Appeal No. EAT/550/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 12th July 1993

	Before

	THE HONOURABLE MR JUSTICE KNOX

	MR T S BATHO

	MR A FERRY MBE

MR J J OXENBURY	APPELLANT

CORAL ENTERTAINMENT LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	COUNCILLOR 
J W TOMPKINS
Representative

	MR JUSTICE KNOX:  This is a preliminary hearing of an appeal by Mr J J Oxenbury from the decision of the Industrial Tribunal sitting at Reading on the 25th and 26th February 1992 when it held that Mr Oxenbury was not unfairly dismissed.

	The period of Mr Oxenbury's employment by the employers, who were the Respondents before the Industrial Tribunal, Coral Entertainment Limited ("Coral"), was from the 17th April 1990 to the 8th February 1991, I take those dates from Mr Oxenbury's Originating Application which he presented on the 8th May 1991.  It is therefore fairly evident that he did not have two years service and that that disqualified the Industrial Tribunal from dealing with an Originating Application claiming relief in respect of unfair dismissal which is what his Originating Application complained of in Box 1, although he used the expression "wrongful dismissal" which refers normally to a contractual breach of contract but that is not a matter within the jurisdiction of the Industrial Tribunal and so the Industrial Tribunal, very reasonably, interpreted it as a complaint of "unfair" as opposed to "wrongful" dismissal.  The jurisdiction of the Tribunal is limited by Section 64 of the Employment Protection (Consolidation) Act 1978 which provides that:
"Subject to subsection (3), section 54 does not apply to the dismissal of an employee from any employment if the employee -

(a)was not continuously employed for a period of not less than two years ending with the effective date of termination"

Subsection (3) provides that:
"Subsection (1) shall not apply to the dismissal of an employee if it is shown that the reason (or, if more than one, the principal reason) for the dismissal was one of those specified in section 58(1)."

and Section 58(1) under the heading:
"Dismissal relating to trade union membership" reads:

". . . the dismissal of an employee by an employer shall be regarded for the purposes of this Part as having been unfair if the reason for it (or, if more than one, the principal reason) was that the employee -

(a)was, or proposed to become, a member of an independent trade union, or

(b)had taken part, or proposed to take part, in the activities of an independent trade union at an appropriate time, or

(c)was not a member of any trade union, or of a particular trade union, or of one of a number of particular trade unions, or had refused or proposed to refuse to become or remain a member."

The Originating Application that was presented by Mr Oxenbury was devoted, in the paragraph that specifies the full details of the complaint, to a fairly detailed account of a difference of opinion that took place on February 8th 1991 when a Mr Austin, who was then Assistant General Manager, insisted that Mr Oxenbury should do certain tasks on a checklist and Mr Oxenbury took the view, and said, that it was impossible for him to do the work of five persons and in any event could not do it since it would necessitate his cleaning the ladies' toilets at a peak time.  It is not necessary to go into the details of that dispute but it is perfectly clear on the face of this Originating Application that there was a difference of opinion, between Mr Austin on the one hand, and Mr Oxenbury on the other, whether Mr Oxenbury could and should comply with the instructions that Mr Austin gave him.  Mr Oxenbury also mentions in his Originating Application that he had an in-house appeal and that, indeed, did happen and the appeal was turned down on the 16th April 1991, and the Originating Application followed.

	When it was lodged with the Industrial Tribunal it was pointed out that there was no jurisdiction because of the two years' service requirement in Section 64, that I have read, and as a result, or following on that information, Mr Oxenbury wrote a letter dated 16th May 1991 to the Secretary of Tribunals in which he said:
"I wish to proceed with my complaint on the following grounds:"

and then he retails how in company with another cleaner employed by Coral he was employed elsewhere in a cleaning capacity and they both applied to join the Transport & General Workers' Union on the 17th January 1991 and that the very next day he received a "Change in Work Schedule" from a Mr Putland which necessitated his leaving the part-time job.  He goes on:
"However, I proceeded with my application to join the Union while my comrade withdrew his.  This culminated in my dismissal while he remained inviolate.

I have full documentary evidence and my Union representative and my Cleaning Supervisor can verify events.  I am therefore confident of proving beyond any reasonable doubt that

(a)The true reason for my dismissal was my application to join a Trade Union and that therefore this dismissal is illegal.

(b)The Management was full cognizant of this fact and that therefore

(c)This explains their reluctance to put forward any other reason for dismissal in writing, however superficial."

The matter then proceeded to a hearing and there are two principal aspects to the appeal before us regarding the hearing.  One concerns the case that has been put forward supported by an affidavit by Mrs Oxenbury, the wife, we take it of Mr Oxenbury, which deals with her having seen the Chairman of the Tribunal meeting one of the witnesses and shaking his hand.  What she actually says in her affidavit is this:
"I recall that on the 25th February 1992" [and that is the first of the two days when the hearing is said to have taken place] "ten minutes prior to going into the hearing, I went into the ladies toilet.  On the way to the toilets I have to pass the waiting room which was being occupied by the Respondents.  There was a gentleman coming out of the waiting room occupied by the Respondents, and he turned round and shook hands with Mr Ballantyne, who is the Director of Coral Entertainments.  I thought he was a part of Coral Entertainments."

and she then goes on and says that she subsequently recognised the Chairman to be the man that she had seen ten minutes prior to the hearing shaking hands with Mr Ballantyne.

	Before us today Mr Oxenbury has been represented by Councillor Tompkins, who has also given us the benefit of his recollections of what occurred on that day, because he was present when the Industrial Tribunal sat.  Unfortunately, he has not sworn an affidavit but he has assured us, and we accept, that he has made a statement, not under oath, in which he says that he saw the Chairman, not before the hearing, but during the mid-day adjournment, seeing Mr Ballantyne, who undoubtedly, was a witness for Coral.  Mrs Oxenbury's affidavit was treated as being material that indicated bias in the hearing by the Tribunal and therefore it was submitted to the Chairman of the Industrial Tribunal for his comments, in accordance with the Practice Direction that this Tribunal has given where there are allegations of bias, for him to say what he had to say regarding Mrs Oxenbury's affidavit and the ground of appeal stated in this connection in the Notice of Appeal which is based on what Mrs Oxenbury says in her affidavit.

	The Chairman of the Industrial Tribunal has written two letters, one after seeing the Notice of Appeal and the other after seeing Mrs Oxenbury's affidavit.  In the first he says this:
"It is completely untrue that I shook hands with Mr Ballantyne prior to the hearing.  I did not know Mr Ballantyne and I had no conversation with him or any other witness.  The first time I saw him and the other witnesses was when they were brought in to the Tribunal room in the usual way."

and then having seen Mrs Oxenbury's affidavit he says this:
"Referring to your letter of 11 November [this is addressed to the Registrar of this Tribunal] with enclosure, [which must have been Mrs Oxenbury's affidavit] I can only assume that Mrs Oxenbury is mistaken in the identity of the person she refers to in paragraph 2 of her affidavit.

I have already said that the first time I ever saw Mr Ballantyne was when he came into Tribunal with the other witnesses and I had no previous knowledge of him.

Moreover I have never been into a waiting room occupied by an applicant or respondent at any venue and I would have neither the wish nor the need to do so.

On the rare occasions when I have recognised one of the parties or witnesses in the Tribunal I have immediately said so at the start of the hearing and asked whether either party had any objection to my sitting."

That is the state of the evidence, to use a rather wide expression, with regard to that aspect of the matter.  The second principal aspect of the matter is that the decision of the Industrial Tribunal is challenged on the main question of whether the principal reason for Mr Oxenbury's dismissal was connected with trade union matters in such a way as to bring the case within Section 58(1) of the 1978 Act. 

	There are also, in the Notice of Appeal, claims that one of the witnesses, in particular Mr Ballantyne, for the respondent employer was guilty of perjury in saying as he did that he had not been aware of Mr Oxenbury's trade union membership.  The factual background to that aspect of the matter is that there was evidence, we are given to understand, led regarding the earlier history of the matter when, on behalf of Mr Oxenbury, it is said that there were conversations, and indeed arguments, between him and the employers' employees, regarding his being able to join a union and that there was a dispute on that head.  That of course is on Mr Oxenbury's side.  Then there followed the occasion when the dismissal occurred on the 8th February 1991, and the Originating Application deals with that without mentioning trade union membership.  Then on the 10th February 1991, two days after the dismissal, Mr Oxenbury wrote in to the Personnel Manager of Coral and in the last sentence of the letter, which was concerned with his desire to appeal against his dismissal by Mr Austin on the 8th February 1991, and was exclusively directed at the impossibility of his doing what he was being asked to do, and that type of question, the last sentence reads:
"In any event, I shall be consulting my Union, the T.G.W.U., for legal advice."

So that there was, for those who cared to read it and remember it, a pretty clear statement that Mr Oxenbury was indeed a member of a trade union.

	We then come to the Industrial Tribunal's hearing and the findings that it made on the question of whether Mr Oxenbury was dismissed as the employers claimed, because of the dispute that occurred on the 8th February, or whether he was dismissed as Mr Oxenbury by his amendment to his Originating Application claimed in the letter that he wrote which I have read dated the 16th May 1991.  The Industrial Tribunal dealt with that issue in this way.  First of all they set out that letter of the 10th February, from which I have read the last sentence, they then go on to say that:
"Mr Ballantyne confirmed to the Tribunal that that sentence did not figure in any way in his decision to uphold Mr Austin's decision.  Moreover, at no time during the appeal hearing, was there any mention by the applicant of his Trade Union membership."

That is the occasion on the 16th April when Mr Oxenbury's appeal was disposed of internally.  The Industrial Tribunal's conclusion was this:
"Having heard the evidence and the contentions of the parties, we have come to the conclusion, first of all, that the main reason for the dismissal of the applicant was for gross misconduct in refusing to comply with instructions."

and then they point out that they have got no jurisdiction under Section 57 to deal with an unfair dismissal.  They then go on to quote Section 58(1), which I need not read again, and they say about that:
"We are unanimous in our finding that the provisions of that section do not apply to this case.  At no time was it suggested by the applicant to his management team, as he now claims, that he had been set up for dismissal because of his trade union membership.  It did not appear at any stage in his originating application (form IT1).  It was not until after it was pointed out to him that a Tribunal did not have jurisdiction because of lack of two years' continuous service, that the matter was first raised with the Tribunal.  We are therefore unanimous in our finding that the applicant was not unfairly dismissed and this application fails."

Now dealing with that aspect of the matter first, so far as this Tribunal is concerned, it is perfectly clear, under Section 136 of the 1978 Act, that our jurisdiction is limited to issues or questions of law that arise in relation to any proceedings before an Industrial Tribunal under the 1978 Act amongst others.  We therefore do not have jurisdiction to deal with questions of fact, subject to the well known qualification that if an Industrial Tribunal reaches a conclusion which no tribunal, properly instructed as to the law, could reach on the evidence before it then although it is, on the face of it, an error of fact that amounts to an error of law which is commonly described by the one word "perversity".  But that does not extend to situations where there is evidence on one side and evidence on another side and the industrial tribunal, as is its function, decides in favour of one or other of those two versions.  Here, it is perfectly clear, that the employers' representatives gave evidence to the effect that, the dismissal was because of the row that broke out between Mr Austin and Mr Oxenbury on the 8th February.  It is equally clear that that was not the way that, at the end of the day, Mr Oxenbury saw the matter and that he gave evidence in support of his claim by amendment that he was dismissed because of trade union matters within Section 58(1).  In those circumstances the Industrial Tribunal has the invidious task of deciding which set of evidence to believe and we do not have jurisdiction to interfere with such a conclusion.  It is not a case where there was no evidence upon which the Industrial Tribunal could make the conclusion that it did make and on that score no useful purpose would be served by the appeal going forward to a full hearing.

	So far as the claims of bias are concerned they fall into really two categories.  First of all there is the affidavit evidence from Mrs Oxenbury, and we include under this head the statement by Mr Tompkins, although it was not on affidavit, because it falls into the same general category of material from which it could be found that there was social contact between the Chairman on the one hand and one, at least, of the witnesses of the respondent employers, and an important witness because he was Director and General Manager.  On the other hand there are the very categoric denials of the Chairman, which I have read and do not repeat.  The other category is that it was said to us in support of the appeal, and indeed there are passages in the skeleton argument that was lodged helpfully for us before we heard the appeal, that the hearing was truncated in relation to the asking of questions in relation to trade union matters when Mr Oxenbury was calling his own witnesses as well as himself.

	The general principle in relation to bias is this.  I take this from "Harvey on Industrial Relations and Employment Law"-, Volume 4, Section X, paragraph 187.01 under the heading:
"Duty of Tribunal to act fairly

It is a fundamental principle of industrial tribunals, as of courts of law, that not only must justice be done but it must be manifestly be seen to be done.  Accordingly, as the EAT emphasised in Peter Simper & Co Ltd v. Cooke [1986] IRLR 19, `not only must there be no bias on the part of the tribunal but also the tribunal must not give the appearance of bias.'

Proving actual bias, however, is inevitably difficult, and it will only be in very rare and exceptional circumstances that a party will be able to establish the existence of such a prejudiced or biased state of mind on the part of one or more of the members of the tribunal as to cause the EAT to intervene and order a re-hearing.

Allegations of apparent or potential bias, on the other hand, are comparatively, more easily sustainable, for here the test is a purely objective one.  The circumstances giving rise to such allegations may be considered under two headings:  the membership of the particular tribunal hearing the case, and the conduct of the members during the course of the hearing."

Then those two categories are dealt with in more detail in the text books.  They are concerned principally with the necessity for members to disclose connections with the case that they are proposing to try and the circumstances in which they can properly be asked to stand down as being disqualified, and on conduct of members during the hearing. The test that the Employment Appeal Tribunal proposed was this in Peter Simper & Co Ltd v. Cooke supra at 21:
"Would the reasonable observer present at the hearing, not being a party, or associated with a party, gain the impression of bias.  That impression 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."

That was taken from a case where there was a very strong case of biased conduct by the Tribunal which was, in fact, concurred in on a factual basis, by the advocates on both sides.

	This is a case which is not entirely in line with either of those categories of case, more especially in relation to the matter in Mrs Oxenbury's affidavit and Mr Tompkins' statement.  We have given careful consideration to this aspect of the matter but we have reached the conclusion that this Tribunal is in no worse position than a tribunal at a full hearing would be and that there is, of course, no question of its being possible for there to be an oral hearing with witnesses on either side when this Tribunal, if that were a feasible form of procedure, could make its mind up as to whether or not Mrs Oxenbury was, for example, mistaken in her identification and similarly with Mr Tompkins.  The tribunal hearing a full appeal, if there was one, would be in exactly the same dilemma as we are and it is no good blinking the fact that it is an embarrassing situation for this Tribunal.  We have come to the conclusion that the material that is before us, Mrs Oxenbury's affidavit, and we take into account Mr Tompkins' statement, is not sufficient to warrant our coming to the conclusion that there is an arguable case here of bias, or apparent bias, on the part of the Industrial Tribunal such as to render it possible for there to be a re-hearing.  It is not a satisfactory situation because this Tribunal has to work with imperfect materials but when one takes into account the nature of the allegations that are made and the very forthright denial by the Chairman and the inherent improbability of the Chairman of the Tribunal being mixed up with witnesses other than, possibly in a very temporary and ephemeral social contact, the case as a whole seems to us to fall a very long way short of establishing bias, or appearance of bias, which to an independent observer would satisfy the tests that I have read from earlier decisions.  On that score we do not think that this appeal should go forward.

	The same conclusion applies, in our view, in relation to the claim that was made in argument to us that Mr Oxenbury was prevented from questioning his witnesses fully.  This is not a matter which has been gone into in any sort of detail in the affidavit evidence that is before us so the evidence is inadequate to support a successful appeal.  Nor is it included in the Notice of Appeal.  We can well see that there was material for there to be misunderstanding in relation to the admissibility of evidence, in that, there was a not entirely straight-forward question, how far the fairness or unfairness of Mr Oxenbury's dismissal was capable of impinging on the only question that really required trying, namely was the dismissal, either for its sole reason or principal reason, based on Mr Oxenbury's trade union membership.  It is not beyond argument that the unfairness, if it was such of the dismissal, might be a factor in coming to a conclusion, if that was what the Tribunal did, which of course it did not, that there was a trumped up reason for dismissing Mr Oxenbury.  So there is room for differences of view as to admissibility of evidence.  Mr Oxenbury is not, so far as we are aware, a professional lawyer, and may or may not have had full appreciation of the subtleties of leading questions and it was to leading questions that we are told that the Chairman objected, and indeed leading questions are objectionable.  Whether the questions were in fact leading or not we have quite insufficient material before us to attempt to decide.

	For all those reasons we have reached the conclusion that it would do Mr Oxenbury no useful service for this to go forward to a full appeal and we dismiss this appeal at this stage.