Appeal No. EAT/1193/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	                   At the Tribunal
	           On 23 October 2001
Judgment delivered on 28 November 2001

Before
HIS HONOUR JUDGE J R REID QC 
MR D A C LAMBERT
MISS D WHITTINGHAM

MR P ANTHONY	APPELLANT

GOVERNING BODY OF HILLCREST SCHOOL	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MISS I OMAMBALA
(of Counsel)
Instructed by:
Messrs Reynolds Porter Chamberlain
278-282 High Holborn
London WC1V 7HA	
For the Respondent	Mr Cartwright
East Sussex County Council
Legal & Community Services
Pelham House
St Andrews Lane
Lewes
BN7 1UN	

JUDGE J R REID QC

1.	This is an appeal by Mr P Anthony against the decision of an Employment Tribunal held at Ashford sent to the parties on 9 August 2000. By its decision the Tribunal held that Mr Anthony's dismissal from his post as a teacher at Hillcrest School was not unfair.

2.	The issues raised by the notice of appeal were, first, that there was alleged to be an appearance of bias on the part of the Chairman of the Tribunal, Mr de Saxe, and second, that the decision was perverse. Only the point relating to bias was taken at the full hearing of the appeal. 

The facts
3.	Hillcrest School is a large comprehensive school in Hastings. In 1995 it advertised for a teacher to teach history to A Level and some geography in Key Stage 3. The advertisement was for a:
 "Teacher of History".
The first of the selection criteria adopted was 
"To have suitable qualifications for a History-Geography Teacher." 

Mr Anthony, who had previously applied unsuccessfully for a post as a teacher of humanities at the school, applied for the post. In the Curriculum Vitae which he submitted he set out, amongst other things, his:
 "Education & Qualifications"
Under that section he wrote:
"London School of Economics 1978-1980
MSc European Studies (Interdisciplinary History, Geography, Politics, Economics)"

His letter claimed:
"As a postgraduate student of Modern European History (specialising in Germany from 1919 to the present) I am academically well qualified for the post…."
The MSc was the only graduate qualification he claimed which included any element of history. On the basis of his CV he was called for interview, having initially been a reserve, and was appointed to the post with effect from 1 September 1995. Had it not been for the claim to the MSc Mr Anthony would not have been called for interview, let alone appointed. At the interview his claim to an MSc was not discussed and it was assumed he had the degree his CV claimed.

4.	In fact Mr Anthony did not have an MSc. He had completed the taught part of the course but had not submitted the 10,000 word dissertation which was necessary for him to complete the course and be eligible for a degree.

5.	In 1997 it was discovered that the deputy head teacher in another Sussex school had misrepresented his qualifications and the local education authority undertook a policy of asking all schools to check:
 "the degree level and post-graduate qualifications where claimed on application forms." 
Mr Anthony was duly asked to produce his MSc degree certificate and after some prevarication admitted he did not have the degree.

6.	Following an investigative meeting the headteacher Mr Russell made a recommendation in firm terms that Mr Anthony should be dismissed. A disciplinary meeting was held at which the disciplinary panel, comprising governors of the school, decided Mr Anthony should be dismissed for gross misconduct. The panel held that Mr Anthony had deliberately misled the headteacher as to his qualifications. Mr Anthony appealed to an appeal board comprising other governors. The appeal hearing lasted, with breaks, from 9.30am to 9.15pm. At the end of it Mr Anthony's dismissal was upheld. The appeal panel held that Mr Anthony misrepresented his qualifications in his CV and that it was inconceivable that Mr Anthony was not aware of the contents of his application. The panel noted Mr Anthony was not a naïve young man but a person of experience in the world (he was a former soldier, businessman and local councillor).

The Tribunal Proceedings
7.	After his appeal failed Mr Anthony applied to the Employment Tribunal alleging unfair dismissal. His grounds of application were that the penalty was unreasonable and:
"not warranted by the alleged inaccuracies because they were accidental rather than deliberate or premeditated".

The application made no mention of any complaint against the headmaster or about the conduct of the disciplinary process. Thus the issue as it appeared at the commencement of the Employment Tribunal hearing was simply whether the penalty of dismissal was outside the reasonable band of responses by the employer to Mr Anthony's admitted offence. 

8.	The hearing was conducted over four days in May and June 2000 and the Tribunal then deliberated on another day. The Chairman signed the reserved decision on 4 August 2000.   

9.	The Respondent's evidence was taken first and the first witness was the headteacher. When Mr Reynolds, the NASUWT representative who appeared for Mr Anthony, started to cross-examine Mr Russell, he did so apparently challenging Mr Russell's good faith and suggesting the terms of his report which led to the disciplinary hearing were motivated by his own undisclosed agenda.  Mr de Saxe appeared irritated by this.

10.	He intervened with words to the effect (according to Mr Reynolds):
"Oh come now, Mr Reynolds, either Mr Anthony has the Master's Degree or he does not. If he does not then this is a straightforward case, your points are not relevant."

Mr Reynolds' evidence is that he responded to the effect he thought it would be helpful if Mr de Saxe heard from Mr Anthony before he made up his mind. Mr Reynolds pressed on with his cross-examination and the Chairman twice made reference to the possibility of costs being awarded. Mr Reynolds says that in the light of the references to costs he had to modify his cross-examination. Whether modified or not, the cross-examination of the headteacher lasted the whole of the first afternoon and into the following morning. It is common ground between Mr Reynolds and the Chairman that there were frequent interruptions relating to the relevance of the lines of questioning during the first afternoon.

11.	According to Mr Anthony, his wife and his other witnesses the Chairman said:
"If that is going to be Mr Anthony's explanation he can save himself the trouble. Does he take us for complete fools?"  

All depose to the same words, and do so in passages in identical terms in documents all typed up by Mr Anthony. There appears to have been no contemporaneous record made by anyone of those words. We have had produced to us a copy of notes said to have been made during the first day by another teacher who was present, Ms Syred (though counsel for Mr Anthony did not seek to adduce the affidavit she had sworn). That note contains no record of any such words being used.   Unfortunately it was not until October 2000 that the question of bias or whether any such remarks had been made was raised with the Chairman and the two lay members of the Tribunal. They had, by the time the matter was first raised with them in October 2000, no exact recollection of the comments complained of  but the Chairman and one lay member were prepared to accept, since they had no recollection to the contrary, that this comment had been made. Their view was that a great deal of time was being wasted over irrelevant matters, that in the circumstances the reference to costs was appropriate, but that the comment was one which should not have been made and the Chairman apologised for it. The other lay member had no recollection of such a remark having been made.    

12.	Overnight Mr Reynolds sought advice from the Union's solicitors because he perceived that he was being prevented from putting his case properly. He was told he could do little but stand his ground and have further interruptions noted. At the same time Mr Anthony consulted his own solicitor and was told not to walk out of the hearing and not to dismiss Mr Reynolds but to have a note kept of future interventions so that an appeal could be launched if the appeal was lost.

13.	The following day Mr Reynolds took issue with the Chairman about the interruptions saying it made it difficult for him to put Mr Anthony's case. The Chairman says that the point was well taken and it is common ground that thereafter there was less in the way of interruption and no further reference to costs.

14.     Mr Reynolds' remaining complaint is that when Mr Anthony was giving evidence in chief the Chairman objected that various points were not put in cross-examination. He says that this was because he had been prevented from cross-examining properly.    

15.	Mr Anthony's deponents (his wife and other teachers at the school who were at the hearing, called to give evidence on Mr Anthony's behalf) all say in identical words:
"I was a witness to comments made by the Tribunal Chairman on the first day which persuaded me at the time (and I have not subsequently changed my mind) that the Chairman showed evident and persistent bias against Mr Anthony."

They also complain of the tone of the interruptions made by the Chairman.

The Law
16. 	There was little or no disagreement between the parties as to the substance of the applicable law. The starting point is the classic test of apparent bias in English law formulated by Lord Goff of Chieveley in R v Gough [1993] AC 646 at 668: 

"…if in the circumstances of the case (as ascertained by the court), it appears that there was a real likelihood, in the sense of a real possibility, of bias on the part of a justice or other member of an inferior tribunal, justice requires that the decision should not be allowed to stand."

Then at 670 he continued:

"I think it unnecessary, in formulating the appropriate test, to require that the court should look at the matter through the eyes of a reasonable man, because the court in cases such as these personifies the reasonable man; and in any event the court has first to ascertain the relevant circumstances from the available evidence, knowledge of which would not necessarily be available to an observer in court at the relevant time. Finally, for the avoidance of doubt, I prefer to state the test in terms of real danger rather than real likelihood, to ensure that the court is thinking in terms of possibility rather than probability of bias. Accordingly, having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him.’

That classic test must now be slightly amended in the light of the Human Rights Act 1998: see In re Medicaments and Related Classes of Goods [2001] ICR 564 at 591 where Lord Phillips of Maltravers, delivering the judgment of the Court, said:

"The Court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude there was a real possibility, or a real danger, the two being the same, that the tribunal was biased."

The difference of approach highlighted by Lord Phillips is that it makes clear that the Court is applying an objective test to the circumstances and not passing judgment on whether that particular tribunal under review was in fact biased.

17.     In R v Inner West London Coroner ex p Dallagio and anor [1994] 4 All ER 139 at 151 Simon Browne LJ derived a number of propositions from the rules enunciated in Gough:
"It is not necessary for the applicants to demonstrate a real possibility that the coroner's decision would have been different but for bias; what must be established is the real danger of bias having affected the decision in the sense of having caused the decision maker, albeit unconsciously, to weigh the competing contentions, and so decide the merits unfairly."

18.     One case in which the decision of an Industrial Tribunal was set aside on the ground of apparent or real danger of bias was Peter Simper & Co Ltd v Cooke [1986] IRLR 19, EAT, in which Peter Gibson J (as he then was) held that the impression of bias may be given:

“by the appearance of a closed mind against a party on a matter which calls for decision by the tribunal when that party has not yet presented all his evidence relevant to the point or had the opportunity of addressing the tribunal on that evidence."

19.	Similarly in Harada Ltd v Turner[2001] EWCACiv 599 the decision of an Employment Tribunal was set aside because as Mantell LJ put it:
"on an objective appraisal of the material facts in this case a legitimate fear does arise as to the impartiality of the tribunal." 

In order to comply with the requirements of Article 6(1) of the European Convention on Human Rights the objective appraisal of the facts requires the appraiser to see not only whether the tribunal was impartial but whether it appeared so: see Scanfuture UK Ltd v Sec of State for Trade and Industry and ors [2001] IRLR 416.  

20.	The parties were agreed that there could be circumstances where the failure of a party to object timeously to apparent bias amounted to a waiver of any right to complain: see, for example, Locabail v Bayfield Properties Ltd [2000] IRLR 96 at para 26, 68 and 69, and Harada at para 36. In Locabail at paragraph 68 the Court of Appeal said:
"In our judgment, Mrs Emmanuel and her lawyers had to decide on 28 October what they wanted to do. They could have asked for time to consider the position. They could have asked the deputy judge to recuse himself and order the proceedings to be started again before another judge. They could have told the judge they had no objection to him continuing with the hearing. In the event, they did nothing. In doing nothing they were treating the disclosure as being of no importance. The hearing then continued for a further seven days, judgment was reserved, the Hans House appeal was heard, judgment was reserved, and judgment in both cases was given three-and-a-half months later. During all this period Mrs Emmanuel and her lawyers did nothing about the disclosure that had been made on 28 October. They only sprang into action and began complaining about bias after learning from the deputy judge’s judgment that Mrs Emmanuel had lost."

The Court held that this disqualified Mrs Emmanuel from complaining of bias.

21.     The one area of divergence was whether, if there was a finding of a risk of bias, the decision could nonetheless be allowed to stand. On behalf of the Respondent it was submitted that there were circumstances where it would be inappropriate to send a case back for a re-hearing because the outcome of a re-hearing would inevitably be the same: see Bache v Essex County Council  [2000] ICR 313. The Appellant submitted that once there was a was a real likelihood of bias shown, a decision could not stand: see for example Gough at p668 per Lord Goff, and the words of Mantell LJ in Harada: 

"Irrespective of the correctness or otherwise of the decision which was eventually reached, it has to be remembered that what is at stake here is confidence in the administration of justice.”

In our judgment the general rule is that once a real danger of bias is shown, then except in an exceptional case the decision must be set aside. Pill LJ at para 38 (with whom McKinnon J agreed) envisaged that there might be exceptional cases in which the decision need not be set aside.  We do not think that it can be said that it is an invariable rule without any exceptions that the decision must be set aside, but it is not sufficient simply to say that the decision on a new trial would inevitably be the same. The case must be one in which it can be said with certainty that to permit the decision to stand would not affect confidence in the administration of justice.

The Appellant's Case
22.	The Appellant's counsel submitted that the case was a clear one. The comments of the Chairman, his frequent interruptions and the tone of his interruptions all suggested that he had a mind closed against Mr Anthony. Those present were given the impression of bias and the Chairman's attitude made it impossible for Mr Anthony's representative properly to put the planned case of his client.

23.	The fact that the issue of bias was not raised until the notice of appeal did not give rise to any waiver. This method of proceeding was in accord with the Peter Simper case. Mr Anthony and his representative had each taken advice and as a result had determined to continue at the hearing. It was a sensible course and one which could not be said to indicate that they were waiving any rights arising out of the Chairman's behaviour. Therefore it was inevitable the case should be remitted for re-trial before a different Tribunal.

The Respondent's Case
24.	The Respondent submitted that the intervention mentioned by Mr Reynolds gave no indication of a closed mind. The Chairman was entitled to clarify at an early stage whether Mr Anthony was asserting he had the degree or not. When he gave evidence Mr Anthony appears to have asserted that in his mind he had the degree (ie he had effectively done all he need to get it but for the technicality, as he saw it, of not having completed his dissertation). With a lengthy and expensive hearing in prospect the Chairman was entitled to warn a party who appeared to be wasting time on irrelevant matters about the possibility of a costs order.

25.	In this case the factual issues were in a small compass but the hearing lasted four days which made it clear that Mr Anthony had not in any way been hampered in presenting his case as fully as he could have wished. If the Chairman used the expression which Mr Anthony and his witnesses suggested, it was regrettable and the Chairman had apologized for his lapse, but this was a single remark which had to be placed in the context of a four day hearing. The problem largely arose because of the way in which Mr Anthony and his representative had chosen to conduct their case. The originating application simply asserted that dismissal was too harsh a penalty for an innocent error. It was only during the hearing that it came to light that the case being presented was not simply that Mr Anthony's error was innocent but that the headteacher had made a biased and unfair report to the Governors which had in effect removed from them their power to impose a lesser penalty than dismissal. It was inevitable with the way Mr Anthony's case was conducted that the Chairman would perceive the cross-examination of the headteacher (the first witness called) as dealing with irrelevancies and so have sought with increasing irritation to move Mr Reynolds along and keep his questioning to what appeared on the originating application to be relevant.

26.	As a further point it was suggested that the failure of Mr Anthony to raise the issue earlier robbed him of the right to complain of bias at this stage. It had not been mentioned to the Tribunal, even in the written final submissions. As a result no one had a chance to recall the supposed events until long after it was realistic for them to have any recollection of words used. Even if there were a procedural irregularity giving rise to the appearance of bias, it was submitted it would not be appropriate to remit the case. These days one has to look at the proportionality of that course. The time and expense would be out of all proportion to the case, given the inevitability of a new hearing reaching the same conclusion.

Conclusions
27.	The starting point of the trouble in this case was, in our view, the failure of Mr Anthony and his representative to identify in his originating application the claim that he was unfairly dismissed because the headteacher had produced an unfair report and that this report had resulted in the disciplinary hearing and the appeal not being fairly conducted because the biased nature of the report (as was submitted to the Employment Tribunal in Mr Reynolds’ closing submissions):

"had the effect of skewing the judicial process and taking away from both the first disciplinary panel of the governors and from the appeal panel of the governors their discretion to impose a lesser penalty". 

The Tribunal was presented on the papers with a case in which the only issue raised was whether the punishment of dismissal was outside the reasonable range of responses by the employer. Because it was for the Respondent to go first the Tribunal was not  presented at the outset with a clear outline of Mr Anthony's case nor did it have any advance opportunity of understanding the purpose of the cross-examination of the headteacher.

28.	On the documents before the Tribunal there was no reason for Mr Anthony's representative to cross-examine the headteacher as he did. He wanted to educe evidence from the headteacher to support his contention that the headteacher was motivated by his own agenda to ensure Mr Anthony was dismissed. The Chairman would inevitably have wished to cut short what appeared to be irrelevant questioning. As Kirkwood J observed in Zurich Insurance Co v Gulson [1998] IRLR 118 at 119 (cited with approval by Ferris J in Bache v Essex CC [2000] ICR 313 at 324E):
 "it is in no sense incumbent on the tribunal and forms no part of the judicial exercise of discretion it has, to allow lengthy and detailed cross-examination on matters that do not appear to the tribunal to be of assistance to it, however enthusiastically the advocate endeavours to pursue that line."

It is unfortunate that the manner of the Chairman (no doubt increasingly irritated at what he perceived were irrelevant attempts to cloud what was on the papers a simple issue) gave those present who would not have been aware of the reason for the Chairman's hostility the impression that he did not want to hear Mr Reynolds.  But to those who have the advantage of now knowing the full story, it cannot be said that the Chairman's dealings with Mr Reynolds give an indication that the Chairman's mind was closed.  It is true that Mr Reynolds felt sufficiently perturbed to seek advice from the Union's solicitors about his treatment but he received firm and sensible advice: to stick to his guns and stand up to the Chairman. This worked. It is noticeable that the second part of the advice was to advise Mr Anthony to arrange for notes to be made of future interruptions. Mr Anthony had received similar advice about taking notes of future interruptions. But no notes were supplied of any interruptions on any of the remaining four days of the hearing, and Mr Reynolds’ affidavit makes no complaint of any further interruptions which prevented him putting his case once he had made his stand the following morning.

29.	The second element of Mr Reynolds' complaint is that when Mr Anthony was being asked supplementary questions in chief the Chairman intervened to point out that the points being made were not put to the Council's witnesses in cross-examination. This, as Mr Reynolds pointed out to the Chairman, was because he had been prevented from doing so by the Chairman's earlier interventions. However no harm was done by this. There is no suggestion that Mr Reynolds was prevented from adducing any evidence from Mr Anthony.

30.	The third element of Mr Reynolds' complaint is that he felt he had to modify his cross-examination in the light of the reference to costs. He gives no detail of any modification he made. His cross-examination was lengthy. He gives no indication that there was any topic he did not cover as a result of the Chairman's intervention. It is within the prerogative of a Chairman to warn a party if their conduct appears to give rise to the possibility that an award of costs might be made against them. Indeed in some cases it may be unfair not to warn a party of the danger they are running. In these circumstances of this case we cannot see that any injustice could have been caused by the Chairman's reference to costs. Nor could any informed observer knowing all the facts have felt that it showed any real possibility of unfairness.

31.	The matter which has caused us most concern is the Chairman's remark deposed to by Mr Anthony and his witnesses 
"If that is going to be Mr Anthony's explanation he can save himself the trouble. Does he take us for complete fools?"  
Taken at face value this would cause an independent observer to think there was a real possibility that the Chairman had prejudged "Mr Anthony's explanation". What is astonishing is that apparently no one took any issue with the remark at the time, and it apparently made so little impression on Mr Reynolds, to whom the remark was addressed, that he neither noted it nor made complaint about it in his affidavit. This lack of any contemporaneous record makes it all the more unfortunate that no complaint was made about this remark until the sworn statements made by Mr Anthony and his witnesses in mid-September 2000.

32.	The remark, assuming it to have been made as claimed, has to be looked at in the context of the issues which were before the Tribunal over a four day hearing. The Tribunal was not primarily concerned with whether it believed either of the explanations given by Mr Anthony (that in his mind he had the degree, and that he was reckless in failing properly to check his CV which had been typed up by his wife in a hurry) but whether there had been proper conduct of the disciplinary proceedings and whether the decision was within the range of reasonable responses. What mattered was that the two panels of governors after lengthy hearings held that he was lying and that he should be dismissed. The Tribunal rejected the suggestion that the panels had been unable to exercise their own discretion because of the headteacher's strong recommendation for dismissal and accepted the evidence of members of each of the two panels that they realised there was a range of sanctions which could have been imposed. The Tribunal then went on to find that the governing body acted reasonably in treating the circumstances as a reason for dismissal. It was this that founded the Tribunal's conclusion.

33.	It is true that the Tribunal rejected the suggestion that the misrepresentation in Mr Anthony's CV was "inadvertent". As it held:
"One either has a degree or one does not. Mr Anthony can have been in no doubt that he did not have the degree".

It then went on to point out that Mr Anthony's second suggestion that he was "cavalier" in his attitude towards the preparation of forms did not assist him. He was reckless and he should have checked his CV before signing the declaration of accuracy at the foot of his application 
form. The conclusion of the Tribunal was 

"We have no doubt that Mr Anthony made either a deliberate or a reckless misrepresentation when he filled in his CV. He continued to hold himself out as having that qualification, and did nothing to correct it." 

This conclusion appears to give Mr Anthony the benefit of the doubt so far as the Tribunal is concerned.

34.     When we take all these factors together we take the view that an informed observer would think long and hard about the impression created by the Chairman's remark, but, after considerable hesitation, looking at it in the context of the entire four days and the true issues involved in the case, would not in the end conclude that the remark showed a real danger of bias. The remark would have been written off as an unfortunate remark arising from the Chairman's surprise at what at first blush must have been a very unlikely explanation by Mr Anthony. No doubt the Chairman will in future be far more careful not to make unguarded comments which could lead a party to feel that he is not receiving a full and fair hearing. It is not surprising that the comment in this case, together with the interventions in Mr Reynolds cross-examination brought about by the failure of Mr Anthony and his representative to make clear what the real issues were, should have given the impression of bias to Mr Anthony's fellow teachers, unaware of the true issues in the case. We regard the case as being very close to the border line but not over it. We are reinforced in our view by the fact that the allegation which has given us most cause for concern does not appear to have impinged on Mr Reynolds' consciousness at all. 

35.	Had we thought that the remarks did cross the line, we would have regarded Mr Anthony's delay in raising the issue as amounting to a waiver of his right to complain. Although he acted in accordance with the advice he received in sticking out the hearing, it is most unfortunate that the remark on which he relies was not the subject of any contemporaneous note and was not adverted to at any later stage in the proceedings, even by a note in the written final submissions to the effect that the submission were being put in without prejudice to the matters now raised. The case proceeded for four full (and no doubt expensive) days without any point being raised. Mr Anthony waited until he knew he had lost the case and only then did he raise the question of bias. In our view this case is on all fours with the position in Locabail. Just as Mrs Emmanuel did nothing while the case progressed and did nothing whilst judgment was reserved, but only sprang into action when she knew she had lost, so Mr Anthony allowed the case to progress to a conclusion without any recorded protest and then did nothing over the period while the reserved decision was being prepared. By doing so he lost whatever right he had to complain. 

36.	Even if we had taken the view this was a case in which there was the appearance of a real danger of bias in the proceedings, we would not have sent the case back for a re-hearing. It will be rare indeed in cases where there has been the appearance of a real danger of bias that the result will be allowed to stand. As Mantell LJ observed in Harada at para 45
"…what is at stake here is public confidence in the administration of justice",

but this is an exceptional case. Mr Anthony had obtained a job by claiming (deliberately or negligently) a qualification he never had. That qualification was the only academic qualification he had which made him eligible for the post. But for his false claim he would never even have been interviewed for the job. The decision that he should be dismissed at which the two panels of governors arrived was inevitable. It would have been enough to preserve confidence in the administration of justice for the Employment Appeal Tribunal to make clear that the comments giving the appearance of a real danger of bias are entirely unacceptable. But to send back a case for a re-hearing in circumstances where it is clear there was in fact no bias as opposed to the appearance of a danger of bias and where there could be no decision other that at which the Tribunal arrived would be disproportionate and, if anything, might give the impression of a system which valued appearance over substance.

37.	It follows that we have concluded that this appeal should be dismissed.