Appeal No. EATS/0001/03

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH EH3 7HF

	At the Tribunal
	On 24 June 2003

 
Before
THE HONOURABLE LORD JOHNSTON
MR A G McQUAKER
MR P M HUNTER

 

CAPTAIN JAMES WATT SMITH	APPELLANT

 

 
GULF OFFSHORE GUERNSEY LTD
(formerly Guernsey Ship Management Ltd)	RESPONDENTS

 
 
Transcript of Proceedings
 
JUDGMENT

 

 

 

 

	APPEARANCES

 

For the Appellant	Mr A F Hardman, Advocate
Instructed by-
Messrs Morton Fraser
Solicitors
30-31 Queen Street
EDINBURGH   EH2 1JX

 

For the Respondents

 

 

 

Mr A Kemp, Solicitor
Of-
Messrs Burnside Kemp Fraser
Solicitors 
48 Queens Road
ABERDEEN   AB15 4YE

 

LORD JOHNSTON:
 
1.	This appeal raised two quite separate questions.
 
2.	Firstly, the appellant employee argued that the Tribunal had misdirected itself in determining that the dismissal by the respondents was fair and reasonable in all the circumstances.  The second issue was directed towards an allegation of bias with regard to one member of the Tribunal sitting below.
 
3.	The background of the matter is that the appellant is a very experienced Master and was employed by the respondents as a Captain of a ship.  An investigatory process was embarked upon, consequent upon an accident on the ship, with regard to whether or not the appellant had carried out risk assessments, particularly, in relation to the activities being carried on at the time of the accident.  Put shortly, both the investigatory and the subsequent disciplinary hearing, confirmed that the appellant was not prepared, under any circumstances, to carry out the risk assessments, it being, apparently, his view that they were no use, or dangerous, or both.
 
4.	Against that background the Tribunal held that he was in breach of his contractual requirements and failed to comply with reasonable requests from the employer.
 
5.	Mr Hardman, appearing for the appellant, submitted that the issue of risk assessment had been thrust upon the appellant at the disciplinary hearing and he was not prepared to deal with that matter specifically.  Furthermore, he submitted that he had not been on notice that failure to comply with this request was liable to lead to dismissal.
 
6.	Without rehearsing the matter in any further depth, we are entirely satisfied, against the unshakeable evidence that the appellant was not prepared to carry out risk assessments, the Tribunal are more than entitled to conclude that, against that background, dismissal was a reasonable response to that persistent refusal without there being the need to make it precisely clear to him that that would follow his refusal.  It was a material breach of contract and the appellant must have known that he was fundamentally in breach of his contract in that respect.
 
7.	We therefore consider there is no merit in the appeal as regards the substance of the decision.
 
8.	With regard however to the issue of bias, a more difficult question arises.
 
9.	The background to the matter is an affidavit submitted by the appellant, to the effect that one member of the Tribunal, a Mr Bygate, was an official of the National Union of Seamen and had been such when he had been involved with the appellant with regard to safety issues and also with regard to the sacking of employees in the 1970s.  It was also suggested that some time in the 1980s there was an issue over a strike, having regard to the fact that the appellant kept his ship at sea and, thus effectively, broke the strike.  However, it was not suggested in the affidavit that the panel member in question was aware of this.
 
10.	The law to be applied in this context is to be found in R v Gough [1993] AC 646, Locabail (UK) v Bayfield Properties Ltd [2000] IRLR 96, and very recently in the House of Lords, Lawal v Northern Spirit Ltd, 19 June 2003.
	
11.	Without quoting from these cases, the test to be applied under the present law is whether or not a reasonably informed bystander in which place this Tribunal should put itself, would have concluded that the facts that have been revealed, basing the allegation of bias, would create a real possibility of such occurring.  We emphasise the word “real”.
 
12.	Mr Hardman submitted that this was the inevitable conclusion from the contents of the affidavit, while Mr Kemp, appearing for the respondents, pointed to the length of time that had elapsed since the alleged contact had taken place and to the fact there was no disclosure in the affidavit of any ill-will or trouble ever having occurred between the appellant and the panel member.
 
13.	With this last submission we are in complete agreement.  While we can see that, on one view, it is unsatisfactory for the union member on this particular Tribunal to have been of the National Union of Seamen and, at some stage having been involved with the appellant, who incidentally did not appear to have recognised him at the time of the hearing, but be that as it may, we emphasise again the word “real” and we consider that the connections stated in the affidavit here are so remote as not to create a real possibility of any bias being likely to occur.
 
14.	Having reached these conclusions, this appeal is accordingly dismissed.