Appeal No.	 EAT/191/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 July 2000

Before
HIS HONOUR JUDGE PETER CLARK
MISS A MACKIE OBE
MR G H WRIGHT MBE

INTIAL CONTRACT SERVICES LTD	APPELLANT

MR C RILEY	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR J MCMULLEN QC
(of Counsel) and
MR D OUDKERK
(of Counsel)
Legal Executive 
Initial Contract Services Ltd
Unit P, Gunnelswood Park
Stevenage
Hertfordshire  SG1 2BH	
For the Respondent	MISS B LANG QC
(of Counsel)
Messrs Whittles
Pearl Assurance House
23 Princess Street
Albert Square
Manchester
M2 4ER	

JUDGE CLARK

1	The position in this case is that the appeal by the employer, Initial against a reserved decision of an Employment Tribunal sitting at Shrewsbury (Chairman D P Thompson) promulgated on 10 December 1998 was permitted to proceed to a full hearing at a preliminary hearing (before a division presided over by HHJ Wilson) held on 12 July 1999.

2	Today, the parties are present.  Initial are represented by Mr McMullen QC and Mr Oudkerk, the Applicant, or more correctly his Personal Representatives, he has sadly died, by Ms Beverley Lang QC.

3	We are told that agreement has been reached for the disposal of the appeal.  The order we are asked to make is that the appeal be allowed and the case remitted to a fresh Employment Tribunal for rehearing, with this rider.  Mr Riley having died, and this being a test case for some 8/9 Applicant’s, one of the other Applicants will be substituted for Mr Riley deceased at the rehearing.

4	We are reminded of the Employment Appeal Tribunal Practice Direction paragraph 13, based on the judgment of Mummery J in Sainsbury –v- Moger (1994) ICR 800, that we shall not set aside a reasoned decision of the Employment Tribunal without ourselves being satisfied that it is right to do so.

5	This case was one of unfair dismissal.  Initial sought to alter the Applicant’s and his colleagues Terms & Conditions of employment, they said for sound business reasons, the Applicant’s objected and in due course were dismissed on notice with an offer of employment on the new terms.  Initial relied on some other substantial reason for dismissal and contended that they acted reasonably under Section 98(4) of the Employment Rights Act.  The Employment Tribunal rejected that case and found the dismissal to be unfair.

6	In this appeal Mr McMullen has raised both procedural and substantive grounds of complaint.  We need not be concerned with the substantive ground, instead we are satisfied that the appeal ought to be allowed on the grounds that, at a meeting with the parties representatives only on the third day of the hearing, following a gap of more than two months since the first two days of hearing, the Chairman sitting with his Lay members gave an indication that the Employment Tribunals views had “crystallised” since the earlier hearings; they were singularly unimpressed by the evidence given on behalf of Initial and had reached the point of considering whether or not the Applicant had a duty to mitigate his loss before dismissal.  Those were the views of all three Employment Tribunal members.

7	Mr Oudkerk, then representing Initial, was, in the words of the Chairman “genuinely outraged” by these indications and made clear Initials intention to appeal to the Employment Appeal Tribunal on the grounds of a breach of natural justice.

8	The above version of events, set out in an affidavit sworn by Initial’s solicitor, Mr Thomas, is not challenged by the Chairman in his letter commenting on that affidavit.

9	The question for us, on those facts, is whether it can be properly be said that a reasonable observer present at the hearing, not being a party or connected with the parties, would have gained an impression of bias against Initial by those remarks.  Peter Simper –v- Cooke (1986) IRLR 19.

10	We bear in mind that it is enough for a party to show an appearance of bias; actual bias is not necessary.  R –v- Gough (1993) AC 646.

11	We have had the advantage of reading in advance of this morning’s hearing, detailed skeleton arguments prepared by very experienced Counsel, and have been provided with a bundle of the relevant authorities.  In our view, consistent with the Employment Appeal Tribunal decisions in  Ellis –v- MOD (1985) ICR 257 and Culina Logistics –v- Welch EAT 467/96.  15 May. 1996.  Unreported).  We are quite satisfied that the reasonable observer, on hearing those remarks would, to adapt one of the deathless phrases of the 20th Century, have thought to himself of Initial “they did not think its all over; it is now.”  In short, the appearance of bias complaint is made out.

12	In these circumstances it is unnecessary for us to comment further on the original Employment Tribunal decision.  It must be set aside and the case remitted for rehearing before a fresh Employment Tribunal, one of the other Applicants to be substituted for the late Mr Riley.  This appeal is allowed.