Appeal No.UKEAT/0114/05/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 October 2005

 
Before
HIS HONOUR JUDGE PETER CLARK
(SITTING ALONE) 

 

 
CORUS UK LIMITED	APPELLANT

 

 

MR ROGER JAMES YOUNG	RESPONDENT

 
Transcript of Proceedings
 
JUDGMENT

 

	APPEARANCES

 

For the Appellant	MR DAN JONES
(Solicitor)
Employment Legal Services
Corus Strip Products UK
Abbey General Offices Port Talbot Works
Port Talbot SA13 2NG	
 
For the Respondent	MR JONATHAN DAVIES
(Of Counsel)
Instructed by:
Russell Jones & Walker Solicitors
Landore Court
51 Charles Street
Cardiff CF10 2GD	

SUMMARY

Practice and Procedures
(8P)
 
ET member failed to disclose past connection with employer.  Application to revise on second day of hearing granted, unopposed.  Application for discharge penalized in costs for second day on grounds of late application.  Appeal allowed; costs order set aside.

HIS HONOUR JUDGE PETER CLARK
 
1.           This is an appeal by Corus UK Ltd, formerly British Steel Corporation (BSC), the Respondent to proceedings brought by the Claimant, Mr Young, in the Cardiff Employment Tribunal.  Corus appeals against a costs order made against it in favour of the Claimant by a Chairman, Mr Geoffrey Davies, sitting alone for that purpose at Cardiff on 9 December 2004.  The Chairman’s order, with reasons, was promulgated on 21 December 2004
 
Background
2.           The Claimant was employed by the Respondent as a team member on the pickle line at their Llanwen Works, Newport.  His employment began in September 1991 and ended with his summary dismissal for alleged gross misconduct on 7 April 2004, that is, leaving the works before the end of his shift and failing to clock off.  Following his dismissal he commenced these proceedings by an Originating Application presented on 13 May 2004.  His complaint named as his representative Roy Rickers of the ISTC union.
 
3.           Solicitors were later instructed on his behalf and those solicitors filed amended, detailed Particulars of his complaint   He raised three claims:
	
	(1)	direct sex discrimination
	(2)	automatically Unfair Dismissal contrary to section 100(1)(c) ERA 1996 and,
	(3)	ordinary Unfair Dismissal
 
It is material to this appeal to observe that reference is made in those Particulars, both at paragraphs 11 and 12 to a Mr Robert Burns.  At paragraph 11 it is said that Mr Burns was present at a meeting with the Claimant, at which he was told that he would be issued with a verbal warning relating to time taken off work.  At paragraph 12 it is said that Mr Burns (described as the Area Human Resources Manager) was present at a later meeting in April 2004 leading to the Claimant’s dismissal.
 
4.           The claims were resisted and came on for a three day substantive hearing before a full tribunal consisting of Mr Davies and two lay members, Mr F T Duggan and Mr G I Powell on 8 December 2004.  Evidence was heard on the first day and the hearing was adjourned until the following day.
 
5.           On the morning of 9 December, at the commencement of the hearing, Mr Jones, Corus’ solicitor and advocate, made an application for one of the Tribunal members, Mr Powell, to recuse himself.  The application was unopposed by Mr Jonathan Davies appearing on behalf of the Claimant.  That member did recuse himself.  The Tribunal discharged themselves and the hearing was adjourned to recommence before a different Tribunal.  Application was made on behalf of the Claimant for the costs of the second day, being Counsel’s second day refresher and expenses plus solicitors’ costs and VAT totalling £1,220.68.  The Chairman, sitting alone to hear the costs application, ordered Corus to pay those costs.
 
Recusal
6.           The test for determining whether a court or tribunal has the appearance of bias is currently to be found in the opinions in the House of Lord in Porter v Magill [2002] 2 AC 357.  The question is whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.
 
7.           The background to Corus’ application for Mr Powell to recuse himself was this.  Mr Burns, mentioned in the full Particulars of the Claimant’s Originating Application, attended the tribunal hearing on 8 December as an observer.  It was not intended that he should give evidence and indeed he was not called as a witness at the subsequent substantive hearing following which, I am told, Mr Young’s claims were dismissed.  Mr Burns arrived at 10.45 am with the hearing in session and saw Mr Powell sitting on the Tribunal panel.  His reaction, later that day, the Chairman records in paragraph 6(4) of his Reasons, was to think, “Oh, that’s bad luck.”
 
8.           It seems that after the first day’s hearing had concluded Mr Burns told Mr Jones that Mr Powell was known to him.  Apparently Mr Powell was a former employee of BSC at its Ebbw Vale Works.  He had been a convener during that employment and then became a full-time official of the Transport and General Workers Union and as such he had what is described in the Chairman’s Reason’s as a somewhat difficult relationship with Mr Burns.  When Mr Burns was working at one of Corus’ plants there was a breakdown in relations with Mr Powell over the introduction of team-working and difficulties between the two men in respect of the company’s Coded Metal business.
 
9.           On this basis the application for recusal was made, it being said that in a number of respects in these proceedings the Claimant had criticized Mr Burns.
 
10.       I have earlier observed that the application for Mr Powell to recuse himself was unopposed and acceded to by the Tribunal.  Nevertheless, the Chairman specifically found that Mr Powell, his colleague on the Tribunal, was not in default leading to the successful recusal application.  I regret to say that I am unable to agree.
11.       The Chairman was referred to University College of Swansea v Cornelius [1988] ICR 735.  In that case it transpired that one of the Employment Tribunal lay members was the mother-in-law of a member of the employer’s internal appeal panel which heard and dismissed the Claimant’s appeal against her dismissal.  The Tribunal member had not disclosed that connection during the hearing.  In the EAT Wood J formulated the question for the EAT in this way (742D);
 
“We ask ourselves whether a person acting in a judicial capacity would think that the situation which existed here should have been made known to the parties in case they wished to take objection.  Whilst we appreciate that it never crossed the mind of the member concerned; it nevertheless seems to us that the answer to this question must be ‘yes’.”
 
Pausing there, I see no reason to depart from that formulation in the case of Employment Tribunal lay members in the light of the Court of Appeal observations in Locabail [2000] IRLR 96 paragraph 25, to which Mr Jonathan Davies has referred me, where Woolf LCJ said:
“Nor at any rate ordinarily, could an objection be soundly based on the judge’s…employment background or history…”
 
12.       In Locabail the Court was dealing with professional judges, not lay judges; Cornelius is not referred to in the judgment and it must be remembered, in this case the Tribunal member did stand down following challenge.
 
13.       The Chairman records (Reasons paragraph 9) Mr Jones’ submissions in opposition to the Claimant’s application for costs.  It was argued that Mr Powell ought to have disclosed his past employment with BSC at the outset.  His failure to do so ultimately led to the successful, unopposed application for him to recuse himself on the second day of hearing.  The unfortunate state of affairs was not of the Respondent’s making, but the Tribunal member.

14.       The Chairman rejected that submission.  He did so, as Mr Jones submits, in part based on a finding of the full Tribunal, including Mr Powell, leading to the decision of the Tribunal to discharge itself.   At paragraph 6(6) of the reasons given by the full tribunal for that decision it is said:
“It was not a question of Mr Powell’s default but rather the making of the Respondent’s application and the stated details of same that has necessitated the Tribunal’s Order (i.e. for the Tribunal to discharge itself and for the hearing to commence before a fresh tribunal).”
 
15.       The Chairman returned to this theme when giving his reasons for making the costs order (paragraph 11).  He did not accept that responsibility for the aborted hearing rested with Mr Powell, having earlier reached that conclusion on the face of the Tribunal’s reasons in consultation with his lay colleagues including Mr Powell himself.  The Respondents may be forgiven for recalling the deathless answer given by Miss Mandy Rice-Davies under cross-examination in the trial of Dr Stephen Ward.
 
16.       I return to the question formulated by Wood J in Cornelius, not in terms posed to himself by the Chairman in the present case; ought Mr Powell to have made a declaration at the outset of the hearing in case either party wished to take objection to his sitting on the tribunal.   In my view the answer clearly is yes for these reasons.
	
	(1)	He was a former employee of BSC now Corus.
	(2)	As an official of the Transport & General Workers Union he had been engaged in representing employees of BSC.
	(3)	I infer that before the hearing commenced the members of the Tribunal had, at the very least, read the pleadings in the case; if not they ought to have done.  Perusal of the Claimant’s Particulars of Complaint contained clear references to Mr Burns at paragraphs 11 and 12, referred to in the full Tribunal’s reasons at paragraphs 6(3), although at paragraph 6(2) the Tribunal observed that Mr Burns did not declare himself as a witness, he was attending as an observer (which was correct), it is then said that Mr Powell could not have been on notice of any concern regarding Mr Burns.  I confess to some difficulty in reconciling that finding with the two references to Mr Burns in the Particulars of the Claimant’s complaint, then referred to at paragraph 6(3) of the Reasons.
	(4)	The best evidence that Mr Powell ought to have made a declaration is the fact that, when challenged, he stood down.  There would be no reason to do so if the appearance of partiality could not properly be challenged.
 
17.       Had that declaration been made the Respondent would; it seems to me based on the line actually taken by them on the second day, have objected to his sitting.  He would then have stood down and the hearing could continue with a replacement member or it would have been aborted on the first day thus saving the costs of the second day, the subject of this appeal.
 
Costs
18.        The relevant costs regime is not identified in the Chairman’s reasons.  It remained that set out in Rule 14 of the Employment Tribunal Rules of Procedure 2001.  The relevant provision, relied upon by the Claimant in support of this costs application, was that the Respondent, in conducting the proceedings had acted unreasonably in waiting until the second day before taking objection to Mr Powell sitting on the Tribunal.
 
19.       In finding that they did so act the Chairman, in my judgment, misdirected himself in failing to ask and answer the specific question posed in Cornelius, a case cited to him.  Had he done so the answer would, for reasons I have given, inevitably be that a declaration ought to have been made with the result that the second day’s costs would not have been wasted.  
 
20.       In these circumstances there was no warrant, in my view, for laying at the door of the Respondent responsibility for those costs, incurred by both parties, thrown away, on the basis that Mr Burns ought to have spoken up sooner.  Further, I accept Mr Jones’ point that the Tribunal appears to have made assumptions about Mr Burns’ knowledge of Tribunal procedure which close examination would not have borne out.  True it is, as Mr Jonathan Davies submits, that no evidence was called on the costs issues.  However, that does not entitle the Tribunal or, finally the Chairman, to speculate as to Mr Burns’ previous experience.  I am told, and it is not disputed, that Mr Burns’ visit to the Cardiff Employment Tribunal on 8 December last, was his first to any tribunal.
 
21.       I should deal here with a point raised in this appeal by Mr Davies.  He submits that when a party considers that there is a risk of bias he should not decline to participate in the proceedings but rather appeal the final decision on the issue of bias.  He relies on the Court of Appeal authority of Turner v Harada Ltd [2001] EWCA Civ 599 paragraphs 35-36 per Pill LJ, approving the approach of Peter Gibson J in Peter Simper & Co v Cooke [1996] IRLR 19.  It is plain that ordinarily a party ought not to withdraw from proceedings, but that is not what happened here.  In my view the Respondent was perfectly entitled to challenge Mr Powell’s continued participation on the tribunal in this case once the connection had been made; particularly where that challenge was in the event unopposed and acceded to by the Tribunal.

 
Conclusion
22.       In my judgment the Chairman misdirected himself in failing to ask the correct question, ought Mr Powell to have made a declaration and then reaching a view as to whether or not the second day’s costs, the subject of the Claimant’s application would have been wasted, but instead allowed himself to be influenced by a joint view taken with Mr Powell himself and the third Tribunal member that Mr Powell bore no responsibility for the events which subsequently transpired.
 
23.       In these circumstances I shall allow this appeal and set aside the Chairman’s costs order.  I shall not remit the matter to the Tribunal for reconsideration.  For the reasons given earlier in this judgment I find that the cause of the wasted second day costs was not unreasonable conduct on the part of the Respondent, but the failure of the Tribunal member, Mr Powell, to make the necessary declaration of interest at the commencement of the proceedings.