Court of Appeal in this case, but also to a number of other decisions, including the most recent decision in the Court of Appeal McPherson v BNP Paribas [2004] IRLR 558 in a judgment of Mummery LJ, the former President of the Employment Appeal Tribunal, and who of course gave permission to appeal in this case.
- In summary, what we said in Salinas, and appears to us still to be the case, is that whether a costs order is exceptional or unusual is not significant provided that the proper tests are applied. We referred there to the statistics, which the Appellant himself has relied upon, which have shown an increasing number of costs orders made in employment tribunals. In that case, Salinas, in fact the order for costs was made against the background that the sum which would be going off for assessment was in the region of £120,000, a substantial sum, and that was a case in 2003, and certainly large claims for costs are being made.
- In this case, the Tribunal awarded £4,000 against the Appellant, and that award has been set aside by the Court of Appeal. It was set aside upon the basis that the Tribunal did not give sufficient reasons for its conclusion. We are wholly unpersuaded that the simple fact that an application to the Chairman to recuse himself having failed, this Tribunal went on to make an order for costs against the Appellant in the light of the way in which over five days of the hearing had proceeded, is enough to begin to amount to something more, which is required in order to add to what otherwise is simply what one might call the Locabail background. Indeed, if the fact that a refusal of an application to recuse oneself is followed by an order for costs is going to add substance retrospectively to that application for recusal, that is, itself, going to amount to a considerable disincentive to and fetter upon the independence of judges.
- In a strange way, the very fact that this Tribunal went on to make an order for costs in the way it did, may argue that there was no bias in the sense that there was no conclusion by the Tribunal that it was at any risk of having to handle this particular Applicant with kid gloves simply because of the fact that a recusal had been sought. It appears to us that this Tribunal acted in a straightforward way, and, as it turns out, wrongly in law made a costs order against the Appellant. But if we had been in any doubt, and were still searching for some unfairness, some unfavourable approach by this Tribunal, either indicated by the eventual order for costs, or to be drawn from the way in which it approached the Respondent's conduct in relation to witness statements, the matter would have been, in our judgment, put beyond doubt by the very evident approach that this Tribunal took to assist the Appellant in the way in that his case was formulated. We quite understand that the Appellant finds it difficult to accept that that is what the Tribunal was doing, given his fixed view that from the very moment that he and Mr Peters locked eye balls at the outset of this hearing Mr Peters was determined in some way to do him harm; but the evidence appears to us to be completely the reverse. It is quite apparent from the paragraphs of the judgment, which we have read, at paragraphs 11, 12 and 13, that this Tribunal recognised what it was that the Appellant was saying, and did its best to formulate the case for him, and he accepted that reformulation in a way which, if successful, would have achieved some result. Had he pursued his case that he had in fact resigned, not only would the Tribunal have been bound, on its findings of fact, to find that he did not, not least because there was no evidence of any resignation and all the evidence was of him doing his best to ensure that there was no resignation, but that, even if there was resignation, he would have suffered no apparent loss. It well recognised that the reality of what was occurring was not an attempt by him to resign but an attempt by him to find a way out which would have enabled him, somewhat unusually, to continue to be employed by the Respondent, while being employed full-time by another employer; and when his employer, the Respondent, had no wish to go along with that proposition, the Tribunal well understood that the Applicant was asserting that that could have been achieved by one or more of the combination of requests that he made and that the response of the employer to those various requests culminating, as he saw it, in a heavy handed disciplinary proceeding, was both unreasonable and in breach of contract. That is the case which the Tribunal assisted him to put forward, not by way of replacement, not even by way of alternative to his case, but by way of supplement of it.
- We have read those paragraphs, and we do not propose to repeat them in this judgment, but on any objective view, on any view given by a fair minded and informed observer, as Lord Hope postulates in Porter v Magill [2002] 2 AC 357, this was a Tribunal, if not leaning over backwards, certainly doing its job more than adequately to assist an unrepresented litigant to put his case in the best conceivable way in the light of the evidence. We are entirely satisfied that there is no possible finding that this Tribunal did anything other than that, and that the case of apparent bias has no substance whatever. In those circumstances this appeal is dismissed.
