Appeal No. UKEAT/0312/08/CEA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 27 February 2009

Before
HIS HONOUR JUDGE McMULLEN QC
MS J L P DRAKE CBE
MR D G SMITH

MR T GILL	APPELLANT

HUMANWARE EUROPE LIMITED	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR SPENCER KEEN
(of Counsel)
Instructed by:
Free Representation Unit 
6th Floor
289-293 High Holborn
London
WC1V 7HZ
	
For the Respondent	MR ROBIN WHITE
(of Counsel, who did not appear below)
Instructed by:
Messrs Wilson Browne Solicitors
Kettering Parkway South
Kettering Venture Park
Kettering  
Northamptonshire NN15 6WN	

SUMMARY
PRACTICE AND PROCEDURE:  Bias, misconduct and procedural irregularity
UNFAIR DISMISSAL:  Constructive dismissal
The EAT, as the tribunal of fact, found that a three-person Employment Tribunal showed apparent bias. The Employment Judge twice allowed private access to himself by counsel for the Respondent, without reference to the Claimant in person, to raise case management issues, and matters very personal to the Claimant or the Respondent’s manager.

Further, the Employment Tribunal wrongly excluded the Claimant’s evidence of two grievances the handling of which he alleged contributed to the final straw causing his resignation. Judgment set aside and remitted to a fresh Tribunal. 

HIS HONOUR JUDGE McMULLEN QC
1.	This case is about unfair dismissal and Employment Tribunal procedure, consisting of allegations of apparent bias. It is generally thought to be unfair for a judge to conduct a private conversation with one side.  The judgment represents the views of all three members.  We will refer to the parties as the Claimant and the Respondent.  

Introduction
2.	It is an appeal by the Claimant in those proceedings against the judgment of an Employment Tribunal chaired by Employment Judge Burton sitting at Leeds, registered with reasons on 7 February 2008.  Today the Claimant is represented by Mr Spencer Keen but represented himself at the Employment Tribunal.  The Respondent is represented by Mr Robin White and at the Employment Tribunal by different Counsel.

The issue
3.	The essential issue was to determine the Claimant’s claim for constructive unfair dismissal.  The Tribunal put the case this way:

“2.	The issue that the Tribunal has to resolve is to identify why the Claimant resigned.  Whether that was as a result of a repudiatory breach by the respondents of his contract of employment and whether in any way he waived that breach between the breach and the resignation so as to affirm his contract.”

4.	It rejected the Claimant’s case.  He appeals.  Directions sending this appeal to a full hearing were given in various stages of case management by Langstaff J, Elias P and HHJ Peter Clark, so that all of the issues raised in the Notice of Appeal are live before us.

The facts
5.	The Respondent makes electronic equipment specifically designed for people who have a visual impairment. The Claimant was employed by it from 2 October 2000 until he resigned by letter, taking effect on 21 March 2007.  He was a sales representative in the northern area of the Respondent’s empire.  .  He was line managed by Mr Pedro Polson, Managing Director, but in 2001 there was external recruitment of a sales manager.  Mr Polson appointed Mr Alan Davis who had responsibility for managing the claimant.

6.	The Claimant raised two grievances, which were handled by Mr Davis, and in respect of both of those, Mr Polson intervened. Effectively, the challenges which the Claimant raised to management action were upheld over the head of Mr Davis.  The challenges were seen by the Claimant as an attack on his wages, causing the reduction of his pay and/or the opportunity to earn at the rate that he had before.  Those are now known as the first and second incidents or grievances, on 9 February 2005 and 20 February 2006.

7.	A third grievance, which was not resolved in the Claimant’s favour, was submitted on 28 November 2006, which was to do with what was seen as a straight recruitment choice between himself and Lucy Naismith, on which he lost out

8.	The Claimant resigned by letter, having been off work for some time. He complained that his grievance had still not been fully addressed, that he had not been treated fairly in relation to the third grievance, and that the two prior grievances had given him little confidence that the matter could be resolved between himself and Mr Davis.  He felt that as a result of what was said by Mr Polson there was no genuine invitation to return to his regular role and he reiterated that none of the grievances which he had raised had been properly dealt with.  He contended that he had had severe stress-related difficulties as a result of the recent history with the company and that, as he put it “These recent events are the last straw”.  He said that he did not believe the Respondent had the ability to deal with his grievances.

9.	The Employment Tribunal decided that the solution to the case was to find out why the Claimant really left, causing him to abandon a career which he told the Tribunal he so much enjoyed.  The Tribunal held that the Claimant had affirmed his contract on the two previous occasions when grievances had been raised. The attempts at wage reduction had been defeated and therefore they were not part of the relevant history.  The question the Tribunal posed to itself was what was the reason for his resignation, for the Tribunal said this: 

“25. 	Something must have happened thereafter to make him change his mind and we asked him to explain to us what that was.  His witness statement and his claim form suggests that the final straw lay in the fact that in December or January of each year he was accustomed to receiving a letter from the respondents telling him what pay increase he was receiving for the following year.  He had received no such letter in 2006/07.  If that was the ‘final straw’ it took him another two or three months to decide to resign.  We do not think that the Claimant’s decision to resign really had anything to do with that.  Even if it did he had waived any breach by the subsequent delay.  Even if he had not no employer is contractually obliged to award pay increases and so a failure to do so can hardly amount to a repudiatory breach.”

10.	It then examined the treatment of the third grievance and held this:
“26.	…We see no reason to conclude that the decisions made by either of those managers, (that is Mr Polson and Dr Mander) were not decisions that lay within the band of reasonable responses of a reasonable employer.”  

As a result of those findings the claim was dismissed. 

The Claimant’s case
11.	The Claimant’s case is in two parts.  First, there is a criticism of the Employment Tribunal, in the person of the Employment Judge, that it gave the appearance of bias; secondly, that independently or in conjunction with that error, the Tribunal erred in its approach to constructive unfair dismissal.  The Claimant contends that there were three relevant events at the Employment Tribunal which gave the appearance that the Judge was not being impartial.  He further contended that once decisions had been made about the exclusion of certain of his evidence he was unable to present his case correctly and so it is not surprising that the Tribunal came to the judgment it did.  None of the findings by the Tribunal is untainted by either the earlier appearance of bias or the decision to exclude certain aspects of his evidence.  The judgment should be set aside.

The Respondent’s case
12.	On behalf of the Respondent, it is contended that the evidence is not clear as to what occurred at the Tribunal, that some of the complaints by the Claimant are, as Mr White engagingly put it, “the usual suspects”. These are complaints which he anticipates we see commonly made by litigants in person (and he is right) of firm case management by an Employment Judge, such as to invite the litigant to concentrate on the issue which has been agreed to be the focus of the case or to move on from repeating certain questions.  

13.	As to constructive unfair dismissal, it was suggested that there had been no challenge to certain key factual findings of the Employment Tribunal, such as the causation of the Claimant’s decision to leave, and that it was right for the Tribunal to have looked at and evaluated the reasonableness of the decisions of the management at the relevant stages.  The decision to appoint Lucy Naismith, based on the comparative presentation at interview of herself and the Claimant, is the solution to the case, and that was without taint. 

The legal principles
14.	We take our approach to this case from the following authorities.  In Abegaze v Shrewsbury College of Arts & Technology [2008] UKEAT/0176/07 two of the present members of this Tribunal, Ms Drake and I, laid down what we regarded as the correct principles for the approach to an allegation of apparent bias against an Employment Judge.  The case was taken to the Court of Appeal but no challenge was made to our directions on apparent bias, nor upon the procedure to be adopted by the EAT when such a challenge is made: see [2009] EWCA Civ 96.  Secondly, when an allegation is made of a communication between a judge and a party or a representative of a party, the judgment of HHJ Bowsher QC in Discain Project Services Ltd v Opecprime Developments Ltd [2001] EWHC TCC 435 is of assistance, it being the only case which Counsel’s researches have unearthed dealing with such a situation.  Broadly speaking, it is irregular and will cause a judgment to be struck down if there has been unilateral communication, where on an important matter, an adjudicator heard submissions on the phone from a representative of a party.  
“50.	I take the view that what was said about workmanship (whether or not it was a discussion) ought to have been reported to Mr. Cordell for his consideration at the same time as the report of the 5d matters. In cross-examination, Mr. Sutcliffe [the adjudicator] said that on 27 June he had not decided that defects were no longer an issue, but he added, Mr. Hackett was seeking to persuade him that defects were no longer an issue. In other words, he heard submissions from Mr. Hackett on an important matter that he did not report to Mr. Cordell. … Mr. Sutcliffe honestly believes that he reported the only matter of importance in that telephone call, but in my view he is wrong in that belief. …”

The Judge held at paragraph 69 that it is not in accordance with the rules of natural justice to fail to communicate with the parties on equal terms. 

15.	The test for apparent bias is accepted by both counsel to be contained in the judgment per Lord Hope in Porter v Magill [2002] 1 AER 465 (HL) at paragraph 102 to 103, which is that the court must first ascertain all the circumstances which have a bearing on the suggestion that the Judge was biased.  It must then ask whether those circumstances would lead a fair-minded observer informed of the circumstance to conclude that there was a real possibility that the Tribunal was biased.

16.	Turning then to the substantive issue of constructive dismissal, the starting point is the judgment in Western Excavating v Sharp [1978] IRLR 27 (CA), which the Employment Tribunal mentioned and alluded to.  Its adoption and restatement is in Lewis v Motorworld Garages Limited [1985] IRLR 465 (CA), where Glidewell LJ said this at para 37:
“This case raises another issue of principle which, so far as I can ascertain, has not yet been considered by this court.  If the employer is in breach of a contract of employment, of such seriousness that the employee would be justified in leaving and claiming constructive dismissal, but the employee does not leave and accepts the altered terms of employment; if subsequently a series of actions by the employer might constitute together a breach of the implied obligation of trust and confidence; is the employee then entitled to treat the original action by the employer which was a breach of the express terms of the contract as a part - the start - of the series of actions which, taken together with the employer's other actions, might cumulatively amount to a breach of the implied terms? In my judgment the answer to this question is clearly 'yes'.”

17.	The authorities on the last straw doctrine in constructive dismissal were reviewed by HHJ Peter Clark and members in Gab Robins (UK) Ltd v Triggs UKEAT/0111/07 at paragraph 32, where this appears.  

“32.	We derive the following principles from Omilaju:
(1)	the final straw act need not be of the same quality as the previous acts relied on as cumulatively amounting to a breach of the implied term of trust and confidence, but it must, when taken in conjunction with the earlier acts, contribute something to that breach and be more than utterly trivial.
(2)	Where the employee, following a series of acts which amount to a breach of the term, does not accept the breach but continues in the employment, thus affirming the contract, he cannot subsequently rely on the earlier acts if the final straw is entirely innocuous.
(3)	The final straw, viewed alone, need not be unreasonable or blameworthy conduct on the part of the employer.  It need not itself amount to a breach of contract.  However, it will be an unusual case where the ‘final straw’ consists of conduct which viewed objectively as reasonable and justifiable satisfies the final straw test.
(4)	An entirely innocuous act on the part of the employer cannot be a final straw, even if the employee genuinely (and subjectively) but mistakenly interprets the employer’s act as destructive of the necessary trust and confidence.”

Although that case was the subject of attention by the Court of Appeal [2008] EWCA Civ 17, constructive dismissal was not considered and the above therefore remains, as Counsel accept, good law.

Apparent bias
18.	We first record our findings on the events which occurred, which have been the subject of the allegation of apparent bias.  Applying the practice which we set out in Abegaze, we have heard the evidence of the Claimant by affidavit and comments provided by the Judge, by the two lay members and by Counsel previously representing the Respondent.  The Claimant was tendered in order to give evidence in relation to the latest material and he was cross examined. We make the following findings.

19.	The Claimant had come to the Employment Tribunal to argue his case of constructive dismissal supported by a witness statement of over 30 pages.  Paragraphs 1 to 88 deal with what we have described as the first and second grievances.  At paragraph 89 and onwards the Claimant deals with the third grievance, that is the frustrated appointment in 2006.  

20.	From the outset the Employment Judge had decided it was not relevant to hear the Claimant’s evidence in relation to the first two grievances.  There may well have been a discussion with the lay members in private to that effect.  The matter was canvassed in open court with Counsel for the Respondent in a way which suggests that that decision had already been made and that all that was required was a slight adjustment as to where the relevant evidence would begin.  The matter was presented to the Claimant in open court as a fait accompli.  He immediately expressed his unhappiness that his case on the lead-up to the third grievance was not going to be heard or discussed.  The Employment Judge had probably not read all of those passages, for a conclusion had been reached in advance based upon a supposition.  The supposition was this: 

“3.	It was clear, both from the claim form and from the claimant’s written witness statement, that Mr Gill wanted to give lengthy evidence in relation to the circumstances surrounding those earlier grievances.  It seemed to me appropriate to explore with the parties the relevance of that evidence.  It was apparent from what Mr Gill told me that those earlier grievances had, in fact, been resolved in his favour.  [Counsel], on behalf of the respondents, conceded that if Mr Davis, the manager in question, had been motivated by personal malice towards the claimant in failing to promote him, that would amount to a breach of the implied term of trust and confidence.  It was also conceded by her that Mr Gill could have held the perception that Mr Davis would have some feelings of resentment towards him because of the outcome of those earlier grievances.  Accordingly, it was clear that the key issue was whether or not Mr Davis’s reasons for not promoting the claimant related to those grievances or, as the respondents contended, to his performance at interview. 
4. 	It therefore seemed to me that the evidence in relation to those earlier grievance had no relevance, whatsoever, to the issue that the tribunal had to determine, save that those grievances had taken place and that Mr Gill could have been left with that perception as a consequence of the outcome of those grievances.  In those circumstances, [Counsel] indicated that she would not cross-examine the claimant upon the parts of his witness statement that related to those earlier grievances and I concluded, therefore, that there was no need for the claimant to read out that extensive section of his witness statement, on the basis that it was available to the tribunal to read for themselves if we had thought it necessary to do so.  Those matters were explained to Mr Gill.” 

Thus a decision was made without input from the Claimant that his case upon the previous two grievances, the way in which the third grievance evolved and the reason for his resignation, would not be heard as evidence. We give our decision on this in para 28.

21.	Since this was a constructive unfair dismissal case, the Claimant went first.  He produced his evidence. He read out, as is common practice, the parts of his witness statement which were allowed to be considered and he was cross-examined.  At the end of the first day after his evidence closed, Counsel for the Respondent was seen talking to the Judge but the full content was not heard. This is the first incident. The gist was that an agreement was reached between the Judge and Counsel that Mr Davis’ evidence would be first and that Mr Polson’s evidence would not take long, as to which agreement was signified by Counsel.  The Judge also indicated that the case would probably finish within two days and that in the light of the ruling out of the Claimant’s evidence as to the first two grievances the Respondent’s Counsel could do the same in respect of evidence in rebuttal by Mr Davis and Mr Polson on them.  The Judge suggested that the evidence of Mr Davis was central.  Most of this was not heard by the Claimant. He observed a conversation going on, only part of which he heard, which bore upon the treatment by the Respondent’s Counsel, with the encouragement of the Judge, of the Respondent’s evidence.  He found this very discouraging.

22.	The second incident arose the following day when, as predicted, Mr Davis gave his evidence.  At a break in the proceedings after Mr Davis’ evidence was completed, the Respondent’s Counsel asked if she could have a word with the Judge.  Both the Judge and Counsel left the room.  The Claimant heard nothing of any conversation between them. Counsel provided an affidavit but it takes the matter no further and so the evidence on this is drawn from the Judge. The evidence which we accept is this: 

“11.	I have read what Mr Gill has to say in paragraph 19 of his affidavit.  I have no note of this incident, but I do have a vague recollection of something of this sort occurring.  As I recall it, I had called for a five-minute break in the Hearing at the end of the evidence of Mr Davis.  As I remember it, either as we were retiring or when we were about to go back into the tribunal, [Counsel] came to the door of the retiring room wanting to provide an explanation for some part of Mr Davis’s evidence.  I remember that it related to some very personal issues, either in relation to the claimant or Mr Davis, which were, as I recall it, issues that I had already picked up from the evidence in the case.  I did not, as far as I can recall, enter into any discussion with [Counsel] about that.  I am sure that [Counsel] may have a more precise recollection of this incident.  I cannot recall whether I entered into any discussion with the claimant about Counsel’s intervention.” 

23.	The first incident may have arisen in case management, since this was a three-day case which was likely then to go short.  On the other hand, a discussion as to which witness was regarded as central took place without the Claimant being involved.  A decision is reportedly made by the Judge that the evidence of Mr Davis was central.  As it happens, that is true.  But the fact that it was made between Counsel and the Judge without input from the Claimant and without his hearing the whole of the conversation was unfair. Who was regarded by the Judge as central when his evidence was to come, what aspects he need deal with in response to the now-edited evidence of the Claimant, and the length of the hearing, were all matters to be raised in open court. After all, to be effective rather than assumptive case management requires input from all parties and the court. We have no doubt this incident crosses the threshold required by Porter v Magill.

24.	The second incident causes us greater concern.  Although the Judge only talks about a unilateral intervention, Counsel had spoken to him for long enough to put to him an explanation for some part of the evidence after the evidence had closed.  The Judge recalls it relates to some very personal issues, and the very personal issues are either the Claimant’s or Mr Davis’s.  He does not say which.  If it were to do with some personal characteristic of Mr Davis which affected his giving evidence or perhaps the perception of its receipt, that could quite properly have been canvassed in advance by Counsel.  If, for example, he had a disability or there were a particularly sensitive matter which he did not want aired in open court, then the proper procedure would be for Counsel to notify the court that there was a private issue and for that matter to be dealt with, if need be, and with Counsel’s discretion, between Counsel and the Employment Tribunal but certainly with the Claimant’s knowledge that such a matter was being raised.  If it were to do with a very personal issue of the Claimant that would be wholly improper. We can think of no circumstances, outside public interest immunity or national security, when a very personal issue of a party is canvassed with the court without his knowledge.

25.	What was the Judge to do?  He has told us that he had already picked up these issues from the evidence in the case, indicating that however serious and personal the issues were, they had already been put in evidence.  If so, there was no excuse for the matters being raised by Counsel with the Judge.  They would be before the Employment Tribunal (and that means all three of them) and could have been raised then.  The Judge should have stopped Counsel when he realised that some intervention was being made by her touching upon the evidence which had been heard.  He had heard an explanation of personal issues relating to a party.  The matter should immediately have been put before the three-person Tribunal with the Claimant present.  It was not.  In those circumstances, a fair-minded observer would form the view, on reasonable grounds, that there was a real possibility that the Judge might favour the Respondent. 

26.	We conclude that both of those incidents occurring between the Judge and Counsel were unfair and would satisfy the test in Porter v Magill.  Of course, they satisfied the test as far as the Claimant was concerned.  He was in person, had seen much of his evidence excluded and now saw private access by Counsel to the Judge. But his perception has to be set aside for we must decide objectively what the reasonable perception would be. It is an integral part of our system of justice that the cards are on the table.  Transparency is the hallmark.  What occurred in this case missed both of those tests.  There is no role for a private intervention by one party to one member of the court.  For that reason, each allegation of apparent bias succeeds.  

27.	If we are wrong about that, we take all of the issues in the round, which includes the first discussion, the second intervention, and the way in which the Tribunal decided to cut out consideration of the Claimant’s evidence of the two previous grievances.  When they are put together, as they must be, in considering a question of apparent bias, the Claimant’s case is correct.  He was a litigant in person, and of course Counsel operated with that in mind, this was not a transparent process.

Constructive unfair dismissal 
28.	We then turn to the substantive issue.  We accept the contention that the findings of fact by the Tribunal cannot stand in the light of a wrong decision to exclude material.  We hold that it was wrong because, as a matter of construction of the claim form and of the letter of resignation, the Claimant is expressly arguing that what occurred in relation to the third grievance was the last straw, and that inevitably involved consideration of what had gone before.  The test for constructive dismissal includes an analysis of all of the events said to contribute in aggregate to a fundamental breach of contract.  If an artificial barrier is erected between certain events, then the likelihood of proving unfair constructive dismissal will evaporate.  In this case the Claimant articulately put the last straw doctrine and he was entitled to have that case adjudicated.  The Tribunal wrongly made an assumption about what his case would be and it was not prepared to listen.  

29.	Further, it erroneously held that he had affirmed the contract by his previous successes in the grievance procedure.  Even as a matter of construction that cannot be correct for he continued to be unhappy lest the matter be resurrected.  Although he had successfully challenged the unilateral attack on his salary in 2005 the Respondent came back with the same proposition a year later and that is what he feared.  So the Tribunal’s findings of fact are all tainted by that incorrect decision to exclude his evidence.

30.	Next, the Employment Tribunal raises the band of reasonable responses test, as is clear from the judgment in Gab Robins in the EAT.  When this case is remitted, as it will be, directions to the Tribunal will include a careful examination of the law explained by the EAT in Gab Robins, and by the Court of Appeal in Western Excavating [1978] IRLR 27, Omilaju [2005] IRLR 35 and Lewis v Motorworld [1985] IRLR 465. We hold that the Tribunal’s judgment on constructive dismissal cannot stand either because of the unfair procedure adopted in relation to the two incidents or because of the errors of law in excluding evidence relevant to the last straw.  

31.	For those reasons, the judgment is set aside.  No one has argued that it should be remitted to the same Tribunal.  It will go to a differently constituted Tribunal.  The whole of the Claimant’s witness statement will be considered as relevant.  What weight is placed upon these matters and what factual decisions the Tribunal makes as a result are matters entirely for it.

32.	We would like to thank the Claimant for giving his evidence today and both Counsel for the succinct way in which these points have been put.