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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Healey v. John Adams & Sons Ltd [1999] UKEAT 25_99_1612 (16 December 1999) URL: http://www.bailii.org/uk/cases/UKEAT/1999/25_99_1612.html Cite as: [1999] UKEAT 25_99_1612

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APPEARANCES

 

For the Appellant	Mr J B Healey (appearing in person)
For the Respondents	Respondents neither present nor represented


 


HIS HONOUR JUDGE WILKIE QC

1. This is an appeal by Mr Healey against the decision of the Employment Tribunal held at Liverpool on 29^th July, 2^nd September and 7^th October 1998. That Tribunal, by a unanimous decision, decided that the Applicant, Mr Healey, had not been unfairly dismissed for Health and Safety reasons. The decision was a reserved one and was sent to the parties on the 5^th November 1998. The Employment Tribunal before whom Mr Healey's application was heard constituted as the Chairman, Mr K E Robinson and as members a Mr B E Robinson and Mr H Higgins.
2. Mr Healey appeals that decision on one ground only. During the hearing Mr Healy did not recognise the Chairman, Mr Robinson. Following the completion of the rehearing he contacted a firm of solicitors, Jackson & Canter on 28^th October 1998 in connection with a remedies hearing in a previous successful claim that he had made against another employer. During a conversation with a Mr Cunliffe of that firm, Mr Healey realised for the first time that Mr Robinson, the Chairman of the Tribunal, was the same person who, in his capacity as a partner in that firm of solicitors, had advised him in connection with the Exel case. Mr Healey informed Mr Cunliffe of that fact. Mr Cunliffe pointed out to Mr Healey that, of course, Mr Robinson could not advise Mr Healey in respect of that other case but that would not prevent Mr Cunliffe from acting. However, that initial view expressed to Mr Healey by Mr Cunliffe was subsequently reversed. On the 2^nd November Mr Cunliffe telephoned Mr Healey to say that he had spoken to Mr Robinson, and had been advised that the firm should not act for Mr Healy in connection with that other case.
3. Therefore the position is that by the 2^nd November 1998 Mr Robinson had been made aware of the fact that in his capacity as a partner in that firm of solicitors he had had dealings with Mr Healy in respect of a previous employment matter. It is on this factual basis, which is uncontested, that Mr Healey says that Mr Robinson's previous involvement with him compromised either his impartiality or the appearance of his impartiality in dealing with the current case as Chairman. Mr Healey confirmed the facts to which we have referred in an Affidavit. That Affidavit was presented to Mr Robinson for his comment. Mr Robinson, by a letter dated 23^rd February 1999, accepted that Mr Healey did consult his firm in respect of that earlier case. He confirms that Mr Healey had seen a Mr Saunders at that firm. He states that he cannot himself recall seeing Mr Healey but that he may have done. He did not recognise Mr Healey during the Tribunal hearing but he says as follows;

"if I had remembered at the Tribunal that I had seen him or if I had known that my firm had acted for him, I would not have allowed myself to be Chairman of the Tribunal".

4. It seems to us that that was a perfectly correct position for Mr Robinson to take. On any view, that level of contact in respect of an analogous legal matter between one of the parties to the litigation and the person chairing the Tribunal, did give the appearance of want of impartiality regardless of whether, in fact there was any such want of impartiality. Mr Robinson and Mr Healey came to realise this prior connection at a stage when the decision was still under consideration and had not yet been promulgated. That means that the apparent want of impartiality arose at a time when the Tribunal had not concluded its active part in the litigation. Accordingly at a time when the litigation was still proceeding and therefore at a time when it was necessary in the interests of Justice for the appearance of impartiality still to be maintained. It therefore seems to us, however unfortunate it may be, that the attitude which Mr Robinson indicated he would have had at an earlier stage is the attitude which ought to have continued right through until promulgation. Therefore, even at that late stage, Mr Robinson should have indicated the position publicly and should have withdrawn as the Chairman of the Tribunal. It follows that this appeal must succeed and the matter must be remitted to an entirely different constituted Tribunal for Mr Healey's application for unfair dismissal to be heard afresh by a Tribunal where there is no appearance of want of impartiality.