Bell v Belfast Health & Social Care T... [2012] NIFET 00313

THE FAIR EMPLOYMENT TRIBUNAL

CASE REF: 313/03FET

CLAIMANT: Yvonne Marrie Bell

RESPONDENT: Belfast Health & Social Care Trust

DECISION ON REVIEW

The unanimous decision of the Tribunal is that the claimant’s application for a review of the decision issued to the parties on 7 August 2006 on the ground of apparent bias is refused.

Constitution of Tribunal:

President: Miss Eileen McBride

Members: Dr Terry Cradden

Mr Alan Barron

Appearances:

The claimant appeared in person.

The respondent was represented by Mr M Robinson, Barrister-at-Law, instructed by the Directorate of Legal Services.

Reasons

1. The purpose of this Hearing was to determine the claimant’s application for a review of the Tribunal’s decision which was issued to the parties on 7 August 2006 on the ground of perceived bias.

Background to this Review Hearing

2.1 On 28 July 2003, the claimant presented a claim to the Fair Employment Tribunal alleging discrimination on the grounds of religious belief and political opinion against the respondent.

2.2 The case was heard by the Fair Employment Tribunal from 24 to 28 October and 23 to 25 November 2005 and on 7 August 2006 the Tribunal’s unanimous decision dismissing the claimant’s claim was issued to the parties.

2.3 The Chairman of the Fair Employment Tribunal was Petra Sheils and the two lay panel members were Gwen Savage and Jim Barbour.

2.4 On 10 August 2006 the claimant made an application for an appeal and a review of the decision. No allegation of bias was made in that review application. The application for a review was refused by the Chairman on 22 August 2006 on the ground that it had no reasonable prospect of success.

2.5 On 12 September 2006 the claimant made a further application for a review of the Tribunal’s decision on the ground of alleged bias on the part of the lay panel member, Gwen Savage.

2.6 As the further review application was outside the 14 day statutory time limit, a Hearing took place before the same Fair Employment Tribunal on 26 October 2006 to determine whether it was just and equitable to extend the time limit and on 19 December 2006 the Fair Employment Tribunal’s decision refusing to extend the time limit was issued to the parties.

2.7 Prior to this, on 18 September 2006, the claimant lodged her appeal application. The claimant’s appeal contained seven questions. The first question was whether the Fair Employment Tribunal had erred in law by not providing the claimant with “a fair hearing because a member of the panel, whom I was never introduced to, namely Gwen Savage, had been involved in a legal case with me in 1992”.

2.8 On 15 December 2006 the Tribunal stated a case for the opinion of the Court of Appeal. Paragraph 10 of the case stated states that the panel member, Gwen Savage, did not recognise the claimant during the hearing of her case and had no recollection of ever having met or had dealings with the claimant. Paragraph 11 of the case stated states that Gwen Savage “requested her solicitor to check through all his records of the work he did for Gwen Savage and Co Ltd. The solicitor discovered from his records a letter with the appellant’s name on it dated 1994. This record showed ‘No Action’ and the file had been shredded. The solicitor has no recollection of having discussed the contents of the file with Mrs Savage and did not do so when he spoke to her about his discovery. The solicitor has no recollection of having had any dealings with Mrs Savage in connection with the file. The panel member has never seen this file and still has no recollection of ever having had any dealings with the appellant in connection with this file or any other legal or other matter”. On 6 December 2007 the Court of Appeal, having heard counsel on behalf of the claimant and respondent gave an oral judgement in which it:-

(i) substituted the following question for those posed in the claimant’s Case Stated:-

“Whether the Tribunal was in error in refusing to extend the time for the hearing of the review on the basis of the apparent bias of its members?

(ii) answered that question “yes”;

(iii) allowed the appeal on that ground;

(iv) remitted the review application to a differently constituted tribunal to deal with the issue of apparent bias.

2.9 A Case Management Discussion took place on 6 April 2009 before the President to progress the review application to Hearing. There was dispute between the parties with regard to the Court of Appeal’s oral judgment. The Case Management Discussion was therefore adjourned to enable the respondent’s representative to seek a copy of the transcript of the Court of Appeal hearing.

2.10 On 29 June 2009, following receipt of the transcript, a further Case Management Discussion took place to progress the review to Hearing. The President indicated that unless either party objected she proposed to follow the procedure laid down by the Employment Appeal Tribunal in their practice direction of 2008. The procedure provided:-

(i) for the appellant to swear an affidavit setting out full particulars of the allegation of bias relied upon;

(ii) for the affidavit to be sent to the panel member against whom the allegation was made;

(iii) for the panel member to respond to the matters contained in the affidavit; and

(iv) for the Tribunal to take the affidavit and response into account at the Review Hearing.

Neither party objected to this procedure and the claimant indicated that she had already sworn an affidavit on 25 June 2009 which was then sent to Gwen Savage and she responded to it on 27 July 2009.

2.11 The President referred the parties to the penultimate page of the transcript where the former Lord Chief Justice had stated:-

“At the original hearing of her claim, presented to the Fair Employment Tribunal, Mrs Bell was introduced to the members of the Tribunal, but she did not advert to the first name of one of the members, a Mrs Gwen Savage. Subsequently she became aware that Mrs Savage had, indeed, been the Gwen Savage with whom the applicant had some, to put it in its most neutral way, contentious dealings in the past”.

2.12 By correspondence dated 9 July 2009, the parties were notified that the Review Hearing would take place on 7 October 2009.

2.13 By correspondence dated 16 July 2009 the claimant confirmed that she would be able to attend that Hearing. She also stated:-

“However I have written to the Appeals Office at the RSJ Central Office Appeals and Lists Office about the transcript of the Hearing of 6^th December 2007. As I stated to the President at the case management meeting on 29^thJune 2009 there is a serious error in the Lord Chief Justice Sir Brian Kerr’s findings at the end of this transcript which would indicate that I had been introduced to G Savage, when all the evidence both written and oral throughout the hearing stated that I found out her name from the Decision Document from the Tribunal Office and that if the panel had been introduced I missed it.

I have left all the evidence with a letter for the attention of Lord Justice Girvan or Higgins and today it has been left in their chambers for consideration whenever they are next in the Office. I will take advice from the Appeals and Lists Office as to how to go about rectifying the record of the proceedings but I do not envisage that this will take too long and the record should be set straight in time for the hearing on 7^th October.”

2.14 At the outset of the review hearing on 7 October 2009, the claimant repeated what she had stated in her correspondence of 16 July 2009, as set out at paragraph 2.13 above. The claimant also stated that she had tried to sort the matter out with the Court of Appeal and that she had been advised by the Appeal’s Office that “the only way to get this fixed was to get the case reopened” by the Court of Appeal and that she would require a solicitor. The claimant stated that she had applied for emergency legal aid through a solicitor but at the date of the Review Hearing had still not received a response from legal aid. The claimant indicated that she did not want the Review Hearing to be postponed but that if the Tribunal did not accept that the Lord Chief Justice’s summing up in the transcript was incorrect, she had the right to seek a judicial review. Mr Robinson disputed the claimant’s contention that there was an error in the former Lord Chief Justice’s summing up as recorded in the Court of Appeal transcript. However, he submitted that the respondent wanted finality to the review application and that rather than having to face a judicial review application if the Tribunal did not accept the claimant’s contention in relation to the Court of Appeal transcript, they would prefer that the Review Hearing was adjourned to enable any issues the claimant had with the Court of Appeal transcript to be resolved before the Review Hearing proceeded.

2.15 In light of the advice the claimant indicated she had received from the Appeals Office, the fact that she was a litigant in person and had applied for emergency legal aid to have the matter brought back to the Court of Appeal, the Tribunal adjourned the Review Hearing to enable the claimant to speak to and seek advice from her solicitor in relation to that matter. The Tribunal indicated that if, having obtained legal advice, the claimant did not wish to proceed with an application to the Court of Appeal, the Review Hearing would be reconvened as soon as possible thereafter. Alternatively if the claimant, having obtained legal advice, intended to pursue the matter with the Court of Appeal, the Review Hearing would not proceed until that had been done.

2.16 At the Tribunal’s direction, the claimant kept the Tribunal informed of the steps taken by her to have the matter referred back to the Court of Appeal. Those steps included:-

(i) continuous efforts to obtain legal aid to go back to the Court of Appeal;

(ii) an application to the Pro Bono Unit of the Bar Council for assistance which she later withdrew;

(iii) an application to the Law Centre for assistance;

(iv) an application to the Human Rights Body for assistance;

(v) a complaint to the Law Society about the difficulties she was experiencing getting a solicitor to act on her behalf;

(vi) a complaint to the Law Society about a previous solicitor;

(vii) a request for the lay observer for Northern Ireland to investigate the way in which the Law Society had dealt with her complaints;

(viii) a complaint to the Police Service of Northern Ireland about a previous legal team;

(ix) contact with the Office of the First Minister with regard to the length of time the police investigation was taking;

(x) further communication with the Court of Appeal with regard to the reopening of the appeal and a referral of that matter to Mr Wilson MP;

(xi) a complaint to the Police Ombudsman following the findings of the Police Service for Northern Ireland that no criminal offences had been committed by the previous legal team.

2.17 By correspondence dated 22 July 2011 the parties were informed that the Review Hearing would take place in November 2011 unless the claimant had been informed by the Court of Appeal before then that her appeal would be reopened. The Review Hearing took place on 2 and 10 November 2011.

The legal principles

3.1 Harvey on Industrial Relations and Employment Law at Division P1 paragraph 906 states:-

“It is the fundamental right of every person whose rights and liabilities are determined by judicial process to have a fair hearing by an independent and impartial tribunal. This right is now guaranteed, through the Human Rights Act 1998, by the European Convention on Human Rights (see Art 6). Because of the importance attached to the concept of impartiality in the administration of justice, the existence or appearance of bias on the part of any person sitting in a judicial capacity will ordinarily lead to the disqualification of that person from sitting, or, if the proceedings have been concluded, to the hearing being declared a nullity and the decision set aside. These principles apply to the members of an employment tribunal as they do to all other decision-makers in the judicial process.”

It has been made clear by the Employment Appeal Tribunal and the Court of Appeal in a number of cases including University College of Swansea –v- Cornelius (1988) ICR 735, Hamilton –v- GMB (Northern Region) (2007) IRLR 391 and Stansbury –v- Datapulse plc (2004) IRLR 466 that those same principles apply even where the apparent bias is on the part of only one member of the Tribunal and even if that member is a lay panel member.

3.2 In Lawal –v- Northern Spirit Ltd (2003) IRLR538, the House of Lords confirmed that:-

“In determining whether there is bias in terms of the right to a Hearing before an impartial tribunal under Article 6(1) of the European Convention on Human Rights or the common law test of bias, the principle to be applied is that stated in Porter –v- Magill, namely whether a fair-minded and informed observer, having considered the given facts, would conclude that there was a real possibility that the tribunal was biased. The key to this test is public perception of the possibility of unconscious bias.”

3.3 The task, therefore, is for the Tribunal to ascertain all the relevant facts and circumstances which have given rise to the allegation that the lay panel member Gwen Savage was biased and then to ask whether a fair-minded and informed observer, having considered those circumstances would conclude that there was a real possibility that the Tribunal was biased.

3.4 In Locabail –v- Bayfield Properties Ltd & Another (2000) IRLR96, the Court of Appeal stated, at paragraph 25, that:-

“It would be dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias. Everything will depend on the facts, which may include the nature of the issue to be decided. …. We repeat: every application must be decided on the facts and circumstances of the individual case. The greater the passage of time between the event relied on as showing a danger of bias and the case in which the objection is raised, the weaker (other things being equal) the objection will be.”

3.5 In R –v- Jones (2010) NICC39 McCloskey J stated, in relation to a recusal application, that there:-

“will always be a risk in every litigation context that some recusal applications are made on flimsy, though superficially attractive, grounds and are granted without rigorous scrutiny by an overly sensitive and defensive tribunal ….

It is trite that where an application of this kind is made, an asserted risk to the fairness of the trial which is flimsy or fanciful will not suffice. However, the converse proposition applies with equal force. The Court is required to make an evaluative judgment based on all the information available.”

The alleged bias on the part of the lay panel member, Gwen Savage

4. The claimant claimed that:-

4.1 Gwen Savage was personally contacted by her staff about problems the claimant had raised while training in the Newtownards Branch of Gwen Savage and Co Ltd.

4.2 Gwen Savage subsequently intervened in a way that was the direct cause of the claimant loosing a “job placement” at the Stormont Hotel.

4.3 The claimant made a complaint about the conduct of Gwen Savage and Co Ltd to Mr Julian Crozier, the Chief Executive of the Training and Employment Agency, who immediately conducted an investigation into the conduct of Gwen Savage and Co Ltd, as the Training and Employment Agency was the paymaster of the training programmes run by Gwen Savage and Co Ltd. There was a meeting between Gwen Savage and representatives of the Training and Employment Agency during the investigation. Following the investigation the Training and Employment Agency completed a report which criticised the company for being understaffed.

4.4 Gwen Savage had to resolve the problem of the negative report from the Training and Employment Agency and her staff arranged a meeting between the claimant, Gwen Savage and Gwen Savage’s solicitor which took place on 4 November 1992 at the Head Office of Gwen Savage and Co Ltd in Bangor.

4.5 At that meeting Gwen Savage apologised to the claimant, informed her that she had personally taken statements from all the staff involved and offered her a further opportunity to try for a “job placement” at her establishment. When the claimant refused this offer and indicated that she wanted compensation, Gwen Savage suggested compensation for a three month placement. The claimant turned this down as she had been offered a 12 month placement on two occasions. Gwen Savage and the claimant could not agree on the loss the claimant had suffered and Gwen Savage and the claimant agreed that the claimant would get her solicitor to contact Gwen Savage.

4.6 After this meeting Gwen Savage wrote to the claimant summarising the meeting and copied it to the Training and Employment Agency stating that the problem had been resolved and that the claimant had acknowledged that Gwen Savage and Co Ltd had done a lot of good work. The claimant was upset by the letter as she felt that she had been duped into praising Gwen Savage and Co Ltd and she gave it to her solicitor to “take action”, but the letter got lost.

4.7 On 16 September 1994 the claimant’s then solicitor sent a letter before claim to Gwen Savage and Co Ltd seeking an admission of liability and an offer of compensation for alleged negligence and breach of statutory duty in respect of a “loss of job”. A reminder was sent on 15 November 1994 and on 6 December 1994 Gwen Savage and Co Ltd’s solicitor replied indicating that any proceedings would be defended.

4.8 In 1995 the claimant found a witness who was initially prepared to give evidence in support of her proposed claim but then gave “inaccurate information to the claimant’s solicitor”.

4.9 Counsel’s opinion was obtained in July 1996. It advised against the institution of proceedings for evidential reasons.

4.10 Proceedings were not issued and on 9 October 1996 the claimant made a complaint against her then solicitor to the Law Society.

4.11 The claimant obtained a fixed term contract of employment from May 2002 to May 2003 with the respondent. On 28 July 2003 the claimant lodged a claim against the respondent with the Fair Employment Tribunal in which she alleged that she had been given a poor reference by the respondent because she had witnessed racial and sectarian harassment in the office where she worked and had written to the Director of the Trust asking to speak to him about problems at work.

4.12 The claimant’s case was heard from 24 to 28 October 2005 and from 23 to 25 November 2005. The claimant did not recognise Gwen Savage who was one of the panel members. The panel members were not introduced to the parties at the outset or during the Hearing or if they were the claimant missed the introduction as there were delays and quick entrances in and out of the tribunal room.

4.13 Although the claimant did not recognise Gwen Savage, the claimant believed that Gwen Savage would have remembered her in the course of the Hearing because of the complaints the claimant had made about Gwen Savage and Co Ltd to the Training and Employment Agency and because the claimant’s complaint against the respondent had a lot of similarities to her complaint against Gwen Savage and Co Ltd.

5. If the Tribunal had accepted all of the claimant’s contentions without rigorous scrutiny it would have had no difficulty concluding that a well-informed and independent observer would have considered that a real possibility of bias existed. However, the Tribunal, as it is required to do, carried out a rigorous scrutiny of the matters set out below and concluded that many of the actual facts and circumstances differed significantly in a number of respects from the facts and circumstances relied upon by the claimant. The Tribunal also concluded from the facts and circumstances it found that while the claimant’s complaint against Gwen Savage and Co would have had a very significant impact on her, it is likely to have had very little, if any, impact on Gwen Savage. In light of that and the passage of time, the Tribunal concluded that a well-informed and independent observer would not have concluded that there was a real possibility of bias on the part of the Tribunal as a result of the history between the claimant and Gwen Savage.

6. In carrying out a rigorous scrutiny of the history between the claimant and Gwen Savage, the Tribunal considered:

(1) the claimant’s affidavit sworn on 25 June 2009;

(2) the documents provided by the claimant to the Tribunal which included:

(a) the documents which were provided to the claimant by the Training and Employment Agency following her application under the Freedom of Information Act;

(b) the claimant’s diary entries during November 1992;

(c) correspondence from the claimant’s solicitor to Gwen Savage and Co dated 16 September 1994 and 15 November 1994 and from Gwen Savage and Co Ltd’s solicitor to the claimant’s solicitor dated 6 December 1994;

(d) the claimant’s record of a meeting between herself and a potential witness dated 12 January 1995;

(e) the claimant’s note dated 11 July 1996 of a meeting at Gwen Savage and Co Ltd’s Bangor Office on 4 November 1992;

(f) counsel’s opinion dated 17 July 1996;

(g) the Tribunal’s decision dated 7 August 2006;

(h) correspondence dated 24 August and 12 September 2006 from the claimant to the Tribunal;

(i) the Tribunal’s case stated, the order of the Court of Appeal and the transcript of the Hearing dated 6 December 2007;

(j) two medical reports dated 28 August 2008 and 23 June 2009 from Dr Lynch, Consultant Psychiatrist in relation to the claimant;

(k) e-mails from the claimant dated 5 and 6 November 2011 enclosing e-mails of 21 October 2005;

(3) the oral and documentary evidence of Isabelle Armstrong;

(4) the additional documents provided by the respondent to the Tribunal which included:-

(i) the claim and response forms;

(ii) correspondence;

(iii) the claimant’s complaint dated 9 October 1996 against her solicitor to the Law Society;

(5) Gwen Savage’s response to the claimant’s affidavit dated 27 July 2009:-

(6) the Chairman, Petra Sheils’ response to specific questions posed by the Tribunal on the application of the respondent;

(7) the submissions.

7. Having considered those matters the Tribunal concludes that the facts and circumstances relating to the alleged bias on the part of the lay panel member Gwen Savage are as follows.

7.1 Gwen Savage and Co Ltd, which was owned by Gwen Savage between 1983 and 2000, provided training and job training placements at four training centres in Northern Ireland, three of which were at Belfast, Newtownards and Bangor. Trainees continued to receive unemployment benefit during their training placements. Although a job training placement could result in a job opportunity, neither Gwen Savage and Co Ltd nor the Training and Employment Agency provided jobs for the trainees.

7.2 Gwen Savage and Co Ltd put trainees through the various programmes at their four training centres each of which was staffed with senior managers, managers, tutors and administrators who were responsible for the day to day management of trainees. As owner of the company Gwen Savage was not involved in the day to day management of trainees. However, issues or problems arising from the four centres were considered at management meetings which were attended by Gwen Savage.

7.3 In September 1992 the claimant was referred by her Jobcentre to the Belfast Training Centre of Gwen Savage and Co Ltd. That was because the Jobcentre considered that the claimant might have difficulty getting a job as she had been out of work for approximately eleven years raising her family.

7.4 Although the claimant had gained RSAII in typing, information technology and word processing at Technical College, she went to the Belfast branch of Gwen Savage and Co Ltd and explained that she wanted a few weeks work experience. The claimant then spent two weeks at the Belfast Training Centre during which time she underwent an assessment and was shown videos about interview skills and job hunting. The job training programme was explained to her including the fact that three month training placements did not include day release training whereas 12 month training placements did. During those two weeks the claimant was also sent on a job training placement interview which made her realise that she needed more training.

7.5 The claimant was transferred to the Newtownards Training Centre for that training which commenced on 21 September 1992. The claimant was sent for a further interview for a job training placement during her first week at Newtownards. The claimant felt that she had got through the interview a lot better and was devastated when she discovered that she was unsuccessful.

7.6 An interview for a job training placement at the Stormont Hotel was arranged for the claimant during her second week at the Newtownards Training Centre i.e. during the week commencing 28 September 1992. Following that interview the claimant was offered a 12 months job training placement. The claimant informed staff at Gwen Savage and Co Ltd that she only wanted a three months job training placement. The Stormont Hotel were informed of this and they withdrew the offer.

7.7 Having spoken with other trainees, the claimant changed her mind and decided that a 12 month job training placement would be a good career move. The claimant then complained to her tutor that she had not been well advised about the opportunity a 12 month placement would bring and asked for a second interview to be arranged. Gwen Savage and Co Ltd did arrange a further interview for the claimant with the Stormont Hotel. The claimant was again offered a 12 month placement which included day release training with Gwen Savage and Co Ltd.

7.8 On Friday 2 October 1992, the claimant was informed by a member of staff at the Newtownards Office that the Stormont Hotel had wanted the claimant’s day release day to be Tuesday but that that day did not suit Gwen Savage and Co Ltd and her day release day had therefore been changed to Wednesday. The claimant was not happy that the day had been changed without reference to her and complained about this to staff at the Newtownards Office.

7.9 The claimant wished to take a day release course other than the course Gwen Savage and Co Ltd considered she needed to take. When it was confirmed to the claimant on Friday 2 October 1992 that she would be the only trainee doing the other course, she indicated that she would prefer to do this course at her local technical college rather than on her own at Gwen Savage and Co Ltd.

7.10 On Monday 5 October 1992 the claimant telephoned the Training and Employment Agency to complain to Mr Julian Crozier, the Chief Executive, about the treatment she had received from Gwen Savage and Co Ltd. The claimant spoke with Mr Crozier’s personal secretary and indicated that she needed to speak to someone urgently as she had a job placement and wanted to take it up. Mr Carson of the Training and Employment Agency returned the claimant’s telephone call.

7.11 Following this telephone conversation the claimant sent a five page handwritten letter to the Training and Employment Agency. The letter started:-

“I wish to make a complaint about Gwen Savage and Co Ltd who I have just spent a fortnight with at their office in South Street, Newtownards. I have managed to get a job placement through them with the Stormont Hotel, which I start next week, so my hope is that your Department can mediate between myself and Gwen Savage to resolve my problem”.

7.12 The claimant’s letter then referred to matters which are summarised at paragraphs 7.3 - 7.9 above. The claimant’s letter finished:-

“In general I have found the overall way that Newtownards is run leaves no time for individual treatment even though the tutors are competent enough. Had the tutor had the time to sit with me on those three occasions” (i.e. when the claimant inquired about the function of the three buttons on the computer mouse, how to centre a complete page of a task typing a menu and how to indent numbered paragraphs) “she probably could have explained what I needed to know but she always had so many to tend to. Even on Friday when Katrina tried to help me choose a course to come to Gwen Savage she was called away urgently and couldn’t even finish our conversation. So if you think I have reason to complain could you help me to arrange a day release at my local Tech or if I have to go to Gwen Savage can you help me to get them on my side again. I feel they are snubbing me after my first complaint so it will not be very pleasant for me to have to go there as things stand”.

7.13 The claimant claimed that following her complaint to Mr Julian Crozier, the Chief Executive of the Training and Employment Agency:-

(i) Mr Crozier immediately conducted an investigation into the conduct of Gwen Savage and Co Ltd as the Training and Employment Agency was the paymaster of their training programmes;

(ii) there was a meeting between Gwen Savage and representatives of the Training and Employment Agency during the investigation;

(iii) following the investigation the Training and Employment Agency completed a report which criticised the company for being understaffed;

(iv) to deal with the negative report, Gwen Savage got her staff to arrange a meeting between her, the claimant and the company’s solicitor at the Bangor Office on 4 November 1992;

(v) at the meeting Gwen Savage apologised to the claimant for her bad experience, told the claimant that she had personally taken statements from all the staff involved and offered her a further opportunity to try for a job placement through her company;

(vi) the claimant refused this offer and asked for compensation;

(vii) Gwen Savage suggested compensation for a three month job training placement;

(viii) the claimant turned this down because she had been offered a 12 month job training placement on two occasions;

(ix) Gwen Savage and the claimant could not agree on the claimant’s loss; and

(x) Gwen Savage and the claimant agreed that the claimant would get her solicitor to contact Gwen Savage.

7.14 Although the claimant claimed that the Training and Employment Agency had only given her some of the documents relating to her complaint and that she had received the information about the investigation and its outcome from speaking to the Deputy Chief Executive, the documents which were provided to the claimant by the Training and Employment Agency do not support the claimant’s claims. Nor are the claimant’s claims consistent with Gwen Savage’s assertion that in 1993 Mr Crozier recommended her for the award of MBE for her “outstanding contribution to job creation for young people and adults in Northern Ireland”.

7.15 The documents which were provided to the claimant by the Training and Employment Agency indicate that the claimant’s complaint against Gwen Savage and Co Ltd was treated by the Training and Employment Agency as a complaint about the day release course. The documents also indicate that the complaint was dealt with by a member of staff of the Training and Employment Agency below Grade 7 level who contacted staff at Gwen Savage and Co Ltd, not Gwen Savage, to sort the matter out.

7.16. The documents which were provided to the claimant by the Training and Employment Agency indicate that staff at Gwen Savage and Co Ltd discussed the whole matter with Gwen Savage and that Gwen Savage instructed a member of staff to advise the Stormont Hotel that as the claimant did not wish to do their course she could only have a three month job training placement. This instruction did lead to the Stormont Hotel withdrawing the job training placement offer which they had made to the claimant. It could, however, have resolved the issue of the training course if the Stormont Hotel had been prepared to reduce the length of the job training placement from 12 months to three months and if the claimant had accepted that. That is because, unlike a 12 month job training placement, a 3 month training placement did not include day release training.

7.17 The documents which were provided to the claimant by the Training and Employment Agency also indicate that as far as the Training and Employment Agency was concerned, the claimant’s complaint was resolved by staff of Gwen Savage and Co Ltd, not Gwen Savage personally, indicating that they would contact the claimant in the future regarding alternative placement and that if that arrangement was not suitable to the claimant, she could opt to approach another managing agent. In light of that the Tribunal considers that it is likely that that was the purpose of 4 November 1992 meeting at the Bangor Office and that it was conducted by the Bangor Manager who had responsibility for issues relating to trainees and not by Gwen Savage accompanied by the company’s solicitor.

7.18 Although the placement with the Stormont Hotel was described as a “job” in the claimant’s solicitor’s letter of 16 September 1994 and in counsel’s opinion dated 17 July 1996, it is quite clear that the claimant had not been offered a job and had not therefore lost a job. What she had been offered and what she had lost was a 12 months’ job training placement with no guarantee of a job at the end of it. The claimant would have received state benefits, not wages, for the duration of the job training placement. In those circumstances the Tribunal considers that it would have been very unlikely that the claimant would have been offered compensation at the meeting on 4 November 1992. Further:-

(i) if Gwen Savage and the company solicitor had attended that meeting;

(ii) if Gwen Savage had offered the claimant compensation which the claimant considered to be insufficient; and

(iii) if Gwen Savage and the claimant had agreed that the claimant would get her solicitor to contact Gwen Savage about compensation;

the Tribunal considers that it is surprising that the company’s solicitor did not intervene to indicate that he would contact the claimant’s solicitor. It is also surprising that the claimant’s solicitor did not follow up the issue of compensation at any stage during the two year period which elapsed before a letter before claim was sent to Gwen Savage and Co Ltd on 16 September 1994 or that that letter did not refer to the fact that compensation had already been offered. It is even more surprising that the company’s solicitor did not follow this up even if the claimant’s solicitor did not.

7.19 Although the claimant continued to pursue the institution of proceedings against Gwen Savage and Co Ltd until October 1996 when she made a complaint to the Law Society about her solicitor, it is clear that neither Gwen Savage and Co nor Gwen Savage received any further communication by or on behalf of the claimant after November 1994, approximately 11 years before the hearing of the claimant’s case against the respondent.

7.20 The former Lord Chief Justice stated in his summing up of the claimant’s appeal to the Court of Appeal that at the original hearing the claimant “was introduced to the members of the tribunal” but she did not avert to the first name of one of the members, a Mrs Gwen Savage and that “the unchallenged account by” the claimant was “that she was ignorant of the identity of Mrs Savage until a response had been received by her to her inquiry” from the tribunal. Notwithstanding that finding, the Tribunal is satisfied, having considered Ms Sheils’ response to specific questions which were put to her by the Tribunal, upon the application of the respondent, that Ms Sheils did introduce herself and the two lay panel members by their first names as well as their surnames at the outset of the Hearing when the claimant and the respondent’s representative were present. However, the Tribunal considers that the claimant who was a litigant in person, would have been very anxious at the start of the Hearing, particularly if she was suffering from her current medical condition at that time, and that it is therefore possible that the panel members’ names did not register in the claimant’s mind.

8. Having considered the above facts and circumstances, the Tribunal is satisfied that the relevant facts and circumstances are:-

(i) although the claimant referred to staff being very busy in her letter of complaint, the real reason the claimant complained to the Training and Employment Agency was because she wanted the Training and Employment Agency’s help to get her day release training arranged at her local tech rather than, on her own, with Gwen Savage and Co Ltd. Alternatively, if the claimant had to do her training with Gwen Savage and Co Ltd, she wanted the Training and Employment Agency to get the staff of Gwen Savage and Co Ltd, not Gwen Savage, on her side again as she felt that they were snubbing her because of her complaint that she had not been well advised about a 12 month training placement;

(ii) even if the Tribunal is wrong in that finding, the claimant’s letter was not treated or investigated by the Training and Employment Agency as a complaint about the management and staffing levels of Gwen Savage and Co Ltd;

(iii) it did not lead to a meeting between Gwen Savage and representatives of the Training and Employment Agency;

(iv) it did not lead to a report criticising Gwen Savage and Co Ltd;

(v) it did not affect Mr Crozier’s decision to recommend Gwen Savage for an MBE in 1993;

(vi) it was dealt with by a member of the Training and Employment Agency’s staff below Grade 7 and the staff at Gwen Savage and Co who were already dealing with the claimant;

(vii) the only involvement Gwen Savage appears to have had was when it was raised and discussed at a routine management meeting following which Gwen Savage gave an instruction as to how it was to be resolved. Although that instruction led to the placement being withdrawn, if the Stormont Hotel and the claimant had accepted it, it would have ensured that the claimant still received the job training placement without having to undergo day release training at Gwen Savage and Co Ltd;

(viii) once Gwen Savage gave that instruction, she had no further involvement in the matter;

(ix) the claimant met with the Bangor manager to discuss alternative placement, not Gwen Savage and her solicitor;

(x) compensation was neither discussed nor offered to the claimant by either Gwen Savage or Gwen Savage and Co Ltd in October 1992 and although the claimant kept in regular contact with her solicitor, a letter before claim was not sent to Gwen Savage and Co Ltd until 16 September 1994 almost two years after the claimant made her complaint;

(xi) Gwen Savage and Co Ltd’s Solicitor informed the claimant’s solicitor, by letter dated 6 December 1994, that any proceedings would be defended,

(xii) although the claimant believed that she had found a witness who supported her case in January 1995, obtained counsel’s opinion in July 1996 and made a complaint about her solicitor to the Law Society in October 1996, proceedings were never instituted and no further communication was made to Gwen Savage and Co Ltd after 1994.

9. The Tribunal noted that, in her response to the claimant’s affidavit, Gwen Savage stated that she had withdrawn from Tribunal Hearings on two occasions in the past because she considered that she had a conflict.

10. As set out at paragraph 5 above, the Tribunal is satisfied that a well-informed and independent observer, who had considered the relevant facts and circumstances found by the Tribunal, would conclude that while the claimant’s complaint against Gwen Savage and Co Ltd would have had a very significant impact on her, it is likely to have had very little, if any, impact for Gwen Savage. The Tribunal is also satisfied that in light of that and in light of the passage of time:-

13 years from the date of the complaint to the date of the Hearing;

11 years from the date of the letter before claim addressed to Gwen Savage and Co Ltd and the date of the Hearing; and

five years from the date when Gwen Savage ceased to own the Company and the date of the Hearing;

a well-informed and independent observer would conclude that Gwen Savage is unlikely to have had any memory of the claimant or her complaint at the Hearing and that there was therefore no real possibility of bias, either conscious or unconscious.

11. The claimant averred in her affidavit that there were similarities between her complaint against Gwen Savage and Co Ltd and her complaint against the respondent which would have caused Gwen Savage to remember the claimant during the course of the Hearing. Having considered the circumstances of the claimant’s complaint against Gwen Savage and Co Ltd, Gwen Savage’s limited involvement in it and the circumstances of her complaint against the respondent, as set out in the previous Tribunal’s decision, the Tribunal does not consider that a well-informed and independent observer would conclude that Gwen Savage would have linked the two cases consciously or unconsciously so as to create a real possibility of bias. Nor does the Tribunal consider that a well-informed and independent observer would conclude from the fact that Gwen Savage made a link between the allegations made by the claimant against her in her review application and the way the claimant had given evidence at the hearing of her claim against the respondent, that there was a real danger of conscious or unconscious bias on the part of Gwen Savage during the Hearing of the claimant’s case against the respondent, which preceded her review application.

12. The claimant’s application for a review of the Tribunal’s decision on the ground of apparent bias is therefore refused.

______________________________________

E McBride CBE

President

Date and place of hearing: 2 and 10 November 2011, Belfast

Date decision recorded in register and issued to parties:

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	Fair Employment Tribunal Northern Ireland Decisions
You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> Bell v Belfast Health & Social Care T... [2012] NIFET 00313_03FET (23 May 2012) URL: http://www.bailii.org/nie/cases/NIFET/2012/313_03FET.html Cite as: [2012] NIFET 313_3FET, [2012] NIFET 00313_03FET

Fair Employment Tribunal Northern Ireland Decisions