Appeal No.	 EAT/888/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 January 2000

Before
HIS HONOUR JUDGE COLIN SMITH QC
MR L D COWAN
MR S M SPRINGER MBE

ST HELENS & KNOWSLEY HOSPITALS NHS TRUST 	APPELLANTS

MR J McCULLY 	RESPONDENT

Transcript of Proceedings

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR S WILSON
(OF COUNSEL)
MESSRS HILL DICKINSON
SOLICITORS
PEARL ASSURANCE HOUSE
DERBY SQUARE
LIVERPOOL
L2 9XL 

		HIS HONOUR JUDGE SMITH:

1.	We will give a short judgment in this application for leave to proceed to a full hearing of an appeal.  

2.	It is an application by the Trust, the employers, for leave to proceed to a full hearing of their appeal against the decision of the Employment Tribunal held at Liverpool on 11th May 1999, of which Extended Reasons were sent to the parties of 16th June 1999, whereby it was the unanimous decision of the Employment Tribunal that the applicant before them, Mr McCully, who had been employed as a porter by the trust, was unfairly dismissed.

3.	We need not recite the facts in detail, as we have already concluded that there is an arguable point of law as to whether the Employment Tribunal’s approach to the question of inconsistent treatment was correct in all respects.  We say nothing further about the strength of that argument, save to say that we accept that there is an arguable point by way of appeal in relation to that point.  We have already decided this should go through to a full hearing i.e. the grounds of appeal that are contained in the Notice of Appeal at paragraph 6.1, 6.2 and 6.3, as amplified in the skeleton argument which has been helpfully placed before us by Mr Wilson, on behalf of the Trust.  

4.	Matters of disparity are always difficult matters and the usual rule is that an employer is justified in looking at the individual circumstances of the particular employee except in rather special circumstances.  There is a fair amount of authority on this issue and for those reasons we believe that it is arguable that the Employment Tribunal may have taken an erroneous approach in relation to that aspect of the matter.  However, there is a separate ground relied on and that is at paragraph 6(4) of the Notice of Appeal, as distilled helpfully in the skeleton argument, and matters are relied upon which, it is submitted, lead to an arguable ground of appeal on the basis of apparent bias.  

5.	The way the matter is pleaded in the skeleton argument is, first of all, that the Chairman at some point during the hearing made comments to the effect he could not see what medical evidence there could be to justify the difference in treatment between the Respondent and Miss Hughes.  In our judgment, that comment was a proper comment, and one which, as the Chairman of an Employment Tribunal, he was fully entitled to make.  Although, of course, the proceedings before an Employment Tribunal are adversarial in nature, nevertheless, it is still  appropriate, in our judgment, for Chairmen of Employment Tribunals to intervene and make comments such as that comment in order to attempt to expedite the matters and bring the parties up against the reality of the issues.   There is, in our judgment, nothing in that.

6.	Then at 11(2) in the skeleton argument and 11(4) there is reliance upon, first of all, the Chairman’s repeated attempts to encourage the parties to settle, and at 11(4), the statement by one of the lay members communicated through the Chairman to the effect that he was surprised that the case had not settled.  Here again, in our judgment, it is proper for both the Chairman and indeed, the experienced lay members of Employment Tribunals to do everything they reasonably can to get parties to compose and settle their differences.  That is very much the modern trend of all civil litigation, and particularly in the light of the Woolf reforms and changes to the civil law and it is appropriate that a similar approach should be taken to employment tribunal cases and such an approach is taken by tribunals all over the country, and so, in our judgment, there is nothing in that.  That leaves one matter and that is this; that after all the evidence has been heard, and after the submissions had been made, on what was a narrow matter for a decision relating to this question of disparity, the Chairman accepts that he made a remark that he had already made up his mind on the issues having heard the evidence and the submissions made, and that was immediately before the Tribunal went away and collectively made their decision.  

7.	In our judgment, here again, as a matter of reality and commonsense with regard to litigation of this kind, it is artificial to complain of that as being an example of potential bias.  We believe that the disinterested observer at the back of the tribunal, having heard everything that had taken place, would simply take the view that the Chairman was giving vent to his own robust opinion at that late stage, after all the evidence had been heard, and after the submissions had been made and, in our judgment the reality is that in a case such as this it is not inappropriate for that sort of comment to be passed.  There is nothing in our judgment that gives rise to any arguable ground of appeal in relation to potential bias.  The real burden of this appeal is that the Employment Tribunal did not take an appropriate approach with regard to the issue of disparity and that ground can be fully argued on the appeal.   We consider that the additional separate ground on the basis of an allegation of potential bias simply is not strong enough to justify a full hearing, and, accordingly, we do not allow that ground to proceed to a full hearing for the reasons we have given.