Appeal No.	 EAT/561/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 November 2000

Before
THE HONOURABLE MR JUSTICE CHARLES
MR J R CROSBY
LORD DAVIES OF COITY CBE

MR H MOSS	APPELLANT

SECRETARY OF STATE FOR EDUCATION AND EMPLOYMENT	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE OR
REPRESENTATION
BY OR ON BEHALF OF
THE APPELLANT	

	MR JUSTICE CHARLES:

1	This appeal comes before us today by way of preliminary hearing.  The parties are a Mr Moss, who was the Applicant before the Employment Tribunal and is the Appellant before us.  The Respondent is the Secretary of State for Education and Employment.

2	Mr Moss appeals against a decision of an Employment Tribunal sitting at London (North) on 21 March 2000, the Extended Reasons for which were sent to the parties on 26 April 2000.  That decision was that the Respondent did not discriminate against the Applicant contrary to the Disability Discrimination Act 1995.

3	Mr Moss has not attended before this Tribunal today.  Attempts have been made to contact him during the day whilst we were dealing with another appeal.  It is now five past four and I am delivering this judgment in the absence of the two Members but I have agreed it with them before they left.  

4	We are aware that Mr Moss was intending to appear today because he made enquiries as to whether it would be possible for him to park his bicycle at or near these premises.  As I will indicate at the end of this judgment, we have not identified any point of law that is reasonably arguable and we dismiss this appeal subject to a provision which will give Mr Moss leave to apply to this Tribunal within ten days of the date of posting of a transcript of this judgment to him for a direction that there should be a further preliminary hearing.  If he does take up that opportunity that application will be listed before a full Tribunal on the basis that if they decide that there should be a further preliminary hearing they will proceed immediately to hold that preliminary hearing. If he makes that application it will therefore be incumbent upon Mr Moss, amongst other things, to explain why he did not attend today.

5	The task of this Tribunal on a preliminary hearing is to consider whether the appeal raises any reasonably arguable points of law.  The grounds of appeal advanced by Mr Moss are identified in his Notice of Appeal accompanying documents and a helpful Skeleton Argument dated 1 September 2000 which he has provided to us.  They do not go to the substantive reasoning of the Employment Tribunal in relation to the merits of his claim but are points based on bias and/or procedural irregularity.

6	The first ground relates to the refusal of the Employment Tribunal to adjourn the hearing.  The second ground is an assertion that the Chairman accused, or effectively accused, Mr Moss of lying and thereby demonstrated bias and prejudice against him.  The third ground is included in the Skeleton Argument and, as is recognised by that, is an additional ground to those referred to in the Notice of Appeal.  It is that Mr Moss alleges that the Tribunal erred in law and indeed, acted in breach of the ultra vires rule in refusing to allow him to put in evidence matters relating to negotiations that had taken place shortly before the hearing.  That ground itself recognises that those negotiations were on a “without prejudice” basis because in the ground Mr Moss says that he rejected the offer put forward by the Respondent because the “without prejudice amount in lieu of damages offered was substantially less than I had indicated I’d accept”.

7	The Originating Application is dated 26 July 1999.  A hearing had, we understand, been set for 11 January 2000 but this was postponed because documents had been provided late to the Applicant.  This appears from paragraphs 4 and 5 of the Extended Reasons.

8	As to the substance of the claim there was no substantial dispute of fact, this appears from paragraph 6 of the Extended Reasons.  The most relevant paragraphs concerning the application for an adjournment are paragraphs 3, 4 and 11 which are in the following terms:

“3  At the start of the hearing the Applicant applied for a postponement of the proceedings.  He explained that until the day before the hearing he had understood that he would not be able to obtain legal representation because legal aid was not available for Tribunals.  However a friend suggested to him that he might be able to obtain representation on a ‘no win no fee’ basis.  He did not know whether he would be able to obtain such representation but believed that he should be able to get it if possible because he felt at a grave disadvantage as the Respondent was represented by a Solicitor.  The Applicant did not consider using the services of a Citizens’ Advice Bureau or law centre because he anticipated that such organisations would stigmatize him because of his illness.
4  The Tribunal refused the application for a postponement.  The Tribunal considered that it was too late to make such an application on the day of the hearing.  Furthermore, the Tribunal was aware that there was no guarantee that the Applicant would be able to obtain representation on a ‘no win no fee’ basis since such arrangements are not common in the Employment Tribunal.  The Tribunal also felt that the matter should be brought on for hearing having regard to the time that had already been taken over the case.  The Tribunal was aware that the Applicant was acting in person and indicated that it would assist him in terms of procedure.  The Tribunal noted that Miss Fitzsimmons as a Solicitor owed a duty to the Tribunal to give a dispassionate view of the law.  Since the Tribunal would provide the assistance it was entitled to provide a lay person acting on his own behalf the Tribunal did not consider that the Applicant would be prejudiced by refusing the postponement.  The Tribunal took into account the justice to both sides.
11  The Applicant had not worked for nearly 30 years and therefore did not feel able to give any work examples by way of response to those questions.  The Applicant also believed that any examples he gave had to be in the last three years because he was under the impression that was the practice in other organisations.  However, the questions on the Respondent’s form were not limited to experience over any particular period.  The Applicant was not able to give any examples in respect of voluntary work because the Applicant had not done any voluntary work for any organisation.  He had sought employment with MIND and Amnesty International but neither organisation had employed him as a volunteer.  The Applicant was estranged from his family.  The Applicant had said in his twelve page written statement considered by the Tribunal that he had no friends but the Tribunal was aware that this could not be entirely correct because he had said that a friend had suggested to him that he should apply for a postponement of the hearing in order to see if he could obtain representation under a ‘no win no fee’ arrangement.”

9	Our approach to the allegations of bias and procedural irregularity is to assume that the concept of equality of arms showed in the cases in the European Court of Human Rights under Article 6 of the Convention applies.  Having regard to the terms of sections 6, 7 and 22 of the Human Rights Act, we are of the view that this assumption is one that may well be incorrect but we have made it for present purposes because in our view it is one that favours Mr Moss.  We add that, in addition, it seems to us that the concept of equality of arms as described in those cases is a concept that has in general terms been recognised by English law for some time and was a matter which, pursuant to English law, should be taken into account in considering issues of adjournment.

10	Additionally we have approached this matter on the assumption in Mr Moss’ favour which again, given the terms of sections 6, 7 and 22 of the Human Rights Act is, in our view, probably incorrect; that we should apply the test of “reasonable apprehension or suspicion” of bias rather than the test established in the English Courts of “real danger or possibility” of bias. As to these tests, we refer to paragraph 17 of the judgment of the Court of Appeal in Locabail UK Ltd v Bayfield Properties Ltd [2000] 1 AER 65.  Both tests fall to be applied objectively:  see for example a decision of this Tribunal, Peter Simper & Co Ltd v Cooke [1986] IRLR 19.  Also, as is pointed out in paragraph 17 of the judgment in the Locabail case, in the overwhelming majority of cases the application of the two tests would anyway lead to the same outcome.

11	In his written submissions Mr Moss has alleged that throughout these proceedings he has suffered a disadvantage by not being represented.  Although we accept that advantages can flow from a party to litigation or prospective litigation being represented, we do not accept that Mr Moss has suffered a significant disadvantage in this respect in this case which is effectively based on and concerned with the written application and the forms used by the Respondent for applicants for employment.

12	Notwithstanding this general assertion of disadvantage, Mr Moss made his application for an adjournment very late in the day.  Having regard to that fact, the interests of avoiding delay and, most importantly, the issues in this case which did not involve any real dispute of fact, we have concluded that there is no reasonable argument that the Employment Tribunal erred in law in not allowing an adjournment for the purposes of giving Mr Moss the opportunity of seeking legal representation on a “no-win, no-fee” basis or otherwise.

13	Turning to Mr Moss’ second ground which is based on paragraph 11 of the Extended Reasons, the allegation being that the Chairman has demonstrated bias at the outset of the hearing by his comments in paragraph 11 of the Extended Reasons.  In our view that allegation is far-fetched.  First, we do not regard the passage in paragraph 11 as a finding or assertion that in his 12-page statement the Applicant, Mr Moss, was lying.  At most, in our judgment, paragraph 11 is identifying an exaggeration by reference to Mr Moss’ earlier application for an adjournment based on the advice of a friend which was given later (i.e. just before the hearing) as opposed to during the period of his application.

14	Further and in any event, in our judgment paragraph 11 of the Extended Reasons does not indicate that the Employment Tribunal (or the Chairman) thought that Mr Moss was not telling the truth when he applied for an adjournment and it was refused.  In other words, in our judgment, this paragraph does not demonstrate that the Employment Tribunal (or the Chairman) thought that Mr Moss had not received recent advice from a friend.  Indeed, the paragraph confirms that they accepted that, at that stage he had received advice and information from a friend.  In our judgment the comment Mr Moss relies on simply does not demonstrate, as Mr Moss has alleged, any bias or prejudice against the long-term disabled with a history of “so-called mental health problems” and we would record that we are very sorry that Mr Moss has asserted and therefore feels that this is the case.  

15	The third ground can be dealt with shortly.  As I have already indicated, the evidence which Mr Moss says the Tribunal should have allowed him to admit related to “without prejudice” negotiations.  In our judgment the Tribunal did not err in law in not admitting that evidence.

16	It follows from what I have said that, in our judgment, this appeal raises no points of law that are reasonably arguable and it should be dismissed.  The Order of this Tribunal will therefore be that the appeal is dismissed subject to the leave for Mr Moss to apply that I have described in paragraph 4 this judgment.