Appeal No. EAT/418/90

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 June 1992
	Judgment delivered on 5 November 1992

	Before

	HIS HONOUR JUDGE N HAGUE QC

	MR J H GALBRAITH CB

	MR S M SPRINGER MBE

SOUTH MANCHESTER HEALTH AUTHORITY	APPELLANTS

MR M J O'MAHONEY	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	Mr T J Horlock
(of Counsel)
Messrs Jack Thornley
Solicitors
Deansgate Court
244 Deansgate
MANCHESTER M3 4BQ

For the Respondent	Mr M Westgate
(of Counsel)
C Cox
Regional Solicitor
Royal College of Nursing
3 Lisbon Square
LEEDS LS1 4LY

	HIS HONOUR JUDGE N HAGUE QC:     This is an appeal against a decision of an Industrial Tribunal sitting at Manchester entered on the Register on 1st June 1990.  By that Decision, the Tribunal held that the Respondent Mr O'Mahoney had been unfairly dismissed by the Appellant, the South Manchester Health Authority ("the Authority").

	Mr O'Mahoney, who had been employed by the Authority in various training capacities for some years previously, was employed by the Authority as a student midwife from 3rd July 1989 on a course based at Wythenshawe Hospital starting on that date.  Firstly for family reasons (his wife's illness and then the death of his sister) and then as a result of a period of illness, Mr O'Mahoney's attendance at the course was sporadic.  In the period of 14 weeks up to 4th October, he had attended only a total of 3 weeks.  The course was intensive, and contained a "strong foundation element".  During Mr O'Mahoney's illness, Miss Helen Strong, the Senior Midwife Teacher, became concerned that he would not be able to catch up with the course when he returned from illness.  She wrote to him on 17th August 1989, but she received no reply and so telephoned him on 6th September 1989.  He then indicated that he hoped to return soon, and agreed to see the Authority's Occupational Health Department.  An appointment was made, but on 17th September 1989 Mr O'Mahoney wrote to the Department saying he could not attend the appointment but would do so when he was better.  No copy of that letter reached Miss Strong.

	After consulting with Mr Wilding, the Personnel Manager at Wythenshawe Hospital, Miss Strong wrote to Mr O'Mahoney on 4th October 1989.  In that letter, after summarising the position and expressing her regret that he had not contacted her and her concern, Miss Strong wrote -
"I regret, therefore, to advise you that unless you return to work and have no further periods of sickness or absence from 16th October 1989 I shall have to discontinue your training from that date.  I would reconsider you for a place when one becomes available in a future intake".
There then followed discussions with Mr O'Mahoney's union, the Royal College of Nursing, to which we will refer later.

	However, Mr O'Mahoney did not return to the course on 16th October 1989.  On that date, Miss Strong wrote again to him stating that she felt it was now impossible for him to achieve a successful completion of training, and that she had no alternative but to discontinue his training forthwith.  It was accepted that the letter dismissed Mr O'Mahoney from his employment.  Miss Strong in the letter drew his attention to an internal right of appeal.  He exercised that right, but his appeal was dismissed.

	The Tribunal accepted (in paragraph 5 of their Reasons) that Mr O'Mahoney's persistent absence from the course meant that he would not be able to catch up with the training provided by the course, and that this was a "substantial reason" for his dismissal within S.57(1)(b) of the Employment Protection (Consolidation) Act 1978.  The Tribunal nevertheless found that the dismissal was unfair, saying (in paragraph 6 of their Reasons) this:
"... We accept that Miss Strong was faced with an unusual situation and we also accept that she was concerned for the applicant's welfare.  We consider however that when it became clear that the applicant had not attended the Occupational Health Unit, a decision was made by the respondent to dismiss him by the 16 October.  We consider that before this decision was taken, the respondent should have made further efforts to interview the applicant and to ascertain the full nature of his illness and whether he realised how his absences were affecting his ability to comply with the training standards of the course and the consequences.  We do not consider that a reasonable employer would have taken the decision to dismiss the applicant without first interviewing him and accordingly we find the dismissal unfair."

	Mr Horlock on behalf of the Authority argued that this finding was clearly flawed and erroneous in law, because the Tribunal had clearly taken into account factors that must have been irrelevant to the Authority's decision.  Given that by 16th October 1989 Mr O'Mahoney's absences made it impossible for him to catch up (as the Tribunal found), his dismissal from the course had become inevitable and the two specific matters mentioned by the Tribunal, i.e. the nature of his illness and whether he realised how his absences were affecting his position, were irrelevant to and could not affect the Authority's decision.  We can see no answer to Mr Horlock's argument on this point.  Although as a general rule and in a normal employment situation it is good industrial practice for an employer to consult an employee as to matters of this kind and a failure to do so may render the employee's dismissal unfair (see Williamson v. Alpen (UK) Ltd [1978] ICR 104, which Mr Westgate on behalf of Mr O'Mahoney drew to our attention), consultation on these matters could have served no purpose having regard to the special nature of the employment in this case.  The Tribunal's decision must be set aside for this reason.

	Mr Horlock further submitted that the Tribunal's findings in paragraph 6 of their reasons failed to take into account the extensive discussions that took place between the Authority and Mr O'Mahoney's union after 4th October 1989 as regards alternatives to his dismissal.  As the Tribunal found in paragraph 4(5) of their Reasons, these included special tuition for Mr O'Mahoney, an extension of the date for return to work beyond 16th October, finding alternative employment by the Authority and seconding Mr O'Mahoney to another midwifery course in another area.   All these alternatives were considered by Miss Strong, but rejected by her for various reasons.  The Tribunal made no criticism of her in this respect, and there was no suggestion that any of the various options raised by the union should have been adopted or that any of her responses to those options was unreasonable.  Mr Horlock said that the Authority were entitled to assume that the union had put forward all the possible options, so that there was no purpose in any further interview with Mr O'Mahoney himself.  He said that Miss Strong's responses were such that there were no grounds upon which the Tribunal could properly have come to the conclusion that the dismissal was unfair under S.57(3) of the Employment Protection (Consolidation) Act 1978, that their decision was thus perverse, and that this Appeal Tribunal should substitute a finding that the dismissal was fair.

	We feel the force of these submission, but we cannot go as far as Mr Horlock would wish us to.  We agree with Mr Westgate that it would be possible for an Industrial Tribunal properly to conclude that personal consultation might have thrown up new matters not discussed with the union or thrown a different light on the matters which we discussed, and consequently hold that the absence of personal consultation rendered the decision unfair.

	We do not therefore substitute a finding that the dismissal was fair, but remit the case to a differently constituted Tribunal to reconsider the matter.  In fact, by the date of the hearing before the Industrial Tribunal, Mr O'Mahoney had been offered a place and had commenced a later new course.  The Tribunal therefore ordered his re-engagement by the Authority on different financial and other terms.  In the circumstances, we would hope that the matter can be satisfactorily resolved by the parties by agreement.

	This conclusion makes it unnecessary for us to deal with a further quite separate point which was raised before us, but as it was fully argued we make some brief observations on it.	The point arose in this way.  The Chairman, who acts as a part-time chairman, is the senior partner in a firm of Solicitors in Manchester.  The Authority was represented at the hearing by Miss Susan Routledge, a member of the firm of Messrs Jack Thornley, solicitors of Manchester.  Some years ago the Chairman had been the defendant in a defamation action brought by a Mr Parsons arising out of remarks made by him at a Law Society meeting, at which Mr Jack Thornley was present.  Mr Thornley wrote a letter to the Legal Action Bulletin concerning those remarks, which had the effect of drawing them to Mr Parsons' attention.  Mr Thornley make a statement to Mr Parsons' solicitors, and was a potential witness in the action.   In fact the action was settled on the payment of an undisclosed sum in respect of damages and costs.  At the hearing, the Chairman did not reveal the involvement of Mr Thornley in the defamation action, and it was a matter unknown to Miss Routledge.

	In those circumstances, Mr Horlock submitted that there was a reasonable likelihood of apparent bias on the part of the Chairman, who should not therefore have continued to sit or at any rate have made the position known to Miss Routledge and the Authority.  Mr Horlock made it clear that he did not suggest any actual bias and we accept the Chairman's subsequent statement that so far as he was concerned that matter was over and forgotten about.  However, the point is that justice must not only be done but must be manifestly seen to be done; this is settled by numerous decided cases which are helpfully summarised in University College of Swansea v. Cornelius [1988] ICR 735.   Both counsel accepted, and we agree, that the relevant test was correctly set out by Wood J in Halford v. Sharples [1992] ICR 146 at p.171 as follows:
"There must be no appearance of bias.  The test is in question of mixed fact and law; would a reasonable and disinterested 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?"
Mr Westgate submitted that there was a clear distinction between the appearance of bias against a party's advocate rather than against a party himself.  We consider that this must be so, and that a challenge based on the appearance of bias against a party's advocate is much harder to sustain, but it is not impossible: see the Canadian case of R. v. Magistrate Taylor, ex parte Rudd (1965) 50 D.L.R. (2nd) 444.

	It has been suggested (not by Mr Westgate) that the suggestion of the appearance of bias in this case is ludicrous, being based merely on a dispute between professional practitioners of a kind which occurs every day.  We do not accept that, for we cannot agree that involvement as the personal defendant in a defamation action can be equated with a normal disagreement between solicitors.  Nevertheless, we are far from saying that the suggestion of the appearance of bias in this case is well-founded.  In view of our decision on the substantive issue, we do not think it is necessary to consider this matter any further, and we express no opinion on it.

	As mentioned above, we allow the appeal and remit the case to be re-heard by a differently constituted Tribunal.