APPEARANCES
| For the Appellant |
MR JONATHAN COHEN
(of Counsel)
Instructed by:
Messrs Dolmans Solicitors
17-21 Windsor Place
Cardiff
CF10 3DS |
| For the Respondent |
MS HELEN GOWER
(of Counsel)
Instructed by:
Messrs Thompsons Solicitors
Agincourt
14-18 Newport Road
Cardiff
CF24 OWS |
SUMMARY
PRACTICE AND PROCEDURE: Bias, misconduct and procedural irregularity
Bias. Claim of unfair dismissal by senior legal executive against local authority employer. Claim upheld and substantial award of compensation ordered. One of the Tribunal lay members was District Secretary of the RMT Trade Union and, at the time of all relevant hearings in the case, was involved in that capacity in a dispute with the Respondents regarding their licensing of taxi cabs. He had criticised the Respondents openly, in writing and in a press statement and was reported by the local press as having 'blasted' the Respondents' report on the matter as 'extremely biased' and as having shown 'very poor leadership and inefficiency'. The Respondents' legal services department did not become aware of his involvement in the taxi licensing dispute until after the merits hearing; they unsuccessfully sought a review on bias grounds. They appealed to the EAT and the EAT upheld the appeal; this was a plain case of apparent bias and it was surprising (a) that the lay member had not volunteered the relevant information and (b) that the Tribunal had not itself recognised, when the matter was aired at review, that the demands of impartiality required that the review be granted.
THE HONOURABLE LADY SMITH
INTRODUCTION
- These are appeals against judgments of an Employment Tribunal sitting at Cardiff, Employment Judge Dr Rachel Davis, finding that the Claimant had been unfairly dismissed and automatically unfairly dismissed by his local authority employer (and awarding compensation of £66,375) and refusing to review their decision on the merits of the claim. The judgment on the merits was registered on 23 August 2007 and review was refused by judgment registered on 6 November 2007. We will continue to refer to the parties as Claimant and Respondents, for the sake of clarity.
- The Tribunal consisted of an Employment Judge and two lay members. One of the lay members was Mr W K Thomas, District Secretary of the National Union of Rail, Maritime and Transport Workers ('RMT'). The RMT represents taxi drivers in Swansea.
BACKGROUND
- The Claimant was employed by the Respondents as a Senior Legal Executive in their Legal Services Department from 21 March 1977 until he was dismissed for gross misconduct on 20 September 2006. The misconduct founded on by the Respondents was the deliberate giving of false information by the Claimant as to his whereabouts during a period of sickness absence. The misconduct was regarded as gross misconduct in light of the fact that the Claimant was employed as a legal officer and high standards of probity were, accordingly, expected of him.
- The hearing in respect of the Claimant's claim that he had been unfairly dismissed took place before the Tribunal on 19 and 20 July 2007.
- By September 2006, a dispute had arisen between the Respondents and the RMT acting on behalf of Swansea taxi drivers. The Respondents had adopted a policy in respect of taxi regulation with which the RMT did not agree. The RMT wanted the Respondents to limit the number of licences. Meetings took place, attended by Mr Thomas and correspondence ensued. By letter dated 17 October, Mr Thomas wrote to the Respondents' Director of Environment in terms which included:
"I was rather surprised to be asked for the basis of my organisations request for a review. None who was present at the last consultative meeting , least of all the Chairman and his two fellow elected colleagues, could have possibly failed to know the basis for my union's request as these were expressed by me and several others at the meeting, one of whom actually walked out in sheer exasperation."
- The RMT and the Swansea Hackney Owners and Drivers Association issued a joint press statement on 14 December 2006, in terms which included:
"We regret we wish to inform the people of Swansea that Swansea Hackney Carriages shall be taking strike action during the Christmas and New Year holiday period.
The reason for such industrial action is as follows:
The people of Swansea will be aware that Swansea Council has for many years adopted a policy of total non- regulation of Hackney Carriage licences, which has resulted in the city becoming totally saturated with Black Cabs. The council refers to this practice as "the open market policy.
The intention of this foolish policy is to allow Hackney Carriages to set their own numbers without any council intervention whatsoever…….."
- A meeting took place between taxi drivers and the Respondents on 15 December 2006. The meeting took place at the Respondents' County Hall. Mr Thomas was present. Other taxi driver representatives were present. Two councillors were present. Employees of the Respondents were present including the Head of Environmental Health for Swansea, Martin Saville. Shortly put, pressure was being put on the councillors to decide to limit the number of taxi licences, irrespective of the views or decisions that had been taken by their employees. Mr Thomas spoke at the meeting to present the case on behalf of the taxi drivers. Mr Saville shouted "rubbish" whilst he was doing so at which Mr Thomas broke off to speak directly to the two councillors who were present saying, according to his (Mr Thomas') affidavit:
"This is what concerns me. Who is calling the shots, is it the elected representatives or is it the employees who are not elected but appointed?"
Also at that meeting, one of the taxi driver representatives accused the Respondents of having an ulterior motive, suggesting that they would not want to limit the number of taxi licences as the licence fees funded a large proportion of the Environment Department. Matters were evidently very tense if not heated at that meeting.
- By letter dated 16 December, Mr Thomas wrote to Councillor John Hague of the Respondents. He referred to a meeting he had had with him, two council employees and other members of the RMT on 8 November 2006. He wrote:
"When you said that much of the information in my letter is incorrect, what are you referring to? My notes show that I made reference to the Stern report and report of the House of Commons Select Committee chaired by Mrs Gwyneth Dunwoody on the failure of deregulation of Transport … the meeting concluded with a joint statement which all sides agreed with and which was to be published in the South Wales Evening Post on Monday 18 December. I would be grateful for your comments."
- In the event, the report that appeared in the newspaper on that date was not an agreed joint statement. An article appeared in the South Wales Evening Post on 18 December 2006 under the following heading:
"Council report on taxi trade blasted as biased"
The newspaper report included the following:
"A UNION boss representing Swansea taxi drivers has blasted a council report on the trade as "biased".
City taxi drivers are urging Swansea Council to put a limit on the number of licences to safeguard their livelihoods
…
Union of Rail, Maritime and Transport workers' Swansea branch secretary Ken Thomas criticised the report to the full council as "extremely biased".
He said the council's argument that unlicensed activities in the city would increase if there was a cap on hackney carriage vehicle numbers "shows very poor leadership and inefficiency".
Mr Thomas said: "There can be no doubt that 77 local authorities have capped numbers."
And he warned that queues around the city's 40 taxi rank spaces were illegal. Mr Thomas went on: "The fact that hackney carriage vehicle drivers are now forced to work long shifts simply to make ends meet is a cause for concern from the perspective of Health and Safety.
"Tired drivers are dangerous drivers and any situation where drivers are forced to work when tired is a recipe for disaster."
- The Mr Thomas referred to in the newspaper report was Mr W K Thomas, the lay member of the Tribunal that determined the Claimant's claim.
- The RMT subsequently obtained its own report and Mr Thomas sent it to the Respondents in March 2007. We were advised that the dispute has not yet been satisfactorily resolved. It was ongoing as at July, September and October 2007. It has been a particularly acrimonious dispute.
- The Respondents' employees who were involved in the dismissal of the Claimant, the handling of his claim and the conduct of the Tribunal hearing were not aware of that the lay member, Mr Thomas, was the RMT official involved in the taxi driver dispute until after the July hearing. Shortly thereafter, Patrick Arran, solicitor for Corporate Services Directorate Lawyer, employed by the Respondents, was told that Mr Thomas, the lay member, had been seen sitting in the foyer of County Hall and it was thought that he might be Mr Thomas of the RMT. Mr Arran clerked the Environment Scrutiny Board on 20 August 2007, at which Mr Thomas spoke in his RMT capacity. Mr Arran then realised that he was the lay member who had sat on the Tribunal hearing the Claimant's case.
- On 23 August 2007, the Tribunal issued its judgment finding that the Claimant had been unfairly dismissed and automatically unfairly dismissed under s.98A of the Employment Rights Act 1996, the latter, somewhat surprisingly, in the absence of any claim by the Claimant or submission on his behalf that the dismissal was automatically unfair.
- The Respondents applied for a review of that judgment by application dated 5 September 2007, submitting that the interests of justice required a review. They presented a case of bias under reference to the above noted factual account of Mr Thomas' involvement in the taxi licensing dispute in his RMT capacity. Mr Thomas was a member of the Tribunal that decided the review application.
- The review application was heard on 12 October 2007 and rejected that day. A remedies hearing had been fixed for the same day. The Respondents had made an application to adjourn the remedies hearing inter alia on the ground that it was appropriate for the review application to be considered and written reasons provided before the listing of the remedies hearing, but that application had been rejected by the Tribunal on 25 September 2007.
- The Tribunal's reasons for rejecting the review application were not issued until after they had reached a determination on remedy and issued a judgment dated 24 October 2007 finding the Respondents liable to the Claimant in the sum of £66,375.
- The Tribunal's reasons for rejecting the review application were firstly that a local authority is not a member of the public and there was nothing to suggest that Mr Thomas knew the particular individuals involved in the Claimant's case prior to the hearing; secondly, that reliance on words such as "blasted' in a press context was not a safe method of establishing animosity and Mr Thomas had had a duty as a union representative to say whether he disagreed with the Respondents – he had done nothing more than represent his members with the normal vigour that might be expected; and thirdly they were satisfied that a fair-minded observer having considered the facts, including the documentation relied on by the Respondents regarding Mr Thomas' involvement in the taxi licensing dispute, would take the view that it represented nothing more than a normal trade union discussion and consultation on behalf of a group who had nothing to do with the Respondents' Legal Department. The Tribunal stressed that a fair minded observer would bear in mind that a local authority has many departments.
The Relevant Law
- In the United Kingdom, it has always been recognised that it is of the utmost importance that judges should be independent and impartial in order to preserve public confidence in the administration of justice. Article 6 of the European Convention on Human Rights affords strong affirmation of that fundamental principle:
"(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
- Actual bias will obviously constitute a breach of Article 6. However, the appearance of independence and impartiality is as important as there being actual bias present. Justice must be done and justice must be seen to be done. Legitimate doubt as to the independence or impartiality of a tribunal requires to be excluded and to achieve that, an objective view requires to be taken. If grounds exist which are sufficient to create in the mind of the fair minded and informed objective observer a doubt about the judge's impartiality then the inevitable result is that the judge is disqualified. In such a case there is apparent bias. Such bias also amounts to a breach of Article 6.
- There has been discussion as to whether the most appropriate way to articulate the test is in terms of 'real possibility', 'reasonable suspicion or reasonable apprehension', or 'real danger' of a lack of impartiality. The view has, in the past, been expressed that the use of the terms 'reasonable suspicion or reasonable apprehension' is most consistent with the Strasbourg jurisprudence. However, as was said by the Court of Appeal in the case of
Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 45, at paragraph 17:
" …whatever the merit of the reasonable suspicion or apprehension test the test of real danger or possibility has been laid down by the House of Lords and is binding on every subordinate court in England Wales."
- That said, in the later case of Porter v Magill [2002] 2 WLR 37 the test was said to be:
"whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased." (para 103)
the reference to 'a real danger' being deleted, Lord Hope of Craighead explaining, also at para 103:
"Those words no longer serve a useful purpose here, and they are not used in the jurisprudence of the Strasbourg court."
- The reference to the 'possibility' requiring to be a 'real' one excludes fanciful possibilities. It should though also be borne in mind that the guidance provided in Locabail includes, at paragraph 25, that if there is real ground for doubt then that doubt should be resolved in favour of recusal. That advice reflects the approach set out in the Strasbourg case law. In, for instance, Hauschildt v Denmark [1989] 12 EHRR 266, at para 68, the court observed:
"Under the objective test, it must be determined whether, quite apart from the judge's personal conduct, there are ascertainable facts which may raise doubts as to his impartiality. In this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public … Accordingly, any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw."
- Further, it is inherent in the test for apparent bias that it is not a question of asking the judge whether he was biased. As was commented in Locabail at para 19:
"There can, however, be no question of cross-examining or seeking disclosure from the judge. Nor will the reviewing court pay attention to any statement by the judge concerning the impact of any knowledge on his mind or his decision: the insidious nature of bias makes such a statement of little value, and it is for the reviewing court and not the judge whose impartiality is challenged to assess the risk … "
- We would also draw attention to the facts of two of the authorities that were relied on in the course of the appeal. Whilst all cases where bias is alleged will turn very much on their own facts, the factual background in these authorities and the determinations reached is illustrative of the sorts of circumstances which are liable to amount to apparent bias.
- In Locabail, as soon as the Deputy Judge discovered that the very large firm of solicitors of which he was a partner had, at an earlier date, been instructed in an attempt to obtain a bankruptcy order against the husband of one of the parties, he brought it to their attention. It was not he who had been instructed and he had had no prior knowledge of the matter. Neither party objected to him continuing to preside. He had acted appropriately and a subsequent bias challenge was not upheld.
- In the case of Timmins v Gormley (considered along with Locabail), a recorder who sat in a personal injuries case and awarded substantial damages to the plaintiff was a Queens Counsel who had previously written four articles strongly supporting plaintiffs and criticising defendants' insurers as a general category, in various respects. He was highly critical of the conduct of insurers in one particular case and in one of the articles he set out lessons that plaintiffs' lawyers should learn from it, referring to what "we" should do. The recorder disclosed to parties that he was a member of the Association of Personal Injury Lawyers, that he knew that there had been a payment into court and that he had previously cross examined the defendant's expert in a manner that he was aware had upset him. The Court of Appeal said that they found the issue a difficult one but came to the view that in the light of the recorder's expressed pro-claimant anti-insurer views he might have unconsciously leant in favour of the claimant and they concluded that there had been a real danger of such a result. They determined that a lay observer with knowledge of the facts would not have been able to exclude that possibility.
- In Howell and Others v Lees–Millais and others [2007] EWCA Civ 720 one of the claimants was a partner in a large firm of solicitors. He was one of three claimants who made application to the court in their capacity as trustees of two settlements. There had been discussions between the judge and the firm about the possibility of him leaving the bench and joining them. There was email correspondence between the judge and the partner who was head of the contentious group in the firm which plainly upset the judge. He was disappointed and the emails showed some animosity on his part towards that partner and the firm. The judge was asked to recuse himself and the application was contested. The judge refused the application. Sir Igor Judge (P) said that the application to recuse was entirely justified. He said, at para 40:
"The exchange of still very recent emails demonstrates that the judge was extremely displeased that the negotiations about his possible future with the firm of solicitors … had broken down. His irritation is obvious. It did not arise from previous professional encounters with the solicitors or their conduct of earlier or indeed the current litigation when different considerations would apply. It arose exclusively and directly from the judge's personal affairs and his private but recently unsuccessful dealings with Addleshaw Goddard. The solicitors were not simply solicitors on the record. Mr Howell, a partner in the firm of Addleshaw Goddard, was a party to what I may loosely describe trustee proceedings, and this contentious litigation carried with it at least the potential for serious adverse personal consequences for him."
Matters were compounded, it seems, by the way that the judge handled the application.
The Appeal
- For the Respondents, Mr Cohen stressed that the appeal was not taken lightly. The Respondent, as a local authority employer, had had quite regular employment tribunal experience but had not found themselves in this position before. The Respondents were left with the feeling that they had not been afforded justice. Further, the review hearing had been distinctly unpleasant and Mr Cohen had felt that he was put under considerable pressure in difficult circumstances.
- Mr Cohen referred to the documents showing the nature and extent of Mr Thomas' involvement in the taxi licensing dispute with the Respondents. The two sides were, he said, at loggerheads on the matter. The heading on the newspaper article provided a good measure of the way in which it was regarded by the objective bystander. Mr Thomas had made clear and public criticism of the Respondents. He had shown clear 'anti–Swansea' views. It was startling to suggest that a judge was entitled to sit if he had publicly criticised one of the parties prior to the hearing. Matters were compounded by the fact that Mr Thomas had not disclosed his involvement in the dispute. In addition to the case of Locabail and Lees–Millais, Mr Cohen referred to Hamilton v GMB [2007] IRLR 391 for the observation that it is important that lay members who have any concerns at all about the propriety of their sitting draw the matter to the Chairman's attention in advance of the hearing. He also referred to the case of AWG Group v Morrison [2006] 1 WLR 1163 in support of a submission that the matter of bias was not a case management decision in respect of which the court has a discretion in which it can take account of costs, inconvenience or delay.
- Ultimately, Mr Cohen's submission was that he was not suggesting that trade union officials should not sit in the industrial area in which they have experience. However, if it was the case that such an official had had dealings with the particular employer that could cause a difficulty. All cases were fact sensitive but where there had been such dealings, there could be bias and so the official was, in those circumstances, obliged to disclose them. That Mr Thomas had not done so in this case emphasised the extent of the bias. He should have made full disclosure. Had he done so the Respondents would certainly have objected to him sitting.
- For the Claimant, Ms Gower said that it was accepted that the test referred to the reaction of the objective lay observer and also that it was not a question of cost or inconvenience. She sought to distinguish the facts of the present case from those in Lees-Millais where the animosity identified was to the whole firm. Here, the animosity was towards the section of the Respondents that dealt with taxi licensing. It was not directed to the Legal Services department. She submitted also that the terms in which Mr Thomas had expressed himself were not intemperate. There was a challenge to the Respondents in respect of a single issue and the issue had no factual connection with the present case. If union officials who sat as lay members in the employment tribunals were required to disclose whether they had had dealings with employers that would be a burdensome task, particularly in the case of local authorities.
Discussion and Decision
- We have no hesitation in upholding the appeal. Mr Thomas had, since the latter part of 2006, been involved in his capacity as RMT District Secretary in a difficult and acrimonious dispute with the Respondents over the taxi licensing matter. The dispute remained unresolved at the time of all the Tribunal hearings. He had spoken out publicly against the Council calling their report "extremely biased", criticising them as being of "very poor leadership" and being "inefficient", and going as far as to accuse them of having caused an illegal state of affairs regarding taxi queues and one which gave rise to dangers to public health and safety. He had specifically challenged two of the councillors in general terms about "who called the shots?" - the councillors or their employees? - and he had been present at a meeting when one of those with whom he was associated in the taxi licence campaign had accused the Respondents of having an ulterior motive. That he held a thoroughly negative view of the Respondents as a whole and had been prepared to challenge them in the public domain is plain from the documents. We are readily satisfied that the fair minded observer with this knowledge would have concluded that there was a real possibility that he would be biased against the Respondents and in favour of the Claimant. We do not consider that he would have had any doubt about that.
- We do not know whether Mr Thomas raised the fact of his involvement in the taxi licence dispute with the Employment Judge prior to the July hearing; he certainly should have done and she should have advised him that he should not sit. However, what we do know is that he did not volunteer the information to parties at the start of the hearing in July. He was duty bound to do so. In the event that the fair minded observer had retained any doubt about the matter on the basis of the information about the background facts, we consider that that doubt would have been resolved, so as to conclude that there was bias, by the fact that he did not make the disclosure.
- Dealing separately with the issue of whether the fact that the Claimant's case was associated with the Legal Services Department rather than that which dealt with taxi licensing, made a difference, we do not accept that it did. Quite apart from anything else, the Claimant's dismissal was handled by the Principal Human Resources Officer (who copied his decision not only to another Principal Human Resources Officer and a Directorate Lawyer but to the Head of Transportation & Engineering) but his appeal was heard and determined by the Respondents' Strategic Director. It was, accordingly, not correct to suggest that the Claimant's case related only to the Legal Services Department. Further, Mr Thomas' criticisms went beyond criticism of the department responsible for taxi licensing. Like the judge in the Lees- Millais case who was ill disposed to the firm as a whole as well as to the particular partner he had been dealing with, his articulated antipathy was also directed at the Respondents as a whole. The objective bystander would have been bound to get the impression that it was the whole of the Respondents for whom he held his expressed disregard.
- We were not persuaded by Ms Gower that the logical extension of upholding the appeal in this case would mean that trade union officials who sit as lay members in the employment tribunals or indeed, in this Tribunal, would be faced with an unduly burdensome responsibility to identify prior involvements which ought to be disclosed. Mr Cohen's ' dealings' formula may be putting matters too loosely since it might be interpreted as covering all communications between the official and the employer. However, they will know if they have been involved in dealings which have been in way contentious and, in particular, they will know if, wearing their union official's ' hat' they have articulated criticism of the employer, particularly if they have done so publicly or if news of their having done so has reached the press. These are examples of circumstances in which we do not see that there should be any difficulty in the lay member identifying that there could be a problem. There may be others, depending on the particular facts and circumstances of the case. Ultimately, however, the fundamental duty to afford parties a fair hearing before an impartial tribunal, namely a tribunal which is free of not just real but apparent bias, requires to be borne in mind and practical difficulties in identifying problematic circumstances in advance are as irrelevant to the question of whether or not that duty has been performed as are question of the inconvenience, expense and delay involved in starting again.
- We would add that we are surprised that the Tribunal did not recognise, when review was sought, that there was a clear case of apparent bias. Even if Mr Thomas could be excused for not recognising the problem before then – not that we are saying that he could – it should have been quite plain to him at that stage that he required to recuse himself, the inevitable consequence of which would have been that at least the time, trouble and expense of the remedies hearing and of this appeal would have been saved. Nor is it clear to us how or why the Tribunal thought it appropriate to refuse to adjourn the remedies hearing once the grounds for the review application were known. It was not for them to prejudge the review hearing. There were two possible outcomes of that hearing, one of which was that they would not have been able to proceed to a remedies hearing at all. It is also odd that the Tribunal delayed issuing its judgment in the review hearing to a date later than its judgment in the remedies hearing. The review judgment ought to have come first and questions are raised in our minds as to the competency of issuing the remedies judgment whilst, on the face of the register, the review judgment was still pending. We do not, however, require to resolve that issue in the circumstances.
Disposal
- We will accordingly uphold the appeal, which will have the effect of setting aside all three judgments of the Tribunal, and remit to a freshly constituted Employment Tribunal to consider the entire case anew.
