Appeal No. UKEAT/0415/07/JOJ

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 October 2008
Judgment handed down on 10 December 2008

Before
HIS HONOUR JUDGE PETER CLARK
MR A HARRIS
MR J MALLENDER

MR S AZIZ-MIR	APPELLANT

SAINSBURY’S SUPERMARKETS PLC	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR S AZIZ-MIR
(The Appellant in Person)	
For the Respondent	MR T SHEPPARD
(of Counsel)
Instructed by:
Messrs J Sainsbury Plc
Legal Services
33 Holborn
London EC1N 2HT

SUMMARY
PRACTICE AND PROCEDURE:  Bias, misconduct and procedural irregularity
Whether ET gave appearance of bias – fair-minded observer test – on the evidence and material before the EAT that case was not made out. Appeal dismissed.

HIS HONOUR JUDGE PETER CLARK
1.	This is an appeal by Mr Aziz-Mir, the Claimant before the Leeds Employment Tribunal, against the reserved Judgment of a Tribunal chaired by Employment Judge Grazin sitting with Mr M Golightly and Ms N Takla-White.  By that Judgment, promulgated with reasons on 6 April 2006, the Employment Tribunal dismissed each of the Claimant’s claims of racial discrimination, victimisation under the 1976 Act and trade union victimisation brought against his employer, the Respondent Sainsbury’s Supermarkets Plc.  

2.	As the date of the Employment Tribunal’s Judgment suggests this case has had a protracted passage through this appeal tribunal.  The history is recorded at paras 3-5 of the judgment delivered by HHJ McMullen QC at an all parties preliminary hearing of this appeal held on 28 November 2007 (the Preliminary Hearing judgment).  On that occasion the full division presided over by Judge McMullen dismissed all grounds of appeal save one, “bias”, which was permitted to proceed to this full hearing.  We refer to the Preliminary Hearing Judgment for the reasoning.

Bias
3.	Cases of actual bias, where a judicial officer allows his decision to be influenced by partiality or prejudice in favour of one party to the litigation which he must resolve, are rare.  Normally, as in the present case, the allegation is one of an appearance of bias.  Here the question is whether a fair-minded and informed observer would conclude that there was a possibility or a real danger, the two being the same, that the tribunal was biased.  Porter v Magill [2002] 2 AC 357, paragraph 103, per Lord Hope of Craighead. (The fair-minded observer test).

4.	The appearance of bias is inimical to a fair hearing, to which every litigant before an independent judicial body is entitled with or without the incorporation of Article 6 ECHR.  There may be an overlap with allegations of procedural irregularities as in the present case.  The overall question for us is whether this Claimant received a fair hearing.

5.	We should mention for completeness that the Claimant raised a separate point, that Judge Grazin should recuse himself on the grounds of a connection with a Jewish organisation, Limmud, which may or may not receive funding from the Sainsbury Family Trust.  Judge Grazin declined to do so (Reasons, paragraph 4).  The appeal against that refusal was rejected by Judge McMullen’s division (Preliminary Hearing judgment, paragraphs 32-37).  We are therefore not concerned with that issue at this Full Hearing.

Procedure
6.	The Employment Appeal Tribunal Practice, laid down by Lindsay P in Facey v Midas Retail Security [2000] IRLR 812, paragraph 39, as endorsed by the Court of Appeal in Stansbury v Datapulse Plc [2004] IRLR 466 and contained in successive PDs issued by the President from time to time, provides that where a complaint of bias or misconduct on the part of an employment tribunal is raised in the Notice of Appeal affidavits or witness statements are obtained from the parties, as are comments on the allegations from the employment tribunal chairman and, if appropriate, lay members.  If issues arise as to what happened below the deponents, although not the members of the employment tribunal, will give evidence before the Employment Appeal Tribunal and be subject to cross-examination.  It will then be for this tribunal, unusually, to carry out a fact-finding investigation in order to apply the fair-minded observer test.

7.	That is what Judge McMullen’s division directed in the instant case (Preliminary Hearing judgment, paragraph 31).  As a result the Claimant lodged an affidavit sworn on 14 December 2007 and a witness statement from Ms Maria Bamieh of counsel, who appeared pro bono on his behalf before the Grazin Tribunal.  For the Respondent, Mr John Robinson, a solicitor who represented the Respondent below, lodged a witness statement dated 16 January 2008.  By paragraph 5 of the order of the Employment Appeal Tribunal dated 30 November 2007, following the Preliminary Hearing held on 28 November, Judge McMullen ordered affidavits or statements from those three potential witnesses, if so advised, and directed that no evidence would be given orally unless so ordered on application stating reasons.  No such application had been made when this matter first came before this division on 1 April 2008.

8.	As a result we felt obliged to accede to a joint application from the parties for an adjournment of the full hearing so that all witnesses could attend for cross-examination.  This they did at the restored hearing held on 14 October 2008 and we heard from each of the three witnesses.

9.	As to the Employment Tribunal members, comments were initially provided by Judge Grazin dated 19 September 2007 and final collective comments of the Employment Tribunal were provided by the Judge dated 14 February 2008.  The Claimant provided his final response by a letter dated 26 March 2008.  

10.	When we adjourned the hearing on 1 April we directed the parties to agree and lodge a list of factual issues for determination at the restored hearing.  No agreement was reached, probably due to issues between the parties as to which allegations remained live and which had been disposed of at the Preliminary Hearing and I gave a further direction for the conduct of this hearing by a letter dated 4 July 2008. 

The Present Case
11.	Based on the written material to which we have referred and the oral evidence heard we find the relevant facts based on the civil standard of proof, and apply the fair-minded observer test, as follows.  Until shortly before the hearing before the Grazin Employment Tribunal commenced on 14 November 2005 the Claimant represented himself.  On about 5 November Ms Bamieh was asked by the Claimant’s sister, via the Society of Black Lawyers, of which she was a member, to appear on his behalf at the hearing.  She agreed to do so without fee.

12.	She was not able to prepare for the hearing until the week-end before the hearing due to start on Monday.  The papers extended to about 1,500 pages, filling 3 lever-arch files.  She nevertheless set about the task and realised that it would be necessary to make application on the first morning for permission to amend the Claimant’s pleadings.  We interpose that the claim was instituted by a Form ET1 received by the Employment Tribunal on 24 May 2005.  In addition, she prepared a supplementary witness statement for signature by the Claimant.

13.	Her application to adduce further evidence and for permission to amend resulted in a ruling by the Employment Tribunal that the amendment be refused and the supplementary witness statement was severely redacted.

14.	In evidence before us the Claimant said that the Employment Tribunal’s refusal to allow the proposed amendment gave an appearance of bias.  However, when Ms Bamieh was asked about this aspect by Mr Sheppard she said that her late application to amend was unlikely to succeed.  She disagreed with the Claimant’s characterisation of the Employment Tribunal’s refusal as giving an appearance of bias.  For ourselves, applying the Selkent test (see Selkent v Moore [1996] ICR 836, approved by the Court of Appeal in Ali v Office of National Statistics [2005] IRLR 201) we agree with the view expressed by Ms Bamieh.  Far from exhibiting an appearance of bias against the Claimant, we think that the Employment Tribunal’s case management decision to refuse an amendment at this late stage, given the earlier case management orders, was plainly correct, balancing the prejudice and hardship as between the parties of allowing or refusing the amendment.  We bear in mind the actual outcome in Selkent.  Permission to make a late amendment to add an allegation of automatically unfair dismissal to the pleaded case of ordinary unfair dismissal was held, by the Employment Appeal Tribunal (Mummery P presiding) to be perverse and was reversed.

15.	A factual issue arises before us as to a comment made by Mr Golightly, one of the Tribunal members, at the outset of the hearing.  By way of background, as the Employment Tribunal found as fact, the Claimant was subjected to disciplinary proceedings by the Respondent which resulted in his dismissal on grounds of misconduct by his Store Manager, Mike O’Hara, following a disciplinary hearing which concluded on 22 December 2004.  The original allegation was that on 25 November the Claimant’s supervisor, Ms Green, was moving product on a roller-pallet when the Claimant collided with the pallet deliberately, something which he denied.  

16.	Against that decision the Claimant’s appealed to the Regional Operations Manager, known as ‘Kaz’, described by the Employment Tribunal as a very experienced Appeals Manager.  Kaz allowed the appeal, concluding that there had been procedural errors, principally in relation to the Claimant’s suspension from duty.  The Employment Tribunal found that the dismissal had been overturned on procedural rather than substantive grounds (Reasons, paragraph 60).  They accepted Kaz’s evidence that his view was that the Claimant probably had behaved as alleged by Ms Green.

17.	Those were the Employment Tribunal’s eventual findings; however the material complaint before us is that prior to hearing any evidence Mr Golightly intervened to say that the Claimant “had been reinstated, what more did he want”.  That was Ms Bamieh’s recollection recorded at paragraph 13 of her witness statement; in cross-examination she told us that Mr Golightly said, “He’s been reinstated.  What’s his problem?”  That incident was recalled by the members of the Employment Tribunal (Judge’s comments; paragraph 1.9 dated 14 February 2008) in this way; the observation was made as the Chairman was seeking to clarify the issues with Ms Bamieh and Mr Robinson.  It is accepted that Mr Golightly sought to understand why the Claimant was complaining of detrimental treatment, having regard to the fact of his reinstatement (he was later dismissed finally, but that was not the subject of the present litigation).  It was a question to the Chairman which was dealt with by the Chairman explaining that the Claimant’s case was that he should not have been subjected to any form of disciplinary action at all and therefore dismissal followed by reinstatement itself amounted to a detriment.

18.	It was Ms Bamieh’s impression, she told us, that the Employment Tribunal appeared to be treating the case as one of unfair dismissal, rather than discrimination, which raised a ‘need to dig’ in order to decide whether inferences should be drawn in favour of the Claimant.  However, we did not understand her to challenge the context in which Mr Golightly’s remark was made as explained by the Judge in his comments.

19.	In these circumstances we accept the Employment Tribunal’s account of the context in which the remark was made.  The lay member may well have missed the full nuances of the discrimination claim arising out of disciplinary action which culminated in the Claimant’s reinstatement following dismissal.  If so, he was put on the right lines by this very experienced Chairman and we have no reason to believe that such a misconception by one of the lay members was carried forward in his, let alone the other two members of the panel, mind when listening to the evidence and argument and in their final deliberations in private.

20.	The hearing before the Grazin Employment Tribunal was originally listed for five days.  It did not, however, conclude on 18 November 2005.  A further five days were necessary to complete the evidence and submissions between 27 January and 3 February 2006.  It seems that a Chambers discussion was then held by the panel on 6 February 2006.  During the break, on 24 November 2005, Ms Bamieh wrote a letter of complaint to the Employment Tribunal.  She asked that the Employment Tribunal recuse itself, citing the appearance of bias on the part of the Chairman and Mr Golightly (but not Ms Takla-White, against whom, she told us in evidence, she has no such complaint, although she opined that Ms Takla-White may have been influenced by the Chair).

21.	Before going to the individual complaints about the conduct of the hearing itself we should record the evidence which we heard from Ms Bamieh and accept about her career to date.  She was called to the bar in 1984 and did the first six months of what was then pupillage in commercial chambers; the second six in criminal chambers.  Thereafter she joined the Crown Prosecution Service (CPS) and practised, inevitably, in crime until about 2000, although during that period, as a member of the Society of Black Lawyers she was concerned with issues of discrimination.  Between 2000 and 2003 she was occupied with the CPS on diversity issues and with the Denman Enquiry into what she described as institutional racism in the CPS.  During that period she was exclusively concerned with diversity issues.  She left the CPS in 2003 intending to set up her own employment law practice but found that she had insufficient work.  `She was employed by the London Borough of Brent from 2006 until August 2007 when she began work as an International Prosecutor for the U.N. in Kosovo.  She has been associated with the Employment Bar Association linked to 2 Garden Court Chambers.  We also note (Preliminary Hearing judgment, paragraph 8) that she represented herself in a discrimination claim (we infer brought against the CPS) ‘impressively’ in the judgment of our colleague Mr Yeboah, a former Employment Tribunal member, before whom she appeared.

22.	We have set out her full career history because we think it is important in understanding her complaints against the Grazin Employment Tribunal and that Employment Tribunal’s response.  In commenting on Ms Bamieh’s witness statement Judge Grazin said (14 February 2008; paragraph 1.2.3):

“We note the contents of Ms Bamieh’s Affidavit as to her professional career.  We obviously did not go into that degree of details with Ms Bamieh on this Hearing.  The clear impression she gave to the members of the Tribunal was that she was a Barrister practising in the field of criminal law and that she had little or no previous experience of employment law and / or Employment Tribunal practice and procedure.  We are satisfied, on consideration of this matter, that many of the interventions by the Tribunal were made in an attempt to assist Ms Bamieh to deal with issues which we regarded as of importance and which appeared not to have been appreciated by her.  It is clear from Ms Bamieh’s Affidavit that she took exception to that approach, but that was not a matter that was apparent to us by reference to her existing professional experience at the time.”

We think there was, in this case, something of a culture clash between Ms Bamieh and the Chairman, based on their respective professional experiences.  The Chairman, we are aware, has many years of experience sitting on these Tribunals.  Ms Bamieh’s experience as an advocate has been predominantly (although not exclusively) in crime; further, she has had a strong personal interest in discrimination law, it would seem from the Claimant’s perspective.  Mr Robinson described the Tribunal’s task as conducting a difficult claim, with a difficult Claimant and advocate.  In our assessment, based on the evidence we have heard and the material which we have read, the Chairman did find the manner in which the Claimant’s case was conducted, both by the Claimant himself and Ms Bamieh, challenging.  We accept that on at least one occasion he put his head in his hands.  That was common ground between the witnesses.  However, we find that action was born of frustration; the Chairman plainly felt that Ms Bamieh was pursuing forensic points, for example in relation to hearsay evidence, admissible before Employment Tribunals, which would not have been admissible, before the 2003 Act, in the criminal courts.  We accept Mr Robinson’s evidence that the Chairman did take a firm line in keeping evidence within the bounds of relevance; it must be remembered that even so the case took twice as long to hear as had been originally estimated.  As to the Chairman’s exasperation with what he saw as a prolix approach by Ms Bamieh, she reacted with the belief that the Chairman wished to humiliate her.  We do not accept that he did but we accept that that was her subjective belief.

23.	Having considered the individual matters raised by the Claimant and Ms Bamieh in this case we can state our conclusion quite shortly.  We are not persuaded that the Chairman’s management of this case, nor comments such as “the phantom manager”; “there has been too much evidence in this case”, that “this is not a criminal court, we can admit evidence of hearsay” or the comment that the decision by Kaz to allow the Claimant’s internal appeal was “not an acquittal” objectively pass the fair-minded observer test such as to give rise to an appearance of bias.  Nor are we persuaded that in the Chambers discussion, convened at the request of the Respondent, the Tribunal did more than permissibly express a provisional view about the case, as envisaged by the Court of Appeal in Jiminez v LB of Southwark [2003] ICR 1176.

Disposal
24.	It follows that we dismiss this remaining ground of appeal and, when taken together with the earlier Preliminary Hearing Judgment, this appeal must be dismissed.