Appeal No. UKEAT/0398/05/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 November 2005
Judgment delivered on 16 December 2005

Before
HIS HONOUR JUDGE PETER CLARK
SIR ALISTAIR GRAHAM KBE
MR H SINGH

MISS X H DIEM (known as ANITA HO)	APPELLANT

CRYSTAL SERVICES PLC	RESPONDENTS

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MISS ROSE
(Counsel)
Instructed by:
Messrs Russell Jones & Walker
Swinton House
324 Gray’s Inn Road
London WC1X 8DH	
For the Respondent	MR JERMAN
(Representative)
Crystal Services Plc	

SUMMARY

Practice & Procedure:  Bias, Misconduct & Procedural Irregularity 

Comments by Employment Tribunal Chairman concerning Vietnamese Claimant’s skin colour.  Appearance of bias.  Fair hearing.  Appeal allowed.

 

HIS HONOUR JUDGE CLARK

1.	This is an appeal by Miss Anita Ho against the Reserved Judgment of an Employment Tribunal sitting at Stratford (Chairman Mr S M Duncan, sitting with Mr R Edwards and Mr D F Sparks) and promulgated on 24 February 2005, dismissing her complaints of unfair dismissal, race discrimination and victimisation brought against her former employer, the Respondent, Crystal Services Plc.

The Issue
2.	The principal question in this appeal is whether the Claimant, Ms Ho, received a fair hearing before the Employment Tribunal; further or alternatively, whether the Employment Tribunal, and in particular the Chairman, gave the appearance of bias against the Claimant during the hearing, which occupied three days in October 2004, followed by 2 days’ deliberation in private on 10-11 January 2005. 

3.	Having heard full argument on that issue we allowed the appeal and set aside the Tribunal’s Judgment, directing that the whole matter be reheard before a fresh Tribunal.  Our reasons for that decision now follow.

4.	Additionally, Ms Dinah Rose, who did not appear below, raised substantive issues on behalf of the Claimant as to the Tribunal’s approach to the statutory tort of victimisation contrary to Section 2 Race Relations Act 1976 (RRA) and as to the application of the reverse burden of proof imported by Section 54A RRA and as explained by the Court of Appeal in Igen v Wong [2005] IRLR 258.  Having considered her position, following our finding on the first issue, she accepted that it would not be appropriate for this EAT to rule on those substantive issues.  Mr Jerman, on behalf of the Respondent, did not dissent.  Accordingly, we did not hear argument on, nor reach any determination of those further issues.  

Background
5.	The Claimant was employed by the Respondent as assistant manager (payroll) from 13 May 2002 until her resignation on 19 November 2003. On 16 February 2004 she presented her claim to the Employment Tribunal. In addition to the disputed complaints dismissed by the Tribunal, a further “Wages Act” claim was upheld; she was awarded £66.  We are not concerned with that particular claim. 

6.	Before the Tribunal, the Claimant was represented by Miss Sally Robertson of Counsel. Mr Jerman, the Respondent’s chairman, represented his company below as he does before us.

7.	The Claimant is of Vietnamese ethnic or national origin.  It is material to note that for the purposes of her claim of racial discrimination it was her case that she was treated less favourably than others on grounds of her Vietnamese race, not on grounds of her colour.  We remind ourselves that the expression “racial grounds” in Section 1(1)(a) RRA includes any of the following grounds, namely colour, race, nationality or ethnic or national origins (Section 3(1) RRA).

8.	During the course of the Claimant’s cross-examination before the Tribunal, an exchange took place between the Chairman and the Claimant.  We begin with the Claimant’s account of that exchange as it appears from her Affidavit, sworn in these appeal proceedings and dated 15 July 2005.
“4.	At the Employment Tribunal hearing, whilst I was giving my evidence, the Tribunal Chairman, Mr S M Duncan, questioned me at some length as to why I was claiming to be non-white.  In this context, he said that my skin colour was ‘as white as the English’.  Whilst he made this statement, he looked at me and used his finger to point at the skin of his other hand to stress the point.  In fact, my complaint was not based on any claim that I was ‘non-white’, but on the fact that I am Vietnamese.
5.	The Chairman’s comment and behaviour took me by surprise.  When I did not answer, the Chairman said to me: ‘Your skin looks whiter than mine”.  I felt pressurised to admit that my skin was white.
6.	I felt that the Chairman was mocking my appearance and perhaps my make-up was too white so that I looked like a clown or a geisha girl.
7.	I found the situation unnerving and unsettling whilst I was giving my evidence.  I felt humiliated and embarrassed, and found his comment offensive.  However, I did not have the courage to challenge his comment and felt that I was being undermined and almost mocked for bringing my complaint.  I felt nervous and found it difficult to concentrate”.

9.	That Affidavit was lodged with the EAT and a copy served on the Respondent in accordance with directions given by Burton P on paper and seal-dated 4 July 2005.  Paragraph 6 of those directions is in standard form.  It reads:
“6.	Under paragraph 11 of the Employment Appeal Tribunal Practice Direction the Appellant must lodge with the Employment Appeal Tribunal and serve on the Respondent an affidavit giving details of the alleged bias or improper conduct within 14 days of the seal date of this Order and in default paragraphs 6-15 inclusive of the amended Notice of Appeal be dismissed. Upon receipt by the Employment Appeal Tribunal of such affidavit, the Chairmen and members of the relevant Employment Tribunal will be asked for their comments, to be given so far as practicable within 21 days of receipt, for the purpose of the preliminary hearing, and the Respondent may if so advised within the same period lodge with the Employment Appeal Tribunal and serve on the Appellant an affidavit in response”.
The purpose of that direction is to provide for the eventuality that a dispute arises as to precisely what was said and done at the Employment Tribunal which gives rise to an allegation of procedural irregularity.  The practice in this EAT, laid down by Lindsay P in Facey v Midas Retail Security Ltd and Another [2000] IRLR 812 (see particularly paragraph 39), has since been approved by the Court of Appeal in Stansbury v Datapulse Plc [2004] IRLR 466 (per Peter Gibson LJ, paragraph 25).  The procedure is (i) the Appellant lodges an Affidavit, which is served on the Respondent; (ii) the Chairman and, if appropriate, members of the Tribunal, provide their comments on that Affidavit and (iii) the Respondent, if so advised, lodges an Affidavit in response to that of the Appellant.

10.	It is important to note that in the event of a factual dispute, the Chairman and members of the Tribunal will not be called to give evidence before the EAT; rather the deponents, respectively called by both parties, will be cross-examined and it will be for the EAT then to determine the factual issues (Stansbury, paragraph 25).

11.	In the present case, the Chairman and members did provide their comments on the  Claimant’s Affidavit; however, the Respondent did not lodge an Affidavit.  In these circumstances, it seemed to us, whilst we take into account the comments of the Tribunal Chairman and members, in the absence of conflicting evidence from the Respondent, insofar as any conflict of fact appears on the respective accounts of the Tribunal panel members and the Claimant, we must proceed on the basis of her account.  There is no evidence to contradict it.  It may, of course, be otherwise in a case in which the Claimant’s account is palpably incredible.  However, that is not this case. 

12.	Turning first to the Chairman’s comments, sent to the EAT under cover of a letter from the ET Secretariat dated 17 August 2005, his position may be summarised as follows:
(1)	He accepts that at the beginning of the hearing he established with Miss Robertson that the Claimant’s case on racial discrimination was based on her Vietnamese ethnic and national origin.  
(2)	On the second day of hearing, during cross-examination, the Claimant observed that it hurt her when (during the employment) Mr Jerman believed two white members of staff rather than herself and a black member of staff, Michelle Collins. That remark prompted the Chairman to ask the Claimant whether she was also alleging discrimination on account of her colour.  The Chairman’s recollection (he did not make a note) was that she replied “yes”.  He asked her how she described her colour and she said either “Asian or Oriental”; he was unsure which.  The Chairman said that was not a colour as such and he believes that the Claimant then said she was non-white; he believes that he said that her skin colour was not dissimilar to his own (white), but states that he did not, contrary to the Claimant’s account, point to his other hand or stress this observation in any way.  The Chairman concludes that the Claimant then said that her real complaint was based on her being Vietnamese and the question of her colour was no longer an issue and was not reverted to again.  He could not recall saying that her skin colour was whiter than his or pressurising her to admit that her skin was white. 
(3)	It did not cross his mind that the Claimant looked like a “clown or a geisha girl” (Claimant’s Affidavit paragraph 6) and he added that the Claimant did not give the impression of a person who was humiliated, embarrassed or mocked and further that in no way were any of his questions or comments intended to be offensive, nor did he believe that the Claimant was in fact offended.

13.	As to the lay panel members’ comments, we note that Mr Sparks recalled the Chairman saying to the Claimant that her colour was as white as the English.

14.	On that material, in the absence of evidence from the Respondent, we concluded, accepting the Claimant’s account as a matter of fact, that the Chairman enquired of the Claimant whether she was seeking to expand her claim of race discrimination to include alleged less favourable treatment on the grounds of her colour as well as her Vietnamese national origin; in so doing he asked her whether she was claiming to be non-white; he said that her skin colour was as white as the English, pointing to the skin of his other hand to stress the point and adding that “your skin looks whiter than mine”.  We further accept the subjective effect which this line of questioning had on the Claimant, as she describes it in her Affidavit.  She felt humiliated and embarrassed and found it unnerving and unsettling while she was giving her evidence in answer to questions from the Tribunal.  

Fair Hearing
15.	The principle that parties should receive a fair hearing by an independent and impartial Court or Tribunal is not new, but it is now formally enshrined in English law following the passing of the Human Rights Act 1998, itself incorporating Article 6 of the ECHR.  

16.	Separately, although linked to that principle, is the common law principle that the decision of a Tribunal which has the appearance of bias cannot stand.  We are not here concerned with any question of actual bias.  

17.	The earlier formulation of the test for apparent bias, set out by the House of Lords in R v Gough [1993] AC 646, has been adjusted by the House in Porter v Magill [2002] 2 AC 357 and followed in Lawal v Northern Spirit [2003] ICR 856.  The question for us is whether a fair-minded observer, having considered the facts, would conclude that there is a real possibility that the Tribunal (or any member of it, we should add) was biased.  Public perception of the possibility of bias is the key.  The threshold to be crossed by the Appellant is only a real possibility of unconscious bias.

18.	We remind ourselves that in addressing the question of appearance of bias, we must apply the view of the “fair-minded observer” and not the subjective view of the Appellant, nor indeed the Tribunal members themselves.

19.	We further note that in answering that question, it is right to bear in mind (Lawal, paragraph 22; cited in Stansbury paragraph 29) the words of Lord Steyn:
“What the public was content to accept many years ago is not necessarily acceptable in the world of today.  The indispensable requirement of public confidence in the administration of justice requires higher standards today than was the case even a decade or two ago”.  

Submissions
20.	Put shortly, Ms Rose submits that, applying the fair-minded observer test to the facts as we have found them, the appearance of bias is made out in this case.  

21.	That the relevant exchange assumed a real significance is illustrated by the parties’ written closing submissions below.  In particular, Mr Jerman submitted:
“The Court seriously questioned Miss Ho’s claim to be non-white.  Why Miss Ho claims to be non-white, we simply do not know.  Crystal does not consider Miss Ho to be non-white”.
He added:
“Miss Ho appears to want to present an illusion of an identity of non-white, submissive demeanour in order to exploit possible racial or victimisation claims”.
22.	The line of questioning by the Chairman, she submits, was racially insensitive and would appear to be offensive to any reasonable person.  The circumstances were such that a fair-minded observer would conclude that there was at least a real possibility of unconscious bias on the part of the Chairman, or misconduct such that the Claimant was denied a fair trial.

23.	Mr Jerman, on the other hand, points to the fact that the Claimant’s manager, when she was employed by the Respondent, Mr Cheung, was “oriental”, being from Hong Kong.  That the Claimant’s spoken English was not poor.  That the Chairman was not haranguing the Claimant, as Ms Rose suggests; he was merely seeking to clarify the grounds on which she alleged that discrimination had taken place.  His line of questioning could not give rise to the perception of bias. 

Conclusion
24.	 We accept Ms Rose’s submissions.  Complaints of race discrimination require sensitive handling by Tribunals.  The importance of understanding diversity among litigants coming before Tribunals has been recognised increasingly in recent times (see the observation of Lord Steyn, referred to earlier).  High standards of understanding and communication by all judicial officers are rightly expected.  

25.	We are here concerned not with actual bias but the perception of bias, according to the standards of the modern fair-minded observer.  That perception extends to the perception of unconscious bias.  

26.	Applying that test to the facts and circumstances of the present case as we have found them, we conclude that the Chairman’s desire to establish whether, in evidence, the Claimant was departing from her case as outlined by her Counsel at the outset of the hearing was perfectly legitimate.  Where that enquiry crossed the line, in our judgment, was in prolonged questioning as to how the Claimant viewed her own skin colour and in making comparisons with the Chairman’s own skin colour.  We find that the fair-minded observer would conclude that the remarks made were likely to cause the Claimant to feel unsettled, humiliated and embarrassed.  We emphasise that this, we think, would be the perception of that observer, whether or not the Claimant subjectively experienced those feelings.  We accept Ms Rose’s submission that the position is not improved by the Chairman’s comment that he did not believe that the Claimant was in fact offended; although equally we accept that it was not the Chairman’s intention to cause offence.

27.	In arriving at our conclusion in this case, it is right to say that it reflects the individual and collective views of all three members of this Tribunal.  My lay colleagues bring to bear their wide experience of current standards of treatment of litigants from diverse cultures and backgrounds in applying the fair-minded observer test.  For my part, I would stress the valuable work and guidance provided by the Judicial Studies Board’s Equal Treatment Advisory Committee, chaired by Mrs Justice Cox, a judge of the EAT, contained in the JSB Equal Treatment Bench Book.  This is not a matter of what is sometimes pejoratively called “political correctness”.  It is simply a recognition of the need for fair treatment of all our litigants, paying proper regard to their diverse backgrounds.

Disposal
28.	The appeal is allowed.  The outstanding issues (excluding the Wages Act claim) are remitted for rehearing before a fresh Tribunal to be appointed by the Regional Chairman.