Appeal No.	 EAT/435/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 May 1999

Before
THE HONOURABLE MR JUSTICE LINDSAY
MR J C SHRIGLEY
MR P M SMITH

HUNTINGDON LIFE SCIENCES LTD	APPELLANTS

MR L KIRKBY	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR P OLDHAM
(of Counsel)
Eversheds
Fitzalan House
Fitzalan Road
Cardiff CF2 1XZ	
For the Respondent	MR J GALBRAITH-MARTEN
(of Counsel)
John Kirkpatrick & Co
24 High Street
Huntingdon
Cambridgeshire
PE18 6TA	

	MR JUSTICE LINDSAY:     We have before us as the hearing of the full appeal the appeal of Huntingdon Life Sciences Ltd in the matter Mr L. Kirkby against Huntingdon Life Sciences Ltd.

	There was a three-day hearing on 10, 11 and 12 December 1997 before the Employment Tribunal at Bury St Edmunds, under the chairmanship of Mr C.R. Ash.  Both sides were legally represented at that hearing.  There was Counsel, Mr Galbraith-Marten, who has also appeared before us today, for Mr Kirkby, and Mrs Williams, a Solicitor, for Huntingdon Life Sciences Ltd.  She is a partner in Eversheds and both those advisers are advisers of experience in the employment field and it is accepted that Mr Ash, the Chairman, is also an experienced Chairman.

	The decision was that:

“1.  The applicant was unfairly dismissed.
2.  The respondent company is ordered to pay to the applicant total compensation in the sum of £15,815.00.
3.  The applicant’s application for costs against the respondent is dismissed.”

	There is a cross-appeal as to that position on costs but we have not yet heard argument on that and leave that for later.  Extended Reasons were given and as the appeal, as will later appear, is largely related to procedure, and in particular the procedure deployed at the hearing, then we do not need to say all that much about the factual background but even so the scene needs to be set.  

	The position is that the Respondent Company below, Huntingdon, operates laboratories and it tests, inter alia, the effect of drugs and pharmaceuticals on live animals.  That is a business which nowadays excites strong and even violent antipathy amongst some.  Mr Kirkby was the head of one of its dog units.  The company had been infiltrated (if that is the right description) by a journalist and film maker and both a channel 4 film and a Guardian article appeared, both hostile to the company.  The film showed incidents distressing to many viewers in terms of indicating cruelty to animals.  There was a programme called “It’s a Dog’s Life”.  There was, either in the film or the article or both, some publicity as to an incident in which a dog was punched, though not, we hasten to add, by Mr Kirkby.

	The company convened an internal investigation under the chairmanship of a gentleman variously described as Dr Ross and Mr Ross and it received statements from a number of technicians and it concluded that there had, indeed, been cruelty to dogs by a Mr Robert Waters, another employee, but one who was under Mr Kirkby’s supervision.  Malpractice as to capsule preparation and intravenous dosing was also held to have occurred.  As to the results of that internal investigation by Mr or Dr Ross, the Tribunal, which had the full findings of the Ross enquiry before them, described the outcome as follows, at paragraphs 11 and 12:

“11  The applicant was employed as head of one of the company’s dog units.  As a result of the undercover filming of the documentary by a reporter (Zoe Broughton), who gained employment as a technician, an investigation was carried out by a team under the chairmanship of Mr Ross.  Its full findings are set out [and some page references are given].  The finding in respect of the applicant[Mr Kirkby] in so far as they are relevant were:
‘Len (the applicant) denies the allegations regarding the irregularities in capsule preparations.  Sufficient evidence of persistent fraudulent practices within his team were uncovered during the investigation to warrant further urgent investigation and action.
In Len’s favour, when he became aware of Robert having lost his temper, he promptly dealt with Robert in private’.
12  Mr Ross further concluded that there was some evidence of insufficient line management control and supervision.”

	It is important to notice that further urgent investigation was suggested into Mr Kirkby’s position by that Ross enquiry, not that Mr Kirkby had already been found to be at any serious fault.  The company carried out some further interviews, including one with Mr David Fowler, who was Mr Kirkby’s immediate superior and there had, it seems, been earlier irregularities in the conduct of one or more members of Mr Kirkby’s team but not, it seems, by Mr Kirkby himself.

	Mr Galbraith-Marten tells us, without dissent from Mr Oldham, who has appeared for the company, that it was conceded that so far as concerns Mr Kirkby, after Mr Ross’ enquiry there was no further investigation before the procedural matter against him began.

	The conclusion of the Employment Tribunal, moving further forward, is in their paragraph 14:

“Having heard the applicant’s evidence on this point we are satisfied that the applicant did indeed take steps to tell members of his team that they should take care to weigh all capsules in accordance with the regulations.  There was no evidence then, or at the time of the applicant’s dismissal, or since, that in fact there were any irregularities.”

	However, Mr Kirkby was called to a disciplinary interview and as to that I will read out the conclusions in paragraphs 16, 17 and 18 of the Tribunal’s Extended Reasons which were as follows:

“16.  On 4 April 1997 the applicant was called to a disciplinary interview chaired by Mr Clark, the Director of Toxicology.  He was not told in advance of any specific charges; he had no sight of or knowledge of the various witness statements taken by Mr Ross’s team.  He did not see the latter’s report or know of its conclusions.  The approach of Mr Clark is encapsulated towards the start of the interview where he is recorded, accurately, as saying to the applicant in response to the request ‘please identify the mismanagement’: -
‘You are a senior member of staff, you are in a responsible position, you have worked for HLS for many years.  The goings on on the video were unacceptable practice and this included the fact that you were not managing your staff properly as you know about these issues.  For example the dog handling and the falsification of data’.
17.  The applicant denied knowledge save and in so far as he had spoken to Waters after he had been informed of the dog punching incident.  No attempt was made to establish exactly what the applicant had been told about the incident in question.  Further on in the interview Mr Clark states:
‘Mistakes are made - but cannot condone covering up mistakes.  If as a manager you felt that any question about the validity of the data you are duty bound to investigate and if proved, to take action to stop it happening.  You are not coming across to prove that you did anything to stop the practice’.
18.  In response to that accusation the applicant pointed out that he did exactly what his manager had asked him to do namely, he was to have a word with his staff because it had come to his managers attention that the practice was taking place.  He was told to tell his technicians that if they were doing it to stop it immediately.  The applicant confirmed he had done that and told them to stop it if it was happening.”

	Mr Clark did not take that response by Mr Kirkby to be adequate.  The Tribunal dealt with that in paragraph 19:

“19.  Mr Clark was not happy with that response and said that the applicant should have raised it with the senior management.  The applicant responded properly, accurately and in our view reasonably, that any further reporting of the incident to higher management should have been done by David Fowler.  There is no evidence in this case that the applicant did anything other than do that which he was asked by his immediate superior.”

	The Tribunal then records common ground.  In their paragraph 20 they say:

“It is common ground in this case that there was no concrete evidence of mis-weighing of the capsules ever found.  Further it is common ground that Fowler, who was the applicant’s manager, never asked the applicant to report back to him.”

	It had not been said that Mr Kirkby had failed to observe any company specified procedure.  In their paragraph 21 the Tribunal says:

“The applicant’s method of dealing with what was so far as he was aware an isolated incident of cruelty was not contrary to any laid down guidance or procedure - indeed there do not appear to be any procedures.  Further, Mr Fowler was not dismissed.”

	The Tribunal took a poor view of Mr Clark’s evidence.  They said in their paragraph 24:

“Taking the interview as a whole together with Mr Clark’s oral evidence and his witness statement we are satisfied that Mr Clark had decided before the hearing that the applicant had to be dismissed following the adverse publicity generated by the undercover documentary.  The applicant is right, he was indeed made a scapegoat.”

	The Tribunal held:

“We are satisfied in the above circumstances that the respondents have not established on the balance of probabilities a reason that could be fair pursuant to Sections 98(1) and 98(2) of the Employment Rights Act 1996.”

	There had been a disciplinary appeal but, as to that, the Tribunal held, in their paragraph 27:

“The appeal did nothing to redress the blatant failings of the dismissal procedure and Mr Clark’s findings.”

	They went on:

“There was no adequate investigation on this matter beyond the initial investigation of Mr Ross which said that there needed to be further in-depth investigation.  There was no proper formulation of the allegations.  At no stage did Mr Clark other than by assertion indicate what exactly were the applicant’s management functions, if any, and how they over-lapped or knitted in with those of Mr Fowler.  We are satisfied that Mr Clark’s mind was made up in advance of the hearing.  There is an overwhelming disparity with the way that Mr Fowler, a more senior manager was treated.  The assertion that Mr Fowler had shown contrition or remorse unlike the applicant is simply not sustainable; and we are satisfied that Mr Clark did not believe that anyway.”

	Moving on, in paragraph 29 they say:

“Dismissal was not within the range of reasonable responses open to a reasonable employer.”

	And in paragraph 30, they say:

“No account was taken at all of the applicant’s long and trusted service with the respondents.”

	The decision, as we indicated earlier, was promulgated on 30 January 1998 and the Notice of Appeal is dated 12 March 1998 and it is at this point then that the procedural nature of the appeal emerges.  The Notice of Appeal says in its paragraphs 6 and 7:-

“6.  The grounds upon which this appeal is brought is that the Tribunal erred in law in that it misconducted itself in the conduct of the hearing as follows:
(a)  at the close of the Respondent’s case the Tribunal caused an ‘in chambers’ meeting to take place at which only the parties’ legal representatives were allowed to be present;
(b)  in the course of that meeting the Chairman of the Tribunal stated that the Appellant should settle the claim brought by the Respondent;
(c)  the Chairman of the Tribunal went on to state that any decision reached by the Tribunal would be in a public document and would contain extended reasons and that the Tribunal did not wish to create documents that would make unpleasant reading;
(d)  the clear inference from the statement referred to at (c) above was that prior to or at the ‘chambers meeting’ the Tribunal had reached a decision that the dismissal of the Respondent was unfair and that in the event that the Appellant did not settle the claim the Tribunal would be strongly critical of the Appellant in the written reasons for its decision.
7.  In the premises, and each of them:
(a)  the Tribunal reached a decision that the Respondent had been unfairly dismissed prematurely and contrary to the requirements of natural justice and/or its duty fairly to hear the application before it;
(b)  the Tribunal unlawfully attempted to pressurise the Appellant to settle the Respondent’s claim, and did so prior to hearing all the evidence in the application;
(c)  the Tribunal misconducted itself in the course of the proceedings by causing the ‘in chambers’ meeting to be held and expressing its conclusions as to the merits of the application before it in the absence of the parties.”

	In support of the line of attack which the Notice of Appeal indicates (and, broadly speaking, it is those lines of attack which Mr Oldham had developed), there is an affidavit from Mrs Williams whom we mentioned earlier, the Solicitor acting for Huntingdon at the hearing below.  As is common when the fact of dismissal is undisputed, the employer’s side, the Huntingdon side, had given evidence first in this case.  The only claim in this case was one of unfair dismissal.  Accordingly, it had been for the employer to show the reason or the principal reason for the dismissals - section 98(1)(a) of the 1996 Act - and so far as relevant, to show that such reason related to the conduct of Mr Kirkby: section 98(2)(b).  Then the question would be whether the company acted reasonably in treating that shown reason as a sufficient reason for dismissing Mr Kirkby, having regard to equity and the substantial merits of the case: section 98(4).  Moreover, as this was a conduct case, the well known test formulated in the familiar case of Burchell needed to be satisfied - Did the company actually believe that there had been the misconduct on which it was relying?  Was that belief sustained by conclusions drawn from a reasonable investigation?  It was in the light of such burdens being at least in part on the company, that it was very sensible and, indeed, usual that the company should have (so to speak) gone first, as it did.

	Coming to Mrs Williams’ affidavit, it says in its paragraph 3:

“Following the close of the Respondent’s evidence at about 12 noon on 11th December 1997 the Chairman of the Tribunal requested the parties legal representatives to a meeting ‘in chambers’.  Apart from the members of the Tribunal those present at the meeting were me, Ian Cadogan an assistant solicitor with Eversheds in Cardiff who was assisting me at the hearing, Jason Galbraith-Marten, Counsel appearing on behalf of Mr Kirkby and his instructing solicitor, Julian Kirkpatrick of John Kirkpatrick & Co.  During the meeting Ian Cadogan took a note of what was said by the Chairman.  A copy of that manuscript note is [and then there is a reference to a typed version].”

	That typed version reads as follows:  

“Transcript of Solicitor’s Handwritten Notes of Chambers Meeting.  
Having heard the evidence so far, we wish to say at this stage, to save time - fair to say we are in Chambers - an indication by our questions, how we feel.  Now is as good a time as any for the parties to talk turkey.
To say the least, we are unhappy with certain aspects of the Respondent’s investigations of the case and management structure - materially - where someone is dismissed for mismanagement.
Not considered arguments of contribution.
We do not know whether recoupment provisions apply.
We do not know whether Applicant looking for reinstatement / re-engagement.
Section 98 - Applicant worked 28 years with nothing to his detriment.  We look at the whole of the appraisals - not just the good.
Decisions of the Industrial Tribunal are contained in a public document.  We will probably give extended reasons, look at the reasons, we do not wish to create documents that make unpleasant reading.
If you can settle, then do.  Take 15 minutes.”

	We also have the employee’s Solicitor’s evidence.  He, too, was there, as Mrs Williams has indicated and his note reads as follows:

“Transcript of Julian Gwinnell Kirkpatrick’s Handwritten Notes of ‘In Chambers Meeting’
MR ASH:
... fair to say, and In Chambers, and not reached any conclusions.  Don’t know if Applicant is to give evidence.  To say the least, we’re unhappy with certain aspects of R’s [Respondent’s] investigations, actions and management structure (whatever that is) and could be highly material.  Apparently been dismissed for mismanagement.
No views re.  any element of contribution.  Don’t know if recoupment provisions apply.
A [Applicant] works for 28 years   nothing to.  Might have to give extended reasons.
Public Tribunal.  We have to go into extended reasons.  No wish to create problems, but if we have to.”

And Mr Kirkpatrick has sworn an affidavit, the only passage from which we need to read is paragraph 6, that says:

“The Appellants’ handwritten Note of the ‘In Chambers Meeting’ is lengthier than mine and accords broadly with my recollection of what was said, save in one particular respect, namely that the Chairman, as is detailed in my Note, made clear from the outset and said in terms that he and the Tribunal ‘had not reached any conclusions’ at this stage.”

	We also have the Chairman’s comments.  The Chairman, Mr Ash, wrote a letter on 14 May (at this stage he had not seen the Williams affidavit but had seen the Notice of Appeal.  He says inter alia:

“It was overwhelmingly obvious by the close of the respondent’s case that on the unchallenged evidence of their own witnesses they had serious problems both procedural and substantive:  Mr Clark was particularly unimpressive.
In such circumstances the Tribunal, and we are very experienced, thought it right, helpful and proper to point out to the respondents representative that in view of the publicity surrounding the case originally they might wish to consider their position.  As is customary where both sides are professionally represented we saw both sides together in chambers.  We make no apology for that.
It is disingenuous to allege that the Tribunal had made it’s mind up in advance.  We considered all the evidence very carefully before reaching our detailed findings after the close of the final submissions.  However we like to think that professional advocates would appreciate an indication at the appropriate time of the impression created by the evidence.  Tribunals often try to spare the blushes of the parties, not to mention time and costs.”

He added:

“It occurs to me, although it may not be a strong point, that if Mrs Williams genuinely thought that we had given the impression of making our minds up in advance by discussing the matter with the representatives in chambers she should have taken the point at the time.  She raised no objection.”

	Later, after there had been a preliminary hearing at the Employment Appeal Tribunal, a further approach was made to the Chairman and he dealt with that on 30 October by a letter and he said inter alia:

“I note that Mr Cadogan’s note is the fuller but does not refer to the express statement by me that we had not reached any conclusions in this matter.  Indeed, I am satisfied that not only would I have said so in terms but would also have gone on to say that we could not reach any conclusions until we have heard all the evidence and listened to the submissions.  We did however make very clear the impression the respondent’s evidence had created with us at that time.  I am satisfied our course of action was a perfectly proper course to adopt in order to save possible time and expense to the parties and as I have said earlier, to say the respondents blushes.
I am also satisfied that it was obvious to any objective observer that the tenets of natural justice were followed at all times.  In so far as it is alleged that the Huntingdon Life Sciences Ltd were not present at the Chambers meeting there was nothing at all to stop Mrs Williams requesting the presence of her lay client had she so wished.  Such a request would have been granted;  indeed it would not have been refused.  It is our experience, that there are occasions when it is easier to speak more constructively in the first instance to the advocates on their own;  such occasions occur from time to time as any person sitting in judicial capacity will know ‘traditional’ Courts and Tribunals.  Mrs Williams knew full well that her clients were not being prejudged and that all we were doing was pointing out the effect the evidence of her own witnesses were having on the Tribunal and the impression uncontested assertions by her witnesses were creating.  It is our experience that advocates are almost invariably, Mrs Williams is the first exception I have come across, grateful for such indications.  Sometimes they lead to settlements and on other occasions, such as this, they do not.  Were Tribunals to be proscribed from exercising its discretion in such matters in my respectful view the system would be very much poorer for it.”

	And then there emerged a point which had not been made earlier, but it is not to be overlooked.  He said:

“I would also point out that at the end of the appellant’s case Counsel for Mr Kirkby made a submission that the appellants had no defence to a finding of unfair dismissal.  We rejected that submission.  It seems to me that the rejection of such a submission sits uneasily with the proposition being advanced that justice was not being seen to be done and that the Tribunal appeared to have made up its mind in advance.  We went on to hear the evidence of Mr Kirkby and consider the submissions of the parties.”

	Mrs Williams is not saying in terms (there is no further affidavit from her) that the Chairman had not said that the Tribunal had not made up its mind and given that and given also that the Chairman and Mr Kirkpatrick say that that had been said, and noting also that Mr Cadogan gives no evidence, we proceed on the basis that the Chairman did indicate that the Tribunal had not, at that stage, reached any conclusion.  That, I think, is accepted by Mr Oldham as the proper basis on which to proceed at this stage.

	Mrs Williams’ affidavit makes the complaints which the company relies upon.  She says:

“With regard to the comments made as to the fact that any written decision which the Tribunal gave would be a public record and the reference to the fact that it would make unpleasant reading, it was clear to me that this was an attempt to persuade the Company to settle Mr Kirkby’s application.”

A little later she says:

“When the Chairman made this comment it was clear to me that he was indicating that if the Company did not settle the claim the written decision of the Tribunal would contain further criticism of the way in which the Company carried out its operations.”

And then she concludes:

“I have been a solicitor for 8 years.  I regularly represent my clients in Industrial Tribunal hearings.  I considered that the comments made by the Chairman during the ‘in chambers’ meeting were both unwarranted and inappropriate.  I was put in an invidious position as the meeting had been conducted in the absence of my clients.  I did repeat to my clients what the Chairman had said since I considered it part of my professional duties.  From that time it was obvious to me that my client lost any faith in the Tribunal’s ability to deal objectively with the issues in the case.”

	We proceed on this basis; that first of all Mrs Williams did not raise any objection at the time in chambers, and that she did not raise any objection at the time in open Tribunal.  She did not ask for any adjournment or stay or ask for an opportunity to consider either of those or to consider an interlocutory appeal.  She did not ask for the matters that had been referred to to be re-visited in open Tribunal.  She did not ask for her client to be represented at the meeting in chambers.  Moreover, we do not read Mrs Williams’ affidavit as suggesting that the Chairman was threatening to make unwarranted or exaggerated criticisms of the company should the matter go to a full hearing and should Extended Reasons require to be given.  No objection seems to have been made at the time that unfair pressure to settle was being put upon the employer company.

	We have in mind, as Mr Galbraith-Marten’s skeleton reminds us on behalf of Mr Kirkby, Rule 9 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993, Schedule 1.  It does appear under the heading “Procedure at Hearing”.  Mr Oldham argues that, strictly speaking, it therefore does not apply to what occurred in chambers.  We do not accept that.  It begins:

“The tribunal shall, so far as it appears to it appropriate, seek to avoid formality in its proceedings [which is a wider term than ‘hearing’] and shall not be bound by any enactment or rule of law relating to the admissibility of evidence in proceedings before the courts of law.  The tribunal shall make such enquiries of persons appearing before it and witnesses as it considers appropriate and shall otherwise conduct the hearing in such manner as it most appropriate for the clarification of the issues before it and generally to the just handling of the proceedings.”

And also one has to see Rule 13 in the same Schedule.  It begins 13(1):

“(1)  Subject to the provisions of these rules, a tribunal may regulate its own procedure.”

Which is obviously a wide provision.

	Mr Oldham draws attention to two unreported cases in the Employment Appeal Tribunal, both before Mr Justice Morison as President, and the first is called Tsontzos v Hilton International Hotel (UK) Ltd.  It is dated 2 December 1997.  Its important to notice that Mr Tsontzos was claiming, inter alia, wrongful dismissal.  In other words, he had a contractual claim as well as a statutory claim.  In a contractual claim it does not suffice for the employer merely to satisfy the Burchell test.  In a contractual case the employer generally (depending, of course, on the contract) has to prove that on the balance of probabilities the particular misconduct that he is relying on did, indeed, occur and moreover that he relied upon that in the dismissal.  In wrongful dismissal cases, that is to say contractual cases, the employee on whom the burden rests often goes first, but in Tsontzos as dismissal was, in fact, admitted and also, perhaps, because unfair dismissal was in play as well as wrongful dismissal, the employer went first.  In Tsontzos at the end of the employer’s evidence there was a meeting in chambers and what the President says as to that is this:

“But what then happened was that the tribunal stopped after the end of the employer’s case and asked to see both parties’ legal representatives.  In the privacy of their room, the parties’ representatives were seen by the tribunal Chairman, and I think the lay members may have been present as well.  During the course of that discussion, the Chairman let it be known that it was the tribunal’s view that it was clear that nothing was likely to be said by the applicant which would alter the fact that as employers, the respondents had conducted themselves properly.  They communicated that information to the legal representatives of the parties in anticipation that that information would then be provided to the lay clients.  That information was effectively, as we understand it, provided to Mr Tsontzos, the applicant.
Not surprisingly, in the light of what he had been told, he believed that there was no point in continuing his applications.  Accordingly, encouraged, no doubt, by his Counsel who had heard what the tribunal had said, he indicated that he would be prepared to withdraw his complaint.”

	It is to be noted that there was some doubt as to whether the whole Tribunal was there in chambers.  There was an unequivocal statement that it was clear that nothing was likely to be said, by the Applicant, which would alter the fact that the Respondents had conducted themselves properly and the fact was relied upon by Mr Tsontzos.  Each of those factors represent a minor difference although, perhaps, not a legal distinction between that case and our case.  But, going on with Tsontzos, the Chairman of the Tribunal was approached, just as the Chairman in our case was, and he wrote a letter that said this:

“6.  ... Although we had not at that point heard evidence from the Applicant counsel had properly put to the Applicant’s case to Ms Mahon through cross-examination.  It was therefore clear from that that nothing was likely to be said by the Applicant which altered the fact that the Respondents as employers had conducted themselves properly.  We all thought that the Applicant was likely to be unsuccessful as his claim was based purely on the fact that he had not in fact acted in the way alleged not that there was no evidence from which the Respondents could reach their view that he had, i.e. it was based on a misunderstanding of meaning of unfair dismissal in law.”

	What that meant is that the Tribunal, in that particular case, having regard to the Burchell test and as to the need for a belief in the misconduct and as to the need for a reasonable investigation, was holding that a claim for unfair dismissal could not succeed in law and that to that extent it was futile for the employee to assert or seek to assert that the misconduct had not, in fact, happened which is what he wanted to go on to do, given that it was the Burchell test and the statutory test at the time that needed to be satisfied, rather than an objective conclusion as to whether the misconduct had, in fact, on a balance of probabilities, not occurred.  As Mr Justice Morison held in that case, the Tribunal in that case had neglected to have in mind that the case was not there one just of unfair dismissal but also of wrongful dismissal.  What he said on page 5 was this;

“But it goes further.  Because the complaints which were being made by the applicant were not just of unfair dismissal, but also of wrongful dismissal.  The test for wrongful dismissal is different from the test for unfair dismissal as this court has recently observed.  In the case of wrongful dismissal, the employer, if he seeks to justify a summary dismissal must establish on the balance of probabilities that the employee committed the acts of misconduct relied upon.  It is clear from the terms of the paragraph of the letter which I have read out, that the tribunal never had that matter in mind.”

	So there was a manifest error of law and that alone would have sufficed to justify the Employment Appeal Tribunal’s conclusion in Tsontzos, namely that the matter should be remitted to a fresh Tribunal.  Moreover, on the facts that were being dealt with in that case, the EAT held that the Tribunal could not have concluded properly as in fact they had concluded.  There are passages on page 4 of the EAT transcript that say this:

“It is axiomatic that justice must not only be done, but be seen to be done.  There may be rare circumstances in which it is appropriate for an Industrial Tribunal to wish to see the parties’ representatives in the absence of the parties themselves.  But it seems to us that this was not an occasion for taking that step.  If the tribunal had anything to say at that stage of the proceedings about their state of mind in relation to the prospects of success, then it was their duty, in our view, to do it to the parties themselves in the presence of their representatives.”

And on the particular facts of the case, the EAT said:

“It could not have been clear to the Industrial Tribunal from the cross-examination that nothing was likely to be said by the applicant which altered the fact that the respondents as employers had conducted themselves properly.
The applicant in his IT1 was launching an assault upon the whole of his employer’s case.  He was saying that he had not done the specific act complained of;  that somebody in the employer’s organisation had forged a document;  he was saying that in so far as monies were taken on top of the handling charge, that was a regular feature and practice of those who were in the concierge department of the Hilton Hotel Group;  and until the Industrial Tribunal had heard his case and his witnesses, if any he might have to call, they were not and should not have been in a position to form any judgment about the prospects of success of the unfair dismissal complaint.
Accordingly, it seems to us, that the Industrial Tribunal have technically misconducted themselves in this case.”

	There is, of course, a considerable difference between saying, after hearing a party, “Given your evidence, you cannot succeed”, on the one hand and saying, even before the opposition is heard, “In no material respect can your evidence be harmed by whatever the opposition says”, which is what the case was in Tsontzos.  If, in Tsontzos, Mr Tsontzos had shown that the employer had forged a document and that he was, in any event, only doing as was commonly done in that industry or in the course of employment by that employer, then that must necessarily have weakened the employer’s case as to his having acted within the band of reasonable responses.  As Mr Galbraith-Marten points out, in Tsontzos the Industrial Tribunal heard one party’s case and then decided against the other.  Very different is our case where the party against whom the decision went finally and against whom, if Mrs Williams is right, there was a provisional view taken, had already given its evidence in full.  We have no need to say that on its facts Tsontzos is wrong but we do say that it is distinguishable for the reasons that we have given.  So far as it contains general observations, we note that it does not purport to lay down any general rule such as altogether to preclude a Tribunal calling parties into chambers in any circumstances.  I have already read the passage that begins:  “It is axiomatic” and so on.  The observation in that passage - as to what was the Employment Tribunal’s duty - relates only, as we see it, to the position as it had been in that particular case and on the facts of that particular case.  No authority is given for any elevation from what is desirable conduct on the facts of a particular case to an immutable duty, if it is suggested that such was intended, such that no Tribunal could in any circumstances call in the representatives to a party, short of the position as it would be at the end of the whole of the evidence.  Mr Justice Morison did not seem to have in mind any such immutable duty.  He indicated a general preference and, indeed, that seems to be the case as it was explained later in another case we shall come on to.  Tsontzos was in December 1997.  In February 1999 there was another case before the President:  Alleyne v London Underground Ltd.  There the position was that Ms Alleyne’s adviser was advised by the Industrial Tribunal that she had no prospect of succeeding and that a costs order might be made or could be made against her if she went on.  Looking at the general observations in the case, the EAT said on page 7 of the transcript:

“On the other hand, where the issue before the Industrial Tribunal is whether a dismissal has been proved, whether in the context of an unfair dismissal pure and simple or an unlawful unfair dismissal on grounds of sex or race, it seems to us to be open to an Industrial Tribunal to give an indication at the close of the applicant’s evidence that they are unlikely to be satisfied that a dismissal has been proved.  The burden of proving a dismissal in such a case falls upon the applicant.  Thereafter, it seems to us a question of fact and degree as to whether the tribunal could legitimately be said to have been putting unfair or undue pressure on the applicant so as to cause her to withdraw her case.
Both parties were represented.  It appears from the Chairman’s letter that both representatives were asked to see the members of the tribunal ‘in camera’.  I assume that that is a reference to seeing the representatives without either of the clients or their witnesses being present.  This is a practice which can easily lead to dispute about what was actually said and to a feeling of unfairness in the minds of the parties who were not present.  The general rule [notice this] must always be that it is better for the tribunal to have such discussions in the presence of the parties rather than in their absence.”

	So, even if (which we doubt) there had been intended in Tsontzos to be some invariable duty suggested to exist, well then, by now it has become merely a general rule.  And a little later in Alleyne the President says:

“It is, we think, perfectly possible for an Industrial Tribunal properly to give an appropriate indication of the way its mind is currently working provided it is made absolutely plain that the tribunal retains an open mind.”

	Remember that in our case we proceed upon the basis that the Chairman had said that the Tribunal had not reached any conclusion at the time when the in-chambers meeting took place and moreover, the proof of that pudding was in the eating, in the sense that when, later, an application was made that there was no case to answer, the Tribunal rejected that and went on and heard the evidence in full.

	Now, calling representatives into chambers is manifestly a dangerous course.  Even where, as here, good notes of it are taken there can be disputes about just what was said and done and the manner in which things were said and done.  A wrong impression can all too easily be conveyed.  Parties can emerge saying to themselves, “We’re on a winner, let’s take a tough line in negotiations” or they might think “The Tribunal has taken against us.  We may as well try and settle as cheaply as we can” and both those impressions might be quite false, relative to what the Tribunal itself had intended at the time.  However, when sensitively handled by an experienced Tribunal, the technique can save further hostility, further cost and further time.  Parties often feel less aggrieved by a solution which has been agreed rather than imposed upon them, even if it is not the solution which they would have hoped for.  Due regard, of course, has to be paid to where the onus of proof lies at any particular stage and the possibility of evidence that has already been given being unravelled by other, later, evidence.  It will almost invariably, - certainly other than in extreme cases - be prudent for it to be both indicated and to be the case that no irreversible conclusion shall have been arrived at at the time of any such meeting and that only a tentative or preliminary view is given to the parties.  It will often be wise to preface the meeting with an announcement that, if either side objects to any such meeting then it would be best that such objection should be aired before the meeting goes further.  It will also generally be wise for the Chairman to indicate that, if it wished, the matter can be dealt with in open Tribunal, in the presence of the parties or, perhaps, alternatively, depending on the circumstances, that all parties should be at the ‘in chambers’ meeting.  There will, no doubt, be other points which the Chairman will wish to raise upon the facts of particular cases and there may be cases, no doubt, (we would hope them to be rare) where injustice does occur, even when the Tribunal has been thoroughly well meaning.  But such considerations are not, in our view, material upon which to found a proposition that it is invariably an error of law to call representatives in before the evidence on both sides is concluded and to give them the Tribunal’s preliminary view of the evidence down to that date with a view to encouraging compromise.  Although Mr Oldham does not care for this point, it would, as it seems to us, be strange in the post-Woolf era, where judicial case management and a pro-active bench is encouraged, that the Tribunal alone was to be entirely passive.  

	Mr Oldham resiles, I think, from a submission that there is an absolute rule such that there can never be a fair and just in-chambers meeting of the kind that we are faced with here.  He does, though, raise particular criticisms.  He says that the Tribunal was not, in any event, entitled to reach the settled view that it had reached.  It was equivalent, he says, to deciding the case at half-time, which was a mistake in law.  Until the Respondent’s evidence was heard, the Tribunal could not conclude that Mr Clark’s suggested reason for dismissal was not the true reason for dismissal.  But there was no settled view on the Tribunal’s part, only a provisional view.  That is the fair reading on the combined evidence of Mrs Williams, Mr Kirkpatrick and the Chairman’s letters, taken together.  It is not a fair reading to conclude that the view was set in stone.

	Moreover, if, as the Tribunal held, Mr Clark was an unimpressive witness, a term frequently used to describe those whose evidence is not being believed, then the company was failing to convince the Tribunal about the company’s reasons for the dismissal.  It is hard to see what Mr Kirkby could add to what the company had to show, namely the company’s reason for the dismissal.  We do not see anything in the point there raised in paragraph 10(i) of the Appellant’s skeleton argument.

	The next point is that until the Respondent’s evidence was heard the Tribunal could not conclude that dismissal was an unreasonable penalty.  There is no burden of proof in considering whether it was appropriate to dismiss.  It depends on all the circumstances and the evidence of Mr Kirkby was critical to establish the circumstances - Hackney London Borough Council v Usher . This case and Hackney is a fortiori of earlier cases where stopping an unfair dismissal at half time was ruled unlawful.  Then there is a reference to another case that we have not been shown and a reference to Humphreys v St Georges School, which we were shown.

	It seems to us that in the case before us the company failed at the earlier Burchell stage of having to show a belief in the misconduct on which it claimed to rely.  Mr Clark’s evidence on the point was just not believed.  Moreover, it is plain that the Tribunal, on hearing the Respondent’s evidence, felt it could only conclude there had not been a reasonable investigation and again, it is hard to see why Mr Kirkby’s evidence would have been necessary on that point or even that anything he could have said could have undone the impression, created by the company’s own evidence, that the investigation was not reasonable.  Such evidence was, as it seems, uncontested.  

	In 10 (iii) of the skeleton the point is made that until the Respondent’s evidence was heard the Tribunal could not conclude that the procedures used were unfair as what is fair or unfair will, to a significant extent, depend on the effect of the procedures on the employee.  We see no reason to accept that as a proposition.  The fairness of a procedure does not depend on its effect on the employee, it is judged by a far more objective test than that.  It would not greatly avail an employee to say that he felt he was treated unfairly and equally it would not assist the company if he said that he had been treated fairly if other evidence pointed otherwise..  The question is, objectively, whether he had or had not been treated fairly.  Its effect on the employee is largely irrelevant.  

	In 10(iv), although Mr Oldham has not amplified this, was the averment that unless Mr Clark had contradicted himself the Tribunal was obliged to accept his evidence.  Well Mr Clark had been cross-examined and it was for the Tribunal to decide which witnesses to prefer and which parts of which evidence to prefer and so on and they found Mr Clark to be unimpressive and we cannot say that they were not entitled to do so.  

	Mr Oldham complains of the employer being put under pressure to settle.  We are bound to say we do not see what was done as having been pressure to settle.  There was an invitation to the parties, in all the circumstances, that seemed appropriate.  It will be remembered that the company had been heavily criticised by the television and press and the Chairman’s speaking of saving the party’s blushes was particularly appropriate here.  All in all, although what we would regard as a dangerous strategy was used in this case, we cannot detect any error that can fairly be described as an error of law.  There were particular reasons to avoid the possibility of publicity in the circumstances we have mentioned of the video and the press having already, as the Tribunal felt, unfairly criticised the company.  It seems entirely proper for the Tribunal to have drawn to the attention of the parties that, if they had to be critical and if their reasons had to be given in public, this could even add to the harm which the company had already suffered from such adverse publicity as had already been given.

	We have been taken to Hackney v Usher [1997] ICR 705.  That was a case where the whole case was brought to an end.  It was at what might be called the half-way stage.  It was not a case where, such as we are dealing with, where the parties were invited in but where, in fact, the case continued.  It is quite plain from pages 712 to 713 and 714 at C, that the view taken by the Tribunal in that case was that it can be appropriate to stop a case at half-time in exceptional circumstances.  A fortiori, one would think, it can in some cases be proper merely to have the parties in for a discussion of the kind that we are dealing with.  We have been referred also to Humphreys v The Board of Managers [1978] ICR 546.  It is another case where the evidence and argument was stopped at the half-way stage and judgment was then given.  Again, it is quite plain that nothing is said in the case to preclude a submission of “No case to answer” ever succeeding.  A party or a tribunal can say that enough is enough - see 549F.  We have been shown Walker v Josiah Wedgwood [1978] ICR 744 in the EAT, on the uncomfortable use of applications to stop a case at half-time but, again, nothing precludes them altogether.  There is no general rule that “No case to answer” can never succeed.  We see nothing in those authorities to indicate any error of law in the particular case in front of us and it has to be remembered that in our case a submission of no case to answer was made but that it failed.

	Doing the best we can in this matter and looking to see whether this dangerous procedure did result in an error of law, we find no error of law and accordingly we must dismiss Huntingdon’s appeal.  We can now move on to the cross-appeal as to costs.

	[Argument was then heard on the cross-appeal]

	We now deal with the cross-appeal, which is only as to costs.  At the hearing below, at the end, Mr Kirkby applied for costs and the matter was dealt with at some length - it is three-quarters of a page of the reasoning.  His application was declined and Mr Galbraith-Marten cross-appeals as to costs.  

	It seems that the Tribunal below was puzzled as to why the Respondents did not throw in the towel at an earlier stage, which was a slightly odd reaction of theirs, given that they refused an application that there was no case to answer.  But then they came on to say:

“The Chairman is firmly of the view that the Respondent acted unreasonably to some extent in the course of these proceedings.”

	So one starts off with a position in which the Chairman thought that the employer had been unreasonable and, of course, it is only if unreasonableness is upheld that the discretion even comes into play (leaving aside the particular other passages about vexatious and so on, which are not in play).  The decision then goes on to say:

“The industrial members agree with him but are perhaps more compassionate.”

And then there is a slightly puzzling sentence that says:

“It is easy for another lawyer to say:  ‘Well if I had been doing it I would have done it this way’.  That is always slightly unfair on those who have to conduct hearings as advocates and do what they think is right at the time”.

And then, importantly, it says:

“Thus, [namely in the light of that reasoning] we are satisfied that the respondents were unreasonable”.

	If that reasoning (and it is not altogether easy to follow) is unsound, then there would have been no well-founded decision that the Respondents had been unreasonable, in which case there could have been no order as to cost in any case.  But let it be assumed that there was a conclusion that the Respondents were unreasonable; that seems to be the case.  That does not mean that therefore there has to be an award of costs.  It is only if the unreasonableness is shown that the discretion even comes into play.  The decision then moves on and eventually says:

“Thus, looking at it overall, stepping back and bearing in mind the costs are not awarded very often in tribunals, and with the persuasion of the industrial members in this case, the tribunal is unanimously of the view that the application for costs should be rejected.”

	We do not see any error of law in that final conclusion.  The confusion of those earlier sentences that we read seem to lead only to the conclusion as to whether or not there had been unreasonableness.  Even assuming in Mr Galbraith-Marten’s favour that there had been unreasonableness, then, even so, the discretion which then comes to be exercised seems not unfairly or improperly to have been exercised.  We do not order the remission of the issue of costs, which is what he asked for.  We dismiss the appeal as to costs.