Appeal No. EAT/270/91

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

		At the Tribunal
		On 24 July 1991

	Before

	THE HONOURABLE MR JUSTICE WOOD MC (P)

	MR T S BATHO

	MR K GRAHAM CBE

MR P DAVIES	APPELLANT

STATION GARAGE	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MS E MORAN
(Representative)
Free Representation Unit
13 Gray's Inn Square
LONDON
WC1R 5JP

For the Respondents	MR M JAMES
(Company Director)
Station Garage
Station Approach
Shepperton
Middlesex
TW17 8AN

	MR JUSTICE WOOD (PRESIDENT):  By an Originating Application which was dated the 16th January 1991, Mr Davies claimed that he had been unfairly dismissed by his employers, who were operating the business of a garage at the Station Approach, Shepperton, Middlesex.  

	The position was that he was a mechanic and that during maintenance on a vehicle, he had turned on the ignition;  the brake was off, and the result was that the vehicle bumped into his work-bench and did some damage to the bumper and to the indicator light.  The view taken by his employers was that this negligent carelessness could have cause injury or death to a person passing in the vicinity, and they took an extremely serious view of it.  That view was shared by the Industrial Tribunal, and it found, accepting the evidence given on behalf of the employers, that the matter was so serious that it merited dismissal.

	However, it was clear, that this Management, had had no experience of previous problems with an employee, and that in many ways is a happy thing to know, because industrial relations were clearly good.  But it also meant that they were not familiar with the detail of the statutory provisions and had no particular disciplinary procedure nor had any experience in dealing with disciplinary matters and the general principles involved.  

	It followed, as was admitted, quite frankly by a Director Mr James, that there was a gap in the procedure involved and there was therefore, inevitably, a finding of unfair dismissal.  The Tribunal went on to consider questions of contribution;  they might also have considered whether it was just and equitable to make any award at all;  they decided that the award should be reduced by 75%.  That was essentially a matter within their broad discretion, others reading these facts might not have been surprised had there been no award at all.

	The Applicant, Mr Davies, however, Appeals to this Court and he asks us to set aside the whole Decision, not only the finding of unfair dismissal, but also the finding on compensation, and Miss Moran, who appeared for him on this occasion, argues that there were two bases upon which she asks that this should be;  the first one is an allegation of bias;  and the second is one of procedural irregularity. 

	The procedural irregularity is based upon a comment made by the learned Chairman during final submissions that the argument being put forward that the reason for dismissal was  not the negligent behaviour, but the refusal to pay for the damage, had not been mentioned in the Originating Application.  That is true, it was a comment based on fact, it was suggested that this stopped Counsel appearing for the Applicant before the Industrial Tribunal and that he felt that they were debarring him from that submission.  We do not think that that could possibly have been the case because during the evidence, and we have very full and careful Notes of Evidence, that issue was being aired and indeed one witness had been recalled because the matter had not been properly put to that witness.  We think there is nothing in that point whatsoever.

	However, the main point taken is one of bias.  Now it is important to remember that bias in its legal connotation is not necessarily, although it can be, what is sometimes imagined by the layman to be bias.  It is a simple formula whereby, on an objective test a bystander who knew the issues involved but was not involved with either party would feel that there was an element of unfairness, lack of the rules of natural justice, in what was occurring before the Court or Tribunal.  A passage in the Judgment of this Court, presided over by Mr Justice Peter Gibson in Peter Simper & Co Ltd v. Cooke [1984] AC 349, and I turn to page 5 at "F", is a succinct recital of the principles involved.
"We take it to be axiomatic that justice before a tribunal must not only be done, but also to be manifestly seen to be done.  That applies as much in our view to a tribunal such as the Industrial Tribunal as it does to a formal court of law.  Not only must there be no bias on the part of the tribunal but also the tribunal must not give the appearance of bias.  Where there is an allegation of bias based on the conduct of one or more members of the tribunal at a hearing, the test is, in our view, an objective one:  would the reasonable observer present at the hearing, not being a party, or associated with a party, to the proceedings but knowing the issues reasonably gain the impression of bias."

Then we would stress the following sentence:
"That impression may be given by the appearance of a closed mind against a party on a matter which calls for decision by the tribunal when that party has not yet presented all his evidence relevant to the point, or had the opportunity of addressing the tribunal on that evidence."

	What happened in this case, without any fault on the part of the Respondents whatsover, is that there had been an error within the administration of the Industrial Tribunal so that, when the Tribunal assembled they all three were under the impression that the Hearing about to be conducted was a Pre-Hearing Assessment, that is a Preliminary Hearing in which the Members of the Tribunal read through all the documentation;  form their views about the success, or likely success of the proceedings, and in some cases have the power to give what is called a "costs warning", in other words to warn an applicant that they view the strength of the application to be so weak that it may very well, that is likely to, be unsuccessful, and therefore may very well carry an order for costs.

	On the present occasion, the Respondents' garage, were represented by a Director, and Mr Davies was represented by Counsel from the Free Representation Unit.

	The learned Chairman came into the Tribunal, and there seems no doubt from the notes taken at the time and indeed from the comment of the learned Chairman since the Hearing, that she stated that the Tribunal was hearing a Pre-Hearing Assessment and explained what that was;  she announced that the Tribunal had read the papers;  that the Tribunal had concluded that the accident which led to the Applicant's dismissal was serious;  that the accident could have caused serious injury or death;  that the seriousness of the accident justified dismissal, but as a consequence of the procedural elements they were anxious that perhaps the procedures were not correctly carried out and the Tribunal found the dismissal could thereby remain, could be judged to be an unfair dismissal.

	Now those matters announced dealt with a number of issues that were live issues on a Full Hearing, namely how serious was the accident?  And was there really a serious liability of serious injury or death?  And whether the accident was so serious that it would justify dismissal?

	Counsel for the Applicant although he noted with surprise in his note that it was announced to be a pre-hearing assessment,  did not correct the Tribunal, and after that statement had been made he commented on his notes "What a start!!" but did not raise any objection to the matter then being heard fully by this Tribunal.  Clearly, there could have been objection, the learned Chairman with the other Members could have considered the matter and it seems likely that she would have ordered the matter to be heard before a different tribunal.  However, he raised no objection, so the matter proceeded in the way in which we indicated.

	The learned Chairman has commented in her letter to us that she realised that the FRU representative was not experienced, and had therefore been careful to explain the reasons behind a pre-hearing assessment.  However, how would an observer, to use the words of Mr Justice Peter Gibson, how would this have appeared to a reasonable observer, present at the hearing not being a party or associated to a party of the proceeding but knowing the issues?  would he or she have gained the impression that there was a closed mind on an issue before the evidence relevant to the point was called and there had been an opportunity of addressing the tribunal on that evidence?   Posed in that way, it seems to us there can only be one answer;  due to unfortunate errors no one could have thought otherwise than that the Tribunal had reached a concluded view on issues which were going to be "live issues" in a full hearing, before the evidence was presented and before there had been an opportunity of addressing the Tribunal.  

	We therefore feel that balancing the need for justice to be seen against the tests and the objective tests which we have set out, balancing that between the distinct impression here that no injustice whatsoever has in fact been done, we nevertheless feel that it is of vital importance that justice should be seen to be done.  It is fair comment that if an error has been made and concluded views have been expressed, it seems to us most inadvisable that the Tribunal, having expressed those concluding views should then hear the matter in a full hearing, unless both sides have been asked about it;  both sides are represented;  and both sides consented, in which case of course there is no objection whatsoever because there is no appearance of an injustice of any kind.

	On balance in the present case therefore, but with some reluctance, we reach the conclusion that this Appeal must be allowed and that this matter should be re-heard before a different Tribunal.  We have sympathy for Mr James and the Respondents, it is no fault of his whatsoever.  I am afraid that the principles are of vital importance to the administration of justice in the country and therefore that is the Order which we make.  Appeal allowed, the matter remitted to be heard before a different tribunal.