Appeal No.	EAT/0705/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 November 2001

Before
THE HONOURABLE MR JUSTICE MAURICE KAY
MS G MILLS
MR J C SHRIGLEY

MR ERHAYIEM	APPELLANT

(1) STOCKPORT AND HIGH PEAK TEC LTD (2) MRS H SMITH	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR D McCARTHY
(Of Counsel)
Appearing under the 
Employment Law Appeal
Advice Scheme	

MR JUSTICE MAURICE KAY
1.	We propose to give leave to this matter to proceed to a full hearing and we shall explain briefly why. The paper application on behalf of the Appellant did not appeal to us at all. It was essentially an attempt to reargue the case and to go behind factual findings and it seemed, and seems to us, that to that extent it has no prospect of success. However, this morning the Appellant has had the good fortune to have the services of Mr McCarthy through the ELAAS scheme and Mr McCarthy has correctly not sought to pursue the part of the case which seems to us to be without merit; instead he has confined his submissions and seeks to confine the appeal to two points. 

2.	One of them is a new point not foreshadowed by the Notice of Appeal. The reason for this is that the facts which give rise to it were not known to the Appellant at the time of the Notice of Appeal. This first ground is essentially an allegation of bias, or to put it more correctly, an appearance of bias. It is not suggested that there is anything on the face of the decision or in the conduct of the proceedings suggesting an actual bias but Mr McCarthy submits there are circumstances giving rise to an appearance of bias such that a reasonable man would conclude that the Appellant could not have had the prospect of a fair hearing at the Employment Tribunal. 

3.	The circumstances which give rise to that serious suggestion are these. The Respondents were represented at the hearing by Mr J Cook, a solicitor. Mr Cooke, it appears is a partner in the firm of Sinclair Abson Smith, Solicitors, of Stockport. One of his more senior partners is a Mr Whittaker. It is apparent from a perusal of the pre-hearing correspondence that it was Mr Whittaker who was acting for the Respondents in these proceedings, save that as we have noted, it was Mr Cook who appeared as the advocate at the two day hearing. Mr Whittaker it seems sits as a Deputy Chairman of an Employment Tribunal. The Appellant believes that he sits in Manchester which was the venue of the present case. The point which Mr McCarthy seeks to advance is that there is an appearance of bias if a solicitor, who sits as a Deputy Chairman in a particular place, is having his practice’s cases dealt with by an Employment Tribunal sitting in the same place. 

4.	At the moment because this ground is of recent origin, the facts are not fully known. What we have said about the involvement of Mr Whittaker and Mr Cook and the status of Mr Whittaker as a Deputy Chairman seems to be borne out by the documents, but what we do not know is where Mr Whittaker sits. Mr McCarthy frankly concedes that if he sits other than in Manchester, say for example in Liverpool or Sheffield, then there would be nothing in this point at all. It is a pity that it has taken until now for the point to be crystallised. However, it seems to us that it is a matter which calls for at least an investigation and so we shall allow the case to go forward by reference to it. Because it involves an allegation of bias the provisions of the practice direction as to the filing of an affidavit by the Appellant will apply in due course. There will be a response which will reveal precisely where Mr Whittaker does sit. If it transpires that all his sitting is elsewhere and not in Manchester then, as Mr McCarthy concedes, this point will fall by the wayside. 

5.	The second point which Mr McCarthy seeks to raise as a ground of appeal relates to what was referred to in the hearing at the Employment Tribunal as the forgery of documents. One of the Appellant’s complaints was that he had not been provided with adequate feedback and that the attitude of the Respondents staff towards him changed. There were before the Tribunal, and there are before us, copy documents which it is common ground showed the Appellant’s signature which had been written in each case by somebody-else. These documents, we are told, relate to feedback and monitoring and purport to record feedback or monitoring. The Employment Tribunal dealt with this aspect of the case in paragraph 4 of the extended reasons. The relevant passage reads as follows

“The Tribunal found all three witnesses (that is the Appellant and Mrs Smith and Mr Keigher) to be honest witnesses. There was remarkable congruity in their evidence and basic agreement as to the chronological events. However, the witnesses did not agree on the interpretation to be place on those events. The Tribunal found the interpretation of events offered by Mrs Smith and Mr Keigher to be persuasive and compelling. This assessment is reflected in the Tribunal’s finding of fact. That conclusion was not disturbed by the Respondent’s admission during the course of the hearing that a temporary employee had added the applicant’s signature to certain documents maintained as part of the Respondent’s quality audit system. While that does not reflect well upon the Respondent, the documents in question are not central to the issues before the Tribunal, the forgery did not occur in the course of these proceedings, and neither of the Respondent’s witnesses were aware of it”.

The forgeries form no further part of the decision. The point made by Mr McCarthy is that in each case the forgery was the subject of a counter signature by one or other of the two witnesses who gave evidence on behalf of the Respondents. In these circumstances, Mr McCarthy submits that the view of the Tribunal that “the documents in question are not central to the issues before the Tribunal” is at least arguably incorrect. The documents went to one of the complaints, namely the extent to which feedback had been provided and the pattern of it, and the forgeries ought to have played a part in the assessment of credibility, not least because of the counter signatures.  It is also suggested, although this may have to be the subject of further investigation, that the Appellant was the only student whose signature was forged. If this were the case then it seems to us it is at least arguable that that was a matter which ought to have played a larger part in the Employment Tribunal’s consideration of the evidence and in relation to the drawing of inferences. 

6.	In saying all this we are by no means disposed even to a preliminary view that the Employment Tribunal reached the wrong decision however, it does seem to us that the two points which are alone relied upon now are points which merit a further investigation. Accordingly we shall permit the matter to proceed. We will have a time estimate of half a day listing category B. There will be directions for an affidavit in accordance with the practice direction so far as the allegation of an appearance of bias is concerned. So far as the forgery of documents is concerned, we shall direct production of the Chairman’s Notes of Evidence limited to the subject of the forgery and the usual directions as to skeleton arguments will apply. We give leave for the filing of amended grounds of appeal to reflect this judgment.