Appeal No. EAT/1025/01/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 24 March 2003

Before
HIS HONOUR JUDGE J McMULLEN QC
MRS M McARTHUR
MS G MILLS

DR J B ILANGARATNE	APPELLANT

(1) BRITISH MEDICAL ASSOCIATION
(2) DR RICHARD SMITH	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR D STILITZ
(of Counsel)
Instructed By:
FRU
	
For the Respondents	MR T RIGBY
(of Counsel)
Instructed By:
Legal Department
BMA
Tavistock Square
London WC1H 9JP	

JUDGE J McMULLEN QC:

1	This case concerns an allegation of apparent bias by a Tribunal and the correct test for race discrimination by way of victimisation by a Trade Union.  We will continue to refer to Dr Ilangaratne as the Applicant and the BMA as the Respondent, where necessary citing the Second Respondent as Dr Smith.

Introduction

2	It is an appeal by the Applicant in those proceedings against a decision of an Employment Tribunal sitting at Hull, Chairman Mr J.A. Pickard, over three days in 2001, registered with Extended Reasons on 13 August 2001.  The Applicant represented himself, the Respondent was represented by Mr Gilroy of Counsel.  The Applicant claimed victimisation contrary to the Race Relations Act 1976.  The Respondent denied the claim.

The issue

3	The essential issue for the Employment Tribunal was to decide whether the Respondent discriminated against the Applicant in its handling of his messages on its web site for the Journal it published, the British Medical Journal, by reason of his having complained of race discrimination.

The Legislation

4	The relevant provisions of the legislation are as follows.  The Race Relations Act 1976 provides:

“2 Discrimination by way of victimisation
(1) A person (‘the discriminator’) discriminates against another person (‘the person victimised’) in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has -
(a) brought proceedings against the discriminator or any other person under this act.”

Discrimination by other bodies than employers is dealt with in section 11:

“11	Trade Unions etc
(3)	It is unlawful for an organisation to which this section applies, in the case of a person who is a member of the organisation, to discriminate against him –
(a) in the way it affords him access to any benefits ... 
(b) depriving him of membership ...
(c) by subjecting him to any other detriment.”

5	Article 6(1) of the European Convention on Human Rights, scheduled to the Human Rights Act 1998, provides guarantees that everyone in the exercise of his or her rights in civil proceedings should be given a fair hearing before an impartial body within a reasonable time.

The Decision

6	The Employment Tribunal dismissed the Applicant’s claim.  

7	The Applicant appeals against that finding on grounds of apparent bias; that the decision was perverse; that the Tribunal misdirected itself as to the application of Section 11 and failed to make findings on the key issue.

8	Directions sending this appeal to a full hearing were given at a preliminary hearing by Miss Recorder Slade QC and members on 29 May 2002, following an adjournment of an earlier hearing granted by Mr Recorder Langstaff QC on 28 January 2002.  These directions included the filing of an affidavit by the Applicant, supporting his allegation of bias and by his observer and comments by the three members of the Employment Tribunal.  In addition Counsel representing the Respondent at the hearing has submitted sworn evidence.

The Parties

9	The Respondent is a professional body representing medical practitioners in the United Kingdom.  It is a Trade Union, and a special register body, within the meaning of the Trade Union and Labour Relations (Consolidation) Act 1992, Sections 1 and 117.  It has at the relevant time no policy on race relations.  The Applicant is a member.  He is a British citizen of Sri Lankan origin.  He believes the BMA is corrupt and racist. The BMA has an organ called the BMJ.  Dr Smith is the Editor.

The Findings

10	In May 1998 the BMJ set up a web site which included a “rapid response” facility.  Space being short in the paper Journal, contributions were elicited by e-mail and it was undertaken that such contributions would be posted on the web site within 24 hours.  There was no mention of editorial discretion, censorship or exclusion of liability should the deadline not be met.  The BMJ had indicated that it would post material on its web site within the next 24 hours so long as it contributes to a topic under discussion and does not break patient confidentiality or libel anyone.  In fact, about 80% of its contributions were posted within 24 hours, the rest not.  

11	The Applicant was an enthusiastic subscriber together with about six others.  It published about 60 of the Applicant’s contributions.  The Tribunal found real difficulty in seeing any connection between the subject under discussion and the Applicant’s contributions.  In June 2000 the BMJ editorial team discussed ways of “curbing abuse on the system” and it was decided to introduce “club rules”.  The introduction of this to the public readership was through what the Tribunal described as “a challenging piece” entitled “Bores on the Web”.  The Editor, Dr Smith said this:

“Some people abuse the system by pursuing vendettas or obsessions, contributing almost every day and writing at excessive length.”

12	Thereafter, a number of people contributed, being self-identified as “Bores”.  The Applicant sent a rapid response on 27 June 2000.  It was critical of an Officer of the Association, Mr Hughes, the Head of its Legal Department.  It was immediately following this note from the Applicant that Dr Smith decided that “Bores on the Web” should be published and arranged for it to be posted on 8 July, the same day as the Applicant’s 27 June message.  The Applicant complained, we find, both of the juxtaposition which put him in an unfavourable light and of the delay beyond the 24 hours.  He presented an Originating Application.  

13	The Applicant also raised complaints in a second Originating Application arising out of a second eruption onto the web site.  He had responded by the rapid response method to an article entitled “Recipe for Happiness”.  His contribution was sent on 24 December 2000.  He contended that the Law Society had ordered the BMA’s Legal Department to pay him compensation of £400.  Mrs Smith, who was on duty over the Christmas period handling the rapid responses, decided to take advice.  On 3 January 2001 it was accepted by Mr Hughes, in an e-mail to her, that the contents of the Applicant’s e-mail were true.  No complaint is today made about the distance between 24 December 2000 and 3 January 2001.  That is a realistic approach for Mr Daniel Stilitz, who appears for the Applicant, to take, since we can well see that an Officer of an Association receiving an allegation such as was contained in the e-mail, may well wish to consult legal advice about the contents before publishing it.  Complaint however, is currently maintained about the delay from 3 to 10 January 2001.  The e-mail had plainly been received with supporting hard paper copies shortly after 3 January 2001.  No explanation was given to the Tribunal for the delay.

14	The Tribunal found that the Applicant had not been discriminated against on the grounds that he had brought Employment Tribunal proceedings in 1997, or had made a subsequent complaint in the from of the first Originating Application.  It found that the promise by the editorship of the Journal to publish within 24 hours was not a binding contract but simply a journalist’s puff.  It also indicated that the provisions of Section 2 of the Act, which it did not set out, were not designed to protect the over-sensitive, adapting a submission made to it by Counsel.

15	The Tribunal focused on the delays in the publication of the two contributions and decided that the Applicant was not entitled to rely on the victimisation provisions.  The Tribunal referred in a list to Chief Constable of West Yorkshire Police v Khan [2000] IRLR 324 CA, Aziz v Trinity Street Taxis Ltd [1988] IRLR 204 CA, Nagarajan v London Regional Transport [1999] IRLR 572 HL.  Those are the relevant authorities we hold, although Khan in the Court of Appeal was overturned by the House of Lords.

The evidence on apparent bias

16	In the sequence of information presented to us there is an affidavit from the Applicant and his supporter and comments from the three members of the Tribunal and Counsel then acting for the Respondent, Mr Gilroy.  The Applicant complains substantially of four matters.  

(1) He was described as over-sensitive about being described as a “Bore”.

(2) There was uneven treatment of questions being asked of him and questions he was entitled to ask when he was cross-examining.

(3) The Applicant should get on with it and

(4) There was further uneven-handedness in the handling of the questioning and the submissions.

The Applicant’s case

17	It was submitted by Mr Stilitz that substantive parts of the Applicant’s criticisms had not been disputed and some had been accepted by members of the Tribunal.  We agree.  The comments of the lay members of the Tribunal are somewhat at variance to the comments of the Chairman and are made in temperate terms, as contrasted with the tone adopted by the Chairman, who in response to certain questions, replied “rubbish”.  

18	The Applicant submitted that the Tribunal had erred in law in that it failed to consider a central part of the Applicant’s case.  That is, not simply that there was a delay in the publication of his two contributions, but that, in respect of the first, he juxtaposition of the article by the Editor and his own contribution were designed to humiliate and to target him.  This is clear from the Applicant’s statement where he puts the case firmly.  Secondly, it was contended that the Tribunal had made a perverse finding in its analysis of the reason for a delay.  There was no evidence that there were practical reasons, such as the ordinary course of business or difficulties over Christmas, when in reality the evidence was of a deliberate decision to target the Applicant, and causing the delay, in respect of the first contribution and no explanation as to the second.  Thirdly, it was submitted that the Tribunal had failed adequately to analyse Section 2 and Section 11 by reference to less favourable treatment and detriment and, fourthly, that the Tribunal had displayed apparent bias.

The Respondent’s Case

19	It was contended by Mr Terence Rigby who appears today for the Respondent that the principal issue here was the nature of the protected act.  There was one simple decision for the Tribunal to make which was to look at less favourable treatment causing an act of detriment.  The Tribunal, albeit implicitly, had rejected the Applicant’s case and regarded the issue of delay as not causing him detriment.  The juxtaposition of the “Bores on the Web” piece and the Applicant’s contribution was fully in the mind of the Tribunal.  As to bias, it was contended that this must relate to what was available at the hearing itself, as would appear to a reasonable observer, that the criticisms made of the Tribunal in its findings at paragraph 2 are a helpful collection expressing the difficulties of the Tribunal. The response of the Chairman, far from being a representation of his incandescence, as Mr Stilitz had put it, was a warm response from him.  There had been a practical justification for both of the delays and the Tribunal had implicitly directed itself correctly by reference to the authorities.

Conclusion

20	We reject the arguments of the Applicant on the question of bias.  We uphold his arguments in respect of the substance:

(1)	The failure to deal with the Applicant’s case.  

21	In our judgment this is adequately made out by Mr Stilitz.  There can be no doubt that the Applicant’s complaint was of the publication, side by side, of his contribution with the condemnation in the rules of the club set out by the Editor.  That was a central part of the case; as one of the lay member’s responding to the invitation from the EAT put it, “It was the central bone of contention”.  The Tribunal owed a duty to the parties to make a decision upon this.  It failed to do so.  It is thus in breach of its duty under Meek v City of Birmingham District Council [1987] IRLR 250 CA and Anya v University of Oxford [2001] ICR 847.  That is sufficient for this case to be sent back for a further hearing, at least on the first allegation contained within the first Originating Application.  

(2)	Perversity

22	The Tribunal has given no reasons for accepting the Respondent’s case of practical difficulties in publishing on the web.  In our judgment that case simply cannot be made out in respect of the first contribution, since we have seen the Witness Statement from Mr Smith, who explained both the reason for the letter which he published and the delay as being as follows:

“My article was not aimed solely at Dr Ilangaratne, although he is one of the individuals whom I wanted to target.  Most of these individuals recognise that the article was aimed at them and were upset in equal measure.  Several contributors, including Dr Ilangaratne, responded to my article and expressed their displeasure.  I admit that the title and tone of my article was provocative but in journalism it is not unusual to provoke readers in an attempt to grab their attention.”

23	Dr Smith sets out his intention to publish club rules simultaneously and, in our judgment, there was a clear connection between his targeting of the Applicant in his article and its publication next to his own article.  There was no reason attributable to practical difficulty, as may be implied by the Tribunal’s decision, since the reason was plainly stated by the Editor himself.  

24	As to practical reasons for the delay in responding to the second e-mail, as we have pointed out, it is the delay from 3rd or maybe 4th  January until the 10th, as to which the simple assertion that it was Christmas and Mrs Smith was busy after Christmas, is not in our judgment made out on the evidence.  We asked Mr Rigby what explanation there was.  He frankly said there was none.  It thus is perverse of the Tribunal, under a blanket finding dealing with practical problems or practical reasons, to accord a justification for that failure.  It is a decision to which no reasonable Tribunal could have come.  

(3)	Detriment

25	The Tribunal confined its analysis to the question of whether delay in itself could amount to a detriment.  The Tribunal did not consider whether the Applicant’s more serious complaint as to juxtaposition could give rise to a detriment.  The Applicant is right when he submits that the Tribunal misdirected itself in approaching the question of detriment, by reference to a test of whether the Applicant had suffered, or by reference to the question of whether the contributions to the web site were relevant.  The Tribunal ought to have applied the test laid down by the Court of Appeal in Jeremiah v Ministry of Defence [1979] IRLR 436, as meaning nothing more than putting at a disadvantage.  This has recently been affirmed by the House of Lords in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11:  see the speech of Lord Hope at paragraphs 34 to 35 and of Lord Scott at paragraph 105.  

26	The Tribunal failed to make the essential judgment about how the matter would be seem from the eyes of the victim in this case, and has simply reviewed the position objectively, and has given its own assessment and value judgment of what a delay would mean in the circumstances.  This fails to recognise the impact on a given victim and, in the circumstances of this case, to apply correctly the statute and the authorities.  As we have indicated, Kahn was the subject of an appeal to the House of Lords where Lord Nicholls of Birkenhead, Lord Mackay and Lord Hoffmann all set out tests for the determination of victimisation and in our judgment, although the Tribunal cannot be criticised for this, since its decision pre-dated that judgment, the guidance given by the three-stage approach enjoined by Lord Nicholls is to be followed. It follows that the failure to analyse the circumstances of this case against that background was an error of law.

(4)	Bias

27	The relevant test is set out in Porter v Magill [2002] 2 WLR 37, per Lord Hope at paragraph 103, as follows:

“The question is whether the fair-minded and informed observer, having considered the facts would consider that there was a real possibility that the Tribunal was biased.”

It is plain from that citation that Mr Rigby’s contention as to the timing of the examination is correct: it is at the time of the hearing.  It is from the perspective of a fair-minded observer.  

28	First, Mr Stilitz contended that the content of paragraph 2 of the Reasons is pejorative and prejudicial.  Paragraph 2 sets out issues of concern to the Tribunal and, it has to be said, indicates a degree of pomposity in indicating that its combined strength represented 56 years of sitting on a Tribunal and dealing with advocates and people who represented themselves.  It is true that this passage indicates a number of criticisms of the handling by the Applicant of his case, but it does set out matters necessary for the understanding of the case.  The Tribunal could have been criticised if it had not included certain matters which had been dealt with on its way to its judgment.  We do not consider that paragraph 2 indicates an appearance of bias and reject the submission.  

29	Secondly, it was submitted that the language of the Chairman in his response was intemperate and indicated an earlier bias.  Again, we revert to Mr Rigby’s submission about the timing.  The Chairman’s language might shed some light on his behaviour on the day, but not much.  Of course, he denies actual bias and apparent bias.  His language is intemperate.  It is inappropriate in formal responses to the EAT when his conduct is the subject of allegations of actual or apparent bias.  We can understand that he may have wished to dispose of the issue quite quickly, but it does not excuse the language which he uses.  However, we reject the contention that on that basis alone there is evidence of apparent bias.  The standard it is set out in Peter Simper v Cooke [1986] IRLR 19, a judgment of the EAT, Mr Justice Peter Gibson presiding, who said at paragraph 17, as follows:

“On all the matters to which we referred the chairman was making comments which would, in our opinion, reasonably be understood by the impartial onlooker as meaning that the chairman had already formed a concluded view hostile to the employers on matters which fell for decision at the conclusion of the case after hearing all the evidence and arguments.  Of course, we accept that the chairman, experienced as he was, would not have made a final decision until the end of the case;  but we feel bound to observe that his comments were injudicious and untimely.  In so saying, we do not in any way underestimate the value, both in the formal English judicial system as well as in the more informal Tribunal hearings, of the dialogue that frequently takes place between the judge or Tribunal and a party or his representative.  Nor do we wish to cast any doubt on the right of the Tribunal, as master of its own procedure, to seek to control prolixity and irrelevancies.  But there is a time and a place for the expression of concluded views by the Tribunal.  The middle of a cross-examination before the employers’ case has been opened or the employers’ arguments presented, is in our view, plainly not such a time for such strongly expressed views to be aired by the chairman.”

30	There are few cases of apparent bias succeeding, but the rationale is plain:  see, for example, Kennedy v The Commissioner of the Metropolitan Police (The Times 8 November 1990) a judgment of the EAT, Mr Justice Wood presiding.  More help is given by Mr Justice Morison in Tchoula v Netto Food Stores Ltd (EAT/1378/96 March 6 1998) Unreported but cited with approval, in Anya [2001] ICR 860 D to G, paragraph 24:  Mr Justice Morison gave careful consideration with the Members to giving guidance in Employment Tribunal proceedings: the handling of cases where an applicant is in person and comes from a minority ethnic origin must be one which inspires confidence to the parties

31	It is always difficult where there is uneven representation and there is no criticism in this case of the conduct by Mr Gilroy of the case on behalf of the Respondent.  However, Mr Justice Morison indicated that issues should be identified correctly at the outset.  There was a preliminary hearing in this case but it seems not to have focused on what the issues were.  Timing was set out as being one day, it overran to something over two and a half.  There were obvious difficulties in the case.  They cried out for proper case management and firm but humane direction from the Tribunal.  Sadly, in our judgment, that direction was not carried out with the kind of sensitivity which Mr Justice Morison indicated.  The question is whether it gave the appearance of bias.  

32	We have considered very carefully the difficulties faced by the Applicant in this case.  We have treated this matter, as we have been invited to do, as a free-standing matter separate from the substance.  We feel some unease about the way in which these proceedings were conducted, but we do support firm case management and adherence to time tables.  We do not support what might appear to be insensitive comments.

33	The prime issue in this case of bias relates to the suggestion that the Tribunal had already formed a judgment when the Chairman said, in the course of cross-examination of the Applicant by Mr Gilroy, that the Applicant may have been over-sensitive to the issue of being called a “Bore”.  It was perfectly proper for the question to be put.  It was, as we have found, at the centre of the case.  No criticism can be made for that issue being put.  The Applicant took offence.  He asked for the Tribunal to recuse itself.  Again, it was proper for the Applicant to raise that issue during the course of the proceedings.  Allegations of bias and apparent bias made long after the relevant event lose some of their cogency.  We are satisfied objection was taken:  see again Peter Simper v Cooke.  But having reviewed carefully the material put before us, we do not form the view that there was actual or apparent pre-judgment of the Applicant’s case by the comment made by the Chairman.  It would have been better had it not been made.  Again, we reiterate that Mr Justice Morison’s guidance in cases of difficulty and sensitivity such as this should be adhered to.

34	We are very grateful to both Counsel for the expeditious way in which they have handled this, and in particular for the work done by FRU.  The appeal is allowed and the case remitted to a different Employment Tribunal.