Appeal No. EAT/125/90

	EMPLOYMENT APPEAL TRIBUNAL
	4 ST. JAMES'S SQUARE, LONDON, SW1 4JU

		At the Tribunal
		On 14 November 1991

	Before

	THE HONOURABLE MR JUSTICE TUCKER

	MR J H GALBRAITH CB

	MR K GRAHAM CBE

RED BANK MANUFACTURING CO LTD	APPELLANTS

MR A P MEADOWS	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	Mr N Giffin
(Of Counsel)
Messrs Fishers
6-8 Kilwardby Street
Ashby-De-La-Zouch
Leics  LE6 5FU

For the Respondent	Mr D Dale
(Of Counsel)
Messrs D H Walton
154 Scalpcliffe Road
Burton upon Trent
Staffs DE15 9AD

	MR JUSTICE TUCKER:  There are two Appeals brought by employers from two decisions of the Industrial Tribunal arising out of different aspects of the same case held at Leicester on 7/8 December 1989 and on 6 August 1990.  The Tribunal comprised the same Chairman and members on each occasion.  It is important to observe that each of those decisions was unanimous.

	On the first occasion the Tribunal's decision announced at about 4 pm on 7 December, was that the Applicant the Respondent to the present Appeal, had been unlawfully dismissed.  The reasons for that decision were delivered on 9 January 1990.  On the second occasion the Tribunal awarded him a sum of compensation. 

	We are at present concerned only with the first occasion which it is convenient to refer to as the liability proceedings.  The Appeal from those proceedings is brought on two questions of law.  First it is alleged that a breach of natural justice occurred because one of the members of the Tribunal fell asleep during the hearing.  Second, it is alleged that the Tribunal misunderstood the evidence in a material respect.

	It is agreed between Counsel now appearing for the parties that it will be convenient for us to consider that Appeal at the outset and to give our decision upon that at this stage before proceeding if need be, to hear the other Appeal.

	The Appellants are manufacturers of terra cotta and bricks.  The Respondent started to work for them in 1957.  He had various clerical jobs.  In due course redundancies occurred and he having received an assurance that he still had a job, was nevertheless dismissed.  It is unnecessary for present purposes to go further into the circumstances of that dismissal.  The question that is now raised for our consideration is whether there was a breach of natural justice in the Tribunal's proceedings.

	We have been very greatly assisted in the matter by the way in which Counsel on both sides have presented their arguments before us.  Mr Giffin for the Appellants, submits that there is in this case no real conflict of fact.  I have referred to the grounds of his Appeal and I will now amplify them.  The Appellants contend that justice was not seen to be done in that one of the members of the Tribunal was observed to fall asleep for short periods on a number of occasions during the hearing on 7 December and second, that when the matter was drawn to the attention of the Learned Chairman of the Tribunal, she declined to order a re-hearing of the Respondent's application.

	The matter is amplified by Affidavits sworn on the Appellants' behalf.  The first of these is from David Green, their works engineer director.  He and the second deponent Mr Kenneth Alan Russell their works director attended the proceedings.  In his Affidavit Mr Green deposes to this effect in paragraph 2 that during the course of the morning while one witness was giving evidence he, Mr Green, noticed that one member of the Tribunal had his eyes closed for several periods of minutes at a time.  His head seemed to be nodding, he was slumped in his seat and he was not making any notes.  Mr Green formed the view that he was asleep and not paying any attention to the proceedings.

	We would emphasise at that stage that those were Mr Green's observations during the morning's evidence.  But the Affidavit goes further.  In para. 4 he deposes that after the lunch adjournment he again noticed that the member closed his eyes on several occasions as in the morning session.  He was slumped in his seat for several minutes at a time and gave every impression of being asleep.   Mr Green continues:
"At the end of the days hearing I raised this point with the Company's solicitor, Mr Killin, for the first time."
	That, in our view, is a very material feature of this case.  There had been several adjournments, a short adjournment of some time during the morning, the lunchtime adjournment between about 1 pm and 2.15 pm, another adjournment during which the Tribunal considered its decision and then at the end of the day, after the Tribunal had announced its decision.  It was not until at the end of the day and after the decision had been announced, that these complaints came to be made.  

	What does Mr Russell say.  In para. 4 of his deposition he deposes to this effect:
"During that period I saw one member of the Tribunal with his eyes closed for a period of several minutes.  During that time he did not move nor did he make any notes.  In fact he gave every appearance of being asleep.  I kept a close watch on him.  I noticed that he had his eyes closed on several occasions for a similar length of time and again seemed to be asleep.  I also formed the view that when his eyes were open his attention seemed to be wandering and that he did not seem to be paying much attention to the proceedings.

At the end of the days hearing I mentioned what I had seen to the Company's solicitor.  I had not done this previously because although I was unhappy about what I had seen I was not sure what the correct procedure was for doing something about it.  I was also concerned that in raising the point I might offend the Tribunal.  I remember, however, Mr Killin was very surprised to hear what Mr Green and I were telling him.."
	Now that is the evidence on which this Appeal is brought.  It is very material to bear in mind that the parties were represented by Solicitors,who were available as the parties' representatives, to receive any complaint the parties thought they perceived in the Tribunal's procedure.

	It does not in our view behove deponents now to say they did not know how to raise the point or that they were afraid of giving offence, when they had not until very late in the day, consulted their own legal representative about it.  That gives us cause for some concern.  The matter was not even raised with the Tribunal that day.  It was the following morning when the Tribunal had re-assembled for the purpose of hearing two further Appeals that the matter was raised with them.  Mr Killin went to see the Chairman and we have an Affidavit from him setting out what occurred.  It is right to say that Mr Killin says frankly that he was not aware that the member was, or appeared to be asleep, during the proceedings.  

	We have an Affidavit from the Solicitor for the Respondent to the same effect and again it surprises us that if any cause was given for complaint, that it was not noticed at once by the advocates who were appearing in the proceedings and who would have been expected to be giving the closest attention to the members whom they were addressing.  Be that as it may Mr Killin then saw the Chairman of the Tribunal and we have the Chairman's comments very helpfully set out in writing before us.

	According to her, following the announcement of the unanimous decision of the Tribunal she indicated "that our reasons would be reserved".  And so they were.  "On the morning of the 8 December upon my arrival at the offices of the Tribunal I was told that Mr Killin wished to see me.  Mr Walton of course was not present as the case in which he had been involved had been concluded."  That again, in our view is a very unfortunate feature of this case.  If these complaints are to be made they should be made in conjunction with and with the knowledge of the opposing party.  At all events the Chairman saw Mr Killin.  He stated what his instructions were.  "He told me that he himself had not noticed this but that Mr Green who had been sitting at the back of the room during the course of the hearing had, as had Mr Russell who had given evidence on behalf of the Company.  Mr Killin appeared embarrassed by what he said and stated that in the circumstances he felt that the decision the previous day had been unsafe.."
	Well what was the Chairwoman to do?  She did what we feel was right.  She took the matter up with the members who were sitting with her and the member concerned indicated to her that he suffered from an eye condition which caused him pain.  He stated that from time to time in order to alleviate the pain he closed his eyes, which in any event he found to be an aid to concentration.  We found support for that in the Affidavit which has been placed before us by Mr Walton, the Solicitor who appeared on behalf of the Respondent who said that in his experience of having appeared before the member in question, that gentleman does have a habit of closing his eyes for several seconds at a time, and I presume that this is in order to aid concentration.

	So what course did the Chairwoman take?  She says this in her comments:
"..we were of the unanimous view that if indeed the parties were as concerned as was now being alleged, it was strange that nothing had been said over the luncheon adjournment and nothing had been said when the Tribunal rose to consider its decision.  The complaint appeared to have arisen after the Tribunal had announced its unanimous decision."
and later she says:
"We considered carefully whether justice had not been seen to be done.  We were of the unanimous view that since all members of the Tribunal had taken an active part in the proceedings, asking questions and taking notes, any reasonable observer present at the hearing, not being a party or associated with a party, would not have gained the impression that the Tribunal was not paying attention."
	It is clear to us that the Chairwoman took very careful steps and entirely proper steps to investigate what had taken place.  She consulted, as she should have done, with her members and she reached a proper decision about what to do.  Now that decision is impugned and Counsel has cited a number of authorities to us in support of his contention.  He makes it plain at the outset that he does not contend that the member in question was asleep.  He accepts, having heard the Chairwoman's explanation about his condition, that the member was not in fact asleep during any part of these proceedings and this appeal therefore proceeded on that footing at the outset and we wish to make that plain.  But, that of course is not the end of the matter, because Mr Giffin says nevertheless it should be accepted that the parties, that is to say Mr Green and Mr Russell, had at the time and still have a genuine belief that the member had fallen asleep and that that has given rise to a burning sense of grievance which amounts to a feeling of injustice; that justice was not accordingly done nor seen to be done and that this case should be remitted for rehearing by a differently constituted Tribunal.

	Counsel has placed before us these authorities.  First of all WHITEHART & RAYMOND THOMPSON LTD EAT/910/83, an unreported decision of this Tribunal held on 11 September 1984 before Mr Justice Popplewell and members.  That was a case where first of all the Industrial Tribunal reached a majority decision, not a unanimous one and where unfortunately it was undoubtedly the case that one lady member of the Tribunal did doze off once if not twice, so that those two features distinguish that case very clearly from the present.  Giving the judgment in that case Mr Justice Popplewell said:
"It is axiomatic that all members of a tribunal must hear all the evidence and to have a trial in which one member of the tribunal is asleep even for a short part of the time, cannot be categorized as a proper trial.  Justice does not appear to have been done..."
and he accordingly sent the case back for rehearing.  That was a case where a complaint had been made afterwards but where as it turned out, the complaint was perfectly genuine.  It is to be distinguished in our view from the present situation.

	The next case referred to by Counsel is that of R v LANGHAM & LANGHAM [1972] CMLR 457, a criminal case of murder where the complaint was that the Learned Trial Judge had fallen asleep at various parts of the trial.  He was, it was asserted, or appeared to be asleep during part of the trial and thus justice was not seen to be done.  The Court of Appeal Criminal Division presided over by the Lord Chief Justice refused the applications for leave to appeal holding that it was clear from an inspection of the transcript that the Judge was not asleep during the evidence but awake and taking a note.  

	There was a further allegation that he had fallen asleep during Counsel's speeches to the jury.  If that was true it was a matter the Court said which it would certainly deplore but was not a sufficient ground for saying that justice was not seen to be done.  It was very easy said the court to rely on that hallowed phrase in order to raise a complaint over a very wide field but it was necessary to point to some factor on which the doing of justice depended and to show that that factor was not visible to those present in court.  It was not wholly without relevance that none of the experienced Counsel present found it necessary to take steps to awaken the Judge or to acquaint him with the fact that his appearance seemed to be less alert than it should have been.

	The high watermark of Mr Giffin's case is the decision of the Divisional Court in
R v WESTON-SUPER-MARE JUSTICES EX PARTE TAYLOR [1981] CMLR 179 given on 13 November 1980.  This was a case where the Applicant was the Defendant in a summary trial and during the hearing the Applicant's Solicitor formed the opinion that the lady Chairman of the Bench was asleep part of the time.  The Solicitor asked the Bench to retire for awhile.  Then with the Applicant's consent the Solicitor told the Clerk of the Court that he was concerned about what he had seen.  "It might be better if the hearing were to proceed with only two Justices".   The Clerk informed the Justices of what had been said but the Chairman declined to withdraw and the hearing proceeded.

	In granting the application and setting the conviction aside, the application being for a rehearing, the Divisional Court presided over by Lord Justice Donaldson, as he then was, said that it was clear that the opinion formed by the Applicant's Solicitor was genuine.  Nevertheless it seemed to the Divisional Court that the Chairman had not in fact been asleep.  She said it was her custom, well known to many people, to close her eyes and to look down rather than look directly at a witness.  And so Counsel rightly observes that that case would appear to be very close to the facts of the present case.  Indeed Counsel submit that it is on all forms with it. 

	We disagree that it is on all forms with the present case for this reason.  There the apparent falling to sleep of the Chairman was noticed by the Solicitor appearing for the party and, more important, the objection was raised during the hearing and in open Court as we derive from the report but certainly during the hearing and the matter was dealt with there and then.  The present case is very different.  First of all the Solicitor himself did not notice anything that was occurring or any apparent mishap and the matter was not raised during the hearing but only after the decision had been given and the following day.  That seems to us to be a very material distinction.

	Unfortunately it happens in the course of litigation that litigants feel unhappy to the extent of feeling aggrieved, particularly and naturally when they are on the losing side.  We make it plain that we do not question the genuineness of the complaints voiced by Mr Green and Mr Russell in their Affidavits but we do question the strength or depth of their feeling of grievance because we feel that had it been a strong feeling it would have been raised, as it should have been raised, with their advocate at the time.  Either during the 11.20 am adjournment or during the lunch time adjournment or even at the end of the hearing but before the decision was announced, and we do question how deep this apparent feeling of injustice is if it was not raised with their advocate at the time. 

	It is not every sense of grievance that gives the right to appeal however genuine it may be.  Where questions such as "bias" are raised it is open to the parties to raise them even at a late stage as was held by this Tribunal in the case of PETER SIMPER & CO LTD v COOKE [1986] IRLR 19 and at para. 21.  It was held:  
"We think it right to stress the highly unusual facts of this case.  Save in extraordinary circumstances, it cannot be right for a litigant, unhappy with what he believes to be the indications from the Tribunal as to how the case is progressing, to apply, in the middle of the case, for a re-hearing before another Tribunal.  It is, in our view, undesirable that the Tribunal accused of giving the opinion of bias should be asked itself to adjudicate on that matter.  The dissatisfied litigant should ordinarily await the decision and then, if he thinks it appropriate, he should make his dissatisfaction with the conduct of the case by the Tribunal a ground of appeal."
	We see the force of that.  Bias is something which usually can be tested and recorded either by a shorthand note if one is taken, or by notes of evidence, or by the parties' Solicitors being able to speak of it.  It is, submits Counsel for the Respondent a tangible matter, though we rather wonder whether tangible is the correct epithet, but it is not as transient a matter as an allegation of the kind raised in this case which is of a member apparently falling asleep for short periods of time.  In our view if matters such as that are to be raised, transient matters such as a member falling asleep, inattention, matters of that sort, they must be raised at the time and in the course of the proceedings if they are to form the ground of any complaint.  It is not sufficient in our view for parties to await the outcome of the decision - we are not suggesting deliberately awaiting the outcome of a decision to see which way it goes, but to await the outcome of a decision and only at that stage raise questions such as have been raised here.  We cannot believe that such a case exists because otherwise the industry of Mr Giffin would have revealed it and even he, with his very careful industry has not been able to place such a case before us.  

	Accordingly, genuine though these feelings may be, they are not such that in our view render this decision unsafe or unjust or such that we should interfere.  It is right to observe finally that Counsel does raise, though without any enthusiasm, a second matter - another feeling of grievance which his clients raise in their Notice of Appeal.  There is nothing in that ground of appeal and we dismiss it as we do this part of the Appellant's Appeal.