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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Zahedi v McGee [1995] UKEAT 465_94_1206 (12 June 1995) URL: http://www.bailii.org/uk/cases/UKEAT/1995/465_94_1206.html Cite as: [1995] UKEAT 465_94_1206 |
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At the Tribunal
HIS HONOUR JUDGE SMITH Q.C.
MR R JACKSON
DR P D WICKENS OBE
JUDGMENT
Revised
APPEARANCES
For the Appellant MR THOMAS LINDEN
(of Counsel)
Messrs Humphreys & Co.
Solicitors
14 King Street
Bristol
BS1 4EF
For the Respondent MR MARK DENCER
(of Counsel)
Messrs Grey & Co.
Solicitors
104 High Street
Nailsea
Bristol
BS19 1AH
JUDGE SMITH Q.C.: This is an appeal by the respondent employer before the Industrial Tribunal, Mr Zahedi, against the decision of an Industrial Tribunal sitting at Bristol on 27th January 1994 when the Industrial Tribunal decided that the applicant employee Mr McGee had been unfairly dismissed by Mr Zahedi and awarded him compensation in the sum of £9,541.50. The Chairman of the Industrial Tribunal was a solicitor, Mr J D Bedford.
I should say straight away that the appeal raises unusually an issue as to whether there was a real danger that the Chairman of the Tribunal, Mr Bedford, might be biased against the appellant, in the sense that viewed objectively against the relevant factual circumstances some reasonable person would believe he might be biased. We stress at the outset that there was no suggestion whatsoever of course of any actual bias on the part of Mr Bedford, and we are wholly satisfied that Mr Bedford acted entirely properly in all respects. We will return to this issue shortly.
Mr Zahedi was the proprietor and legal owner of the Wraxall House Hotel in Bristol and Mr McGee was appointed as General Manager on 30th October 1990. By the beginning of 1993 the hotel was in considerable financial difficulty and had called in a firm of accountants, Messrs Grant Thornton, to report on the situation. The key relevant recommendation of the accountants, according to the findings of the Industrial Tribunal, was that the hotel could not afford the services of a full-time general manager. Their recommendation was that all that was needed was a part-time outside consultancy firm together with a duty manager. Putting the matter shortly, on the findings of the Industrial Tribunal this proposal was implemented with effect from 2nd August 1993 when Mr McGee's contract of employment was terminated. Since that date the Industrial Tribunal found that the consultants had carried out the management functions satisfactorily by visiting two days a week. The Industrial Tribunal held that the principal reason for the dismissal was redundancy, but that the dismissal was unfair due to the lack of any warning being given and more particularly, as the Industrial Tribunal found, due to a lack of any consultation with Mr McGee.
It is important to record that the Industrial Tribunal had to resolve conflicts of evidence between Mr Zahedi and Mr McGee. Thus in paragraph 5 and again in paragraph 8 of the Full Reasons the Industrial Tribunal stated that it had been faced with a conflict of evidence or "a complete conflict of evidence", as it put it, between the parties. In particular, there was an important dispute as to whether or not Mrs Zahedi had warned Mr McGee of the impending redundancy in the course of a meeting on 19th July 1993. It is clear from the Industrial Tribunal's decision that the Industrial Tribunal rejected Mr Zahedi's evidence on this issue, and preferred the evidence of Mr McGee.
Having decided that the dismissal was procedurally unfair due to lack of warning and consultation, the Industrial Tribunal went on in paragraph 15 to deal with the question as to whether consultation would have made any difference. It is submitted as a second ground of appeal before us by Counsel for the appellant, Mr Linden, that the Industrial Tribunal's findings were seriously flawed and inadequate in this regard, and amounted to a misapplication of the two stage test in Polkey or alternatively were perverse. Whereas it was the submission of Counsel for the respondent, Mr Denser, with regard to this issue, that the Industrial Tribunal's decision in paragraph 15 of its Full Reasons was within the band of a reasonable response or decision relating to what was, at the end of the day, a question of fact.
For reasons which will appear later in this judgment, we do not consider it necessary to decide that particular issue, and we should stress that we have done no more than summarise the respective submissions of Counsel in that regard on the difficult issue of the two stage Polkey test, and the "any difference" issue.
We must now return straightaway to the first and main ground of this appeal which we repeat is a submission that the Chairman, Mr Bedford, either should have disqualified himself from continuing to act as Chairman once he was alerted to a particular state of affairs that might give rise an appearance of bias one way or the other, or at least once so alerted that he should have invited objections from each side to his continuing to sit and to have acceded to any objection then raised against his continuing to sit by the appellant Mr Zahedi.
Mr Denser, Counsel for the respondent, in a very realistic submission to us by way of answer to the argument addressed to us in relation to bias, accepts that it would have been "best practice" for the Chairman to have brought the matter which had arisen to the attention of both parties. But his submission was that it does not lie in the mouth of the appellant, Mr Zahedi, now to complain, because he submits we should construe what happened as an attempt by Mr Zahedi to button-hole the Chairman during the short adjournment at the Bristol Industrial Tribunal and impress upon him the fact that he, the Chairman, had acted for him in the past as a solicitor and had met him socially, with a view to currying favour with the Chairman and thus stealing an unfair advantage on the respondent Mr McGee.
Counsel for the appellant, Mr Linden, submitted in response that there is no evidence in support of this interpretation of events. He submitted that the circumstances were equally if not more consistent with an accidental meeting during the short adjournment, when Mr Zahedi bumped into the Chairman quite innocently and sought to remind him of their earlier connection and dealings with one another.
Although it may be repetitious, we find it proper and necessary for us to preface everything we have to say about this unfortunate matter by placing on record our firm conclusion that there was not a hint of actual bias in the decision, and in addition our conclusion that Mr Bedford should be acquitted of all blame in the matter since we readily accept that a busy solicitor from a large firm may well not remember a particular client, let alone the matters which he or his firm have dealt with on behalf of that client. We also note and commend Mr Bedford's ready acceptance that he should have raised his conversation with the appellant with the parties at the resumption of the hearing before the Industrial Tribunal.
We have carefully considered the decision of the House of Lords in the case R v Gough [1993] 2 WLR 724, and the principles laid down in that important and authoritative decision, particularly of course, those set out in the speech of Lord Goff of Chieveley at page 737 as follows:
"In conclusion, I wish to express my understanding of the law as follows. I think it possible and desirable, that the same test should be applicable in all cases or apparent bias, whether concerned with justices or members of other inferior tribunals, or with jurors or without arbitrators. Likewise I consider that, in cases concerned with jurors, the same test should be applied by a judge to whose attention the possibility of bias on the part of a juror has been drawn in the course of a trial, and by the Court of Appeal when it considers such a question on appeal. Furthermore I think it unnecessary, in formulating the appropriate test to require that the court should look at the matter through the eyes of a reasonable man, because the court in cases such as these personifies the reasonable man; and in any event the court has first to ascertain the relevant circumstances from the available evidence, knowledge of which would not necessarily be available to an observer in court at the relevant time. Finally, for the avoidance of doubt, I prefer to state the test in terms of real danger rather than real likelihood, to ensure that the court is thinking in terms of possibility rather than probability of bias. Accordingly, having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of the party to the issue under consideration by him; ...."
And then the learned Law Lord goes on to deal with the special position of clerk to magistrates, a justices clerk, which I need not read.
We have carefully taken into account that principle and attempted to apply it to the best of our ability, and we have also been assisted by decisions of this Appeal Tribunal in regard to apparent bias in the case of members sitting on an Industrial Tribunal, namely University College of Swansea v Cornelius [1988] ICR 735, and the decision of Halford v Sharples [1992] ICR 146. In regard to the latter authority we have derived particular assistance from the way in which the then President of this Tribunal, Wood J, at the bottom of page 170 and the top of page 171 dealt with the principle at issue namely:
" It is common ground between both sides that the proper approach to the issue of bias is that justice must not only be done but must be manifestly seen to be done. There must be no appearance of bias. The test is a question of mixed and law; would the reasonable and disinterested observer present at the hearing, not being a party or associated with a party to the proceedings, but knowing the issues, reasonably gain the impression of bias? The reasonable and disinterested lay observer has been likened in other aspects of the law to "the man on the Clapham omnibus" or the "officious bystander.""
We do not believe that this analysis differs in any way from the subsequent authoritative principle set out by Lord Goff in the leading decision of R v Gough. We do not regard it as necessary to set out the relevant circumstances here in any detail, since they are largely common ground, and are nearly all to be found in a lengthy affidavit sworn by the appellant on 13th October 1994 in compliance with the direction made by this Employment Appeal Tribunal on 27th September 1994. We have also borne in mind the Chairman's careful comments on that affidavit and on the Notice of Appeal which are contained in the bundle before us. Suffice it to say that the evidence includes the following relevant circumstances as we regard them as being:
We cannot emphasise too strongly that we are in no way concerned with the rights and wrongs of those disputes. However, it is a matter of record that fairly strong words were used on each side.
In addition to the above circumstances which we have mentioned and which we regard as relevant, we are satisfied on the evidence that there was an accidental meeting between the appellant and the Chairman in the lavatory at the Industrial Tribunal, during the short adjournment at Bristol, during which the appellant sought to remind the Chairman of the fact that they knew one another, and that the Chairman had acted for him in the relationship of solicitor and client in the past. We cannot, contrary to the submission of the respondent, attribute any sinister motive on the part of the appellant to that encounter on the evidence before us.
In those circumstances we have reached the unanimous conclusion that the continued sitting by Mr Bedford as Chairman, did give rise to a real danger of bias, so that we should not allow the decision of the Industrial Tribunal to stand.
In our judgment, a reasonable man or disinterested observer present at the hearing, knowing the facts we have mentioned, would have gained the impression of bias. He would reasonably have thought that the Chairman, as a solicitor whose firm had dealt with the affairs of the appellant over some years, might have gained an adverse view of the honesty and credibility of the appellant, and so might well have come to regard with disfavour his case on the disputed issues of fact before the Tribunal. We appreciate of course that normally it might well be said that, far from being biased against his past client, a solicitor/judge might well regard his client/party's case with unfair favour, unfair that is to say the other side. But in the unusual circumstances here, which we have sought to outline above, we have concluded that there is material, which when viewed objectively by the disinterested observer, would have caused him to gain the impression of a bias which might operate against the appellant.
Accordingly, we do not consider it necessary or appropriate to make any finding on the second ground of appeal. We do repeat however, what we have said in argument, namely, that there appears to us to be a great deal to be said for the decision of the Industrial Tribunal that the dismissal was unfair due to lack of consultation, and, on the other hand, a very considerable force in the submission of the appellant that the reality may be that consultation would have made no difference to the outcome in all the circumstances. However, all those matters will have to be considered afresh in the light of our judgment by a differently constituted Tribunal. Nothing we say should influence one way or the other, of course, their decision on the matters which fall to be argued in due course before them. For those reasons we allow the appeal, and remit this particular matter to be retried before a fresh Tribunal.
We also recommend that this matter be heard as early as possible.
A joint application for legal aid taxation for the respective parties was granted.