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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Gunaratnarajah v. Stephen Fidler & Co [1999] UKEAT 417_99_0111 (1 November 1999) URL: http://www.bailii.org/uk/cases/UKEAT/1999/417_99_0111.html Cite as: [1999] UKEAT 417_99_111, [1999] UKEAT 417_99_0111

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APPEARANCES

 

For the Appellant	Mr P O'Brien (Representative) 1 Stonecross St Albans AL1 4AA


 


JUDGE WILSON:

1. This has been the preliminary hearing of the proposed appeal by the appellant against the unanimous decision of the Employment Tribunal that, while the appellant had been unfairly dismissed, he was not entitled to any compensation in respect of the dismissal. The other matter of complaint, namely discrimination on the grounds of race, was dismissed on withdrawal by the appellant.
2. Mr O'Brien on behalf of the appellant today, puts forward several grounds of appeal. The first concerns the appearance of bias by reason of what the Chairman had said before the Tribunal rose at the end of the first day. Having reached a stage where it was clear that the matter was not going to be completed that day, the Chairman on behalf of the Tribunal made observations which are commonly made in appropriate cases to the effect that, if certain evidence was accepted once all evidence had been heard, it might be a waste of money to come back the second day. The Tribunal had performed a preliminary review which did not necessarily mean that that was the final view which would be reached but preliminary views were often borne out. It is suggested that the expression of such a preliminary view is an indication of a 'mind made up'.
3. The Chairman as already noted went on to say, in the context of costs, having discovered that each side was paying for themselves, that there was a likelihood of a waste of money involved in coming back the next day, and invited the parties to retire to see whether they could settle the matter.
4. Mr O'Brien suggested that the Chairman's further words and invitation, in some way, made the appearance of bias worse. We consider that the effect of the remark is the reverse. If there had been any appearance of bias by the first remark, it is cancelled out by the other. The invitation to settle is a clear indication to the respondent to offer the appellant some money, which is the reverse of what the first part of the remarks had indicated.
5. It is then suggested that there was some use of the phrase 'porkey pies' by the Chairman. The Chairman in his letter in answer to the appellant's affidavit does not exclude the possibility that he used that expression but we notice that he says "it is not one in his usual vocabulary", which does not surprise us because it can hardly be described as judicial. Certainly if it had been used, it would have been so surprising that the lay members would have remembered. Both of them say they have no recollection of its use. When all those matters are taken together they do not in our view, found an appearance of appeal of bias to necessitate this matter returning to the Tribunal.
6. The other grounds concern the gross misconduct for which the appellant was censured by his own professional body. That related to things which he said in the course of his private prosecution for assault of another employee of the respondent company in the magistrates court. The accused in those proceedings was represented by a member of the bar called Trembath. In the course of their decision, the Tribunal stated that it accepted the evidence of Mr Trembath as being the only dispassionate impartial evidence in the case before them. There is some suggestion that that is a remarkable conclusion for them to have reached about Mr Trembath. The fact remains that, so far as the Employment Tribunal proceedings is concerned, he and he alone had no axe to grind. Of course in the magistrates proceedings he had been there to defend the accused but in these matters he had no reason other than to be completely objective. We note also that it seems that his evidence was treated as objective by the professional body who had censured the applicant. Mr O'Brien submits that to make accusations against witnesses in prosecution proceedings is perfectly proper and admissible and of course that is so. No doubt they are often made on behalf of defendants without any basis in fact at all. But here one professional man was making scandalous accusations against other professional people for which there is a proper way procedure, if there is anything to substantiate those scandalous allegations. Not only were they made on the 11 June but they were repeated on the 24 June and one of those concerned, Mr Rudwick complained, as a result of which the firms disciplinary procedure was activated and the respondents dismissed the appellant for gross misconduct. This following a complete breakdown of trust, which was exemplified by the things that he had said about the firm, and its employees in the magistrates court proceedings.
7. To deal with the appellant in that way in our view does not offend against the privilege given by the law to which Mr O'Brien has referred and we can see no reasonable prospect of this matter succeeding if it proceeds to full argument on any of the grounds set forward. We therefore dismiss the appeal at this stage.