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Appeal No. UKEATS/0003/07/MT http://www.bailii.org/uk/cases/UKEAT/2008/0003_07_0702.html
Appeal No. UKEAT/0134/06 2903
 At the Tribunal
On 6 - 7 February 2008 
EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HF Before
THE HONOURABLE LADY SMITH
MRS A E HIBBERD
MISS S AYRE, FIPM, FBIM

MRS M A JONES AND MR A BAIRD  - APPELLANT

THE TRANSPORT AND GENERAL WORKERS UNION -  RESPONDENT


Transcript of Proceedings JUDGMENT
© Copyright 2006
APPEARANCES
For the Appellant- Mrs M A Jones and Mr A Baird (The Appellants in Person)
For the Respondent Mr J Benson, (One of Her Majesty's Counsel), Messrs Edwards Abrams Doherty Solicitors
SUMMARY

Unfair dismissal - Reasonableness of dismissal

Practice and Procedure - Bias, misconduct and procedural irregularity

The appellants, a Regional Industrial Officer and the Regional Secretary of the respondents, a trade union, were dismissed for gross misconduct in connection with the nomination process for the election of the successor to the respondents’ General Secretary, who was retiring. They were unsuccessful in their claims that they had been unfairly dismissed. Their claims were two of four that were conjoined by case management order. They appealed to the Employment Appeal Tribunal, raising three main arguments: the decision to conjoin was perverse, their application for review of the Tribunal’s judgment should have been considered by a different Chairman, and there was an appearance of bias arising from the facts that the Chairman had formerly been employed by another union (Unison) as its legal officer and that the preponderance of credibility findings had been in favour of the respondents. Arguments also advanced that the Tribunal should have concluded differently on the evidence. Appeal refused. It was too late for the claimants to appeal against the order to conjoin the cases. Rule 36(1) of the Employment Tribunal Rules required the review to be considered by the same Chairman. There was no apparent bias; that was not an inference that arose from the matters founded on. All grounds of appeal were wholly misconceived.

THE HONOURABLE LADY SMITH

INTRODUCTION

1. These are appeals in two conjoined cases against the dismissal of their claims of unfair dismissal by an employment tribunal sitting at Glasgow, Chairman Ms L J Crone, whose judgment was registered on 6 November 2006.

2. Prior to her appointment as a Chairman of Employment Tribunals, Ms Crone was employed by Unison for six years as their legal officer. She was not and never has been a member of Unison or of the respondents.

3. Mrs Jones was formerly employed by the respondents as a Regional Industrial Organiser. Mr Baird was formerly employed by them as the Regional Secretary. The relevant region in both cases was Scotland. They were both dismissed for gross misconduct following an investigation into complaints of serious irregularities surrounding the conduct of the election for the post of General Secretary in 2003. That election was occasioned by the retiral of its previous incumbent, Sir Bill Morris.

4. Before the tribunal, Mrs Jones was represented by Ms Cartwright, solicitor and Mr Baird represented himself. The respondents were represented by Mr J Benson QC. Before us, both Mrs Jones and Mr Baird represented themselves and the respondents were again represented by Mr Benson.

Background

5. The Tribunal have set out the factual background to this case in enormous detail. Its judgment runs to 576 pages which is considerably more extensive than is required. Even allowing for the fact that it contains their judgment in respect of four separate claims, it is much longer than necessary and its length detracts from the clarity of communication which a Tribunal’s judgment should always achieve, as does the absence of any indexing or summary of contents, something which could reasonably be expected in the case of any long judgment. Much information is repeated within it and it contains much material which is not relevant to the issues in the case. However, it does contain great and extensive detail regarding the relevant factual background (in respect of which the Tribunal’s findings in fact are clear) and of the nature and extent of the evidence given in this case, and we do not propose to do more in this judgment than make very brief reference to the factual matrix against which this appeal is brought.

6. The respondents are a trade union with membership throughout Great Britain. Organisationally it is divided into eight regions with Scotland (region 7) being the largest region. It is governed by a General Executive Committee, which delegates authority to the General Secretary. There is also a Deputy General Secretary. Scotland has a Regional Committee and a Regional Secretary. Mr Baird was Regional Secretary from March 2003 until his dismissal. There are also 24 Regional Industrial Officers in Scotland. Mrs Jones was such a Regional Industrial Officer from June 2000 until she was dismissed.

7. In 2003, Sir Bill Morris, who was then General Secretary, was due to retire. There required to be an election for the appointment of his successor and that required there to be a nomination process. Sir Bill Morris received an “unprecedented number” (see: Tribunal judgment at paragraph 32) of complaints regarding the nomination process. An independent investigation was instructed and carried out by Professor Ewing of King’s College, London. As regards Scotland, he reported that he had serious concerns and concluded that:

There is a strong case that an attempt was made improperly to influence the nomination process in the election for general secretary.” (p.91A of his report)

8. He also provided a list of the improper means that he considered had been employed. There was intense resistance to and a lack of co-operation with Professor Ewing’s investigation. By the time he reported, Sir Bill Morris’ successor had been elected and he, Mr Tony Woodley, instructed the Deputy General Secretary (Mr Jack Dromey) to carry out an investigation under the respondents’ Officers Disciplinary Procedure.

9. Mr Dromey duly investigated. As a result both Mrs Jones and Mr Baird were subjected to disciplinary proceedings which were presided over by the new General Secretary, Mr Woodley.

10. Mrs Jones was, in those proceedings, found to have produced forged nominations including in respect of one particular branch which had in fact nominated another candidate, thus acting dishonestly and contrary to the respondents’ rules and procedures. She was also found to have sought to cover up her wrongdoing and impede both Professor Ewing’s and Mr Dromey’s investigations, in particular by lodging what was referred to as a “bogus” grievance designed to impede Mr Dromey’s investigation. The respondents decided that she should be dismissed. She appealed, unsuccessfully.

11. The findings in respect of Mr Baird were that he had changed traditional procedures and given instructions to others to act so as to maximise the nominations for one particular candidate, that, as part of a conspiracy to further that end, he was aware of the activities of others involved in the conspiracy which were that improper influence was exerted on the conduct of the nomination process, that he gave instruction for the submission of fraudulent nominations, that he wrongly allowed the corporate identity of the respondents to be used in an advertisement in the Morning Star which was in support of one particular candidate, that he orchestrated and presided over the pressurising and intimidation of witnesses in the investigations ordered by the respondents, that he orchestrated the use of the Regional Committee and the Regional Finance and General Purposes Committee to impede the investigatory process, that he presided over an administration that excluded those who were not regarded to be part of the “team” and that it was in that culture that what was referred to in Mr Woodley’s findings as being “the scandal of the rigging of the Tunnocks pay ballot”. The decision was to dismiss him. He too appealed, unsuccessfully.

The Tribunal Procedure

12. The first ground of appeal relates to the Tribunal’s decision to conjoin four cases including Mrs Jones’ and Mr Baird’s. The second ground of appeal relates to the procedure adopted when they applied for a review of the Tribunal’s judgment. It is, accordingly, necessary to have regard to what occurred at these stages in the procedure.

13. As regards the decision to conjoin, it was taken at a case management discussion (“CMD”) on 25 July 2005, by Ms Crone. Parties did not agree that the cases should be conjoined. Both Mr Baird’s and Mrs Jones’ solicitors submitted that the cases should be heard separately, there being sufficient differences between them and that if representatives of all claimants had to be present throughout the hearing, that would increase costs. Neither solicitor made a submission that Ms Crone could not competently determine the issue of whether or not a conjoining order should be pronounced.

14. Mr Benson, for the respondent, submitted to Ms Crone at that hearing that there should be conjoining since crucially the investigation, disciplinary and appeal hearings had followed the same process in each case, there were significant issues that were common to all claims and representatives would not require to be present during those parts of the case that did not concern the particular claimant which they represented. Ms Crone accepted the submissions for the respondents and explained why did she did so. Thereafter, an order was issued determining that the cases of four claimants all of whom had been dismissed for gross misconduct in connection with the events to which we have referred, should be conjoined. We note that that would have constituted an order under and in terms of the power conferred by rule 10(2)(j) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 (“the 2004 rules”). That being so, it was appealable under rule 3(3)(b) of the Employment Appeal Tribunal Rules 1993 (“the EAT rules”), something of which any ordinarily competent employment law solicitor would have been aware. It was not, however, appealed against. What did happen was that the solicitors then acting for Mr Baird and those acting for Mrs Jones, lodged applications for review under rule 34 of the 2004 rules. We doubt whether those were competent applications since the decision to conjoin was not a decision falling within rule 34(1)(a) or (c) or a judgment falling within rule 34(1)(b). However, the Tribunal did entertain those applications and they were refused on or about 19 August 2005.

15. Since much was sought to be made by the appellants of what had passed at an earlier CMD before Miss FCC Carmichael on 24 March 2005, we should refer to it. Mr Baird and Mrs Jones were represented by their respective solicitors at that hearing also. In her note following that CMD, registered on 29 March 2005, Miss Carmichael records that there was a proposal to conjoin, that the claimants did not accept that it would be appropriate to conjoin the claims, that it was thereafter proposed that a lead case should be identified, that Mr Benson eventually accepted that such a course would not be without merit, that the claims should not be conjoined, and that a final decision on the question of a lead case should be included in the agenda for the next CMD. However, Miss Carmichael made no orders. It is plain that various matters were left over to be determined at a later stage including that of how in fact the four claims were to proceed.

16. We were advised by Mr Benson and it was not disputed by Mr Baird or Mrs Jones, that it did not prove to be possible to reach agreement on the matter of a lead case. The respondents wanted to have the cases conjoined. The claimants did not. Thus, Ms Crone was faced with having to resolve the issue of whether the cases should be heard together or separately, a matter on which parties plainly did not agree.

17. Otherwise as regards prior procedure, we note that at the CMD before Ms Crone in July 2005, she referred to ongoing document recovery and indicated that if, by 6 September 2005, parties were not satisfied as regards document disclosure then they could make further application to the Tribunal. At a further CMD on 8 December 2005, the solicitors acting for Mr Baird and Mrs Jones sought orders for the recovery of numerous documents. Most of the requests were refused, one or two were granted and further clarification was sought in respect of some of them. In respect of each document request, Ms Crone provided specific reasons for her decision in the note issued following the CMD registered on 23 December 2005.

18. We should also mention the matter of witnesses. At the CMD on 8 December 2005, Mr Baird’s solicitor indicated that at that stage, it was planned to call 12/14 witnesses for Mr Baird. Mrs Jones’ solicitor indicated that she would be calling the claimant and 3 further witnesses. By the time of the hearing, Mr Baird was acting for himself and he sought permission to call some 47 witnesses. The Tribunal deferred the decision as to which witnesses he would be allowed to call until the respondents’ evidence was completed and Mr Baird was then allowed to call a restricted number of witnesses. He ultimately had, he told us, two “voluntary” witnesses. The Tribunal records, at paragraph 23, that all parties agreed to its decision on which witnesses the claimants should be allowed to call, being postponed until the end of the respondents’ case. Mr Baird told us that he gave no such agreement; this is not something in respect of which we can properly adjudicate since it was not raised as an issue in any ground of appeal. Moreover, we are not satisfied that anything turns on it for the purposes of this appeal.

19. Otherwise as regards procedure, we observe that the hearing lasted some 38 days, ending on 2 June 2006. These claimants sought a review of the judgment that was issued on 6 November 2006, by letter dated 17 November 2006 and that application was refused for the reasons set out in a letter sent in response. The review application was considered and determined by Ms Crone.

The Tribunal’s Judgment

20. The Tribunal dismissed Mrs Jones’ claim of unfair dismissal, finding that the respondents entertained a genuine belief after reasonable investigation that she had been guilty of the gross misconduct to which we have referred and that dismissal was within the range of options open to the respondents. They reached the same view in respect of Mr Baird and dismissed his claim also. They explain in painstaking detail all that was considered by them and why it caused them to reach these conclusions. They refer, in doing so, to the relevant law on the issue of whether or not the dismissals were fair and it was not suggested in this appeal that they erred in any respect in their interpretation and application of it.

Mr Baird’s Notice of Appeal

21. Mr Baird’s notice of appeal contained 6 grounds, the first four of which we will summarise and the last two of which we set out verbatim:

    1. the decision to conjoin the cases was perverse.
    2. it was not “correct” that Ms Crone had determined the application for review of 17 November.
    3. the Tribunal’s decision was perverse, having been reached without a proper appreciation of the evidence and the law.
    4. there was a witness, Mr Trench (called by a claimant other than Mr Baird or Mrs Jones) who gave evidence and the Tribunal made no findings as to his credibility and did not take his evidence into account; they should have done so as it was “material”.
    5. “There is the appearance of bias. The Claimant perceives that there may have been bias at the Hearing. The Claimant understands that the Chairman, L Crone, was for a number of years a legal officer for the largest Trade Union, Unison, which has extensive links with the Respondents in this matter. In particular, it is understood that Unison’s full time officials are members of the Respondents’ Union.”
    6. “Further, and separately, the Tribunal makes a large number of findings as regards credibility of the various witnesses. Whilst it is recognised that credibility of witnesses is essentially a jury question, the findings are such that all matters are determined in favour of the Respondents. This is against the preponderance of the evidence, and supports the Claimant’s concerns as regards the appearance of bias.”

Mrs Jones’ Notice of Appeal

22. The only respect in which Mrs Jones’ notice of appeal differed from Mr Baird’s was that particulars were added to paragraph 3 as follows:

In particular, in the present case, it is submitted that the Respondents failed to investigate a number of matters being:-

- a failure to investigate past practice

- a failure to investigate what had actually happened with Branch 7/121 by speaking to the lay members involved

- a failure to investigate whether or not the Claimant actually received the Ballot Rules and Guidelines; and

- a failure to investigate the Claimant’s grievance and whether or not it was genuine or whether or not the Claimant had admitted that she should not have raised it.

Relevant Law

23. As to what is required before a Tribunal’s decision can be overturned on perversity grounds, not surprisingly, the cases of Yeboah v Crofton [2002] IRLR 634 and Medallion Holidays Ltd v Birch [1985[ IRLR 406 were referred to and relied in support of the respondents’ submission that it is a high hurdle and will only be overcome where it is shown that the tribunal reached a decision which no reasonable tribunal on a proper appreciation of the evidence (or, in the case of the exercise of a discretion on a proper exercise of that discretion) would have reached.

24. As regards the matter of bias, it was submitted that the appropriate test was that found in Porter and another v Magill [2002] 1 AER 465 at paragraph 103 where Lord Hope of Craighead explains:

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

25. As to the requirements for reasons, reference was made to English v Emery Reimbold & Strick Ltd [2003] IRLR 710 in support of a submission that not every factor that weighs with a judge requires to be identified and explained so long as all that is critical to the decision is identified and explained. Balfour Beatty Power Networks Ltd v Cox [2007] IRLR 63 was referred to for the same purpose since the Court of Appeal there observed that rule 30(6) of the 2004 rules is but a guide and what matters is that the essentials required by the rule can be reasonably spelt out from the tribunal’s judgment.

26. We have no difficulty in accepting that these authorities are relevant and that they support the submissions made with reference to them.

Bias Affidavits

27. In the usual way, bias having been alleged in the notices of appeal, this Tribunal, in its directions dated 30 January 2007 in response to the notices of appeal, ordered that affidavits be lodged:

“…giving details of the alleged bias …..

28. Both Mr Baird and Mrs Jones lodged affidavits dated 22 February 2007 in which they stated:

4. One of my grounds of appeal is that the Chairman was an inappropriate person to hear the case or review her own decision. She was not impartial. She has a background in Trade Unionism. In particular, she has had affiliations to UNISON. The Chairman acted as legal officer to UNISON. Accordingly she was likely to favour the Respondents or at least to have created such a perception.

5. I am entitled to a fair hearing by an impartial tribunal. A fair minded and informed observer would be entitled to conclude that the Chairman was biased or that a perception of bias was created. The Chairman ought to have declined jurisdiction in view of her trade union affiliations or at least to have declared her affiliations prior to commencement of Tribunal. Her decision ought to be set aside.

29. However, both parties attached to their affidavits unsworn documents headed “Supporting Statement” in which they set out various complaints regarding the decision to conjoin the cases, the way in which the hearing was conducted, the decisions taken regarding his applications for documents and witness orders (in Mr Baird’s case) and the refusal to allow a matter raised in the review application to be explored further. Mr Baird also complains that he felt that he was put under pressure of time and that the Chairman did not afford reasonable provision to assist him in light of the fact that he was unrepresented and on unspecified “medication”.

Submissions by Mr Baird

30. Ground of Appeal no.1: Mr Baird explained that although he had had arrangements in place so as to be able to fund the instruction of solicitors prior to the decision to conjoin, he lost his legal representation and there was then no level playing field. That was not fair and equitable. Keeping the cases separate would have been a far more effective route. He did not know he had a right of appeal. He thought that it had been decided in March 2005 that the cases would not be conjoined. The Chairman’s decision to conjoin the cases was the start of her being biased against him. That bias permeated everything.

31. Ground of Appeal no.2: Mr Baird made no specific submissions in support of this ground.

32. Ground of Appeal no. 3: Mr Baird made no specific submissions in support of this ground.

33. Ground of Appeal no.4: Mr Baird said that it was the claimants’ case that Mr Dromey had an aggressive manner when carrying out his investigations. Mr Trench gave evidence, he said, “corroborating” what the claimants were asserting. His evidence was not recorded and it should have been.

34. Ground of Appeal no. 5: Mr Baird explained that it was no secret that he and Mrs Jones had set up a separate union (“the United and Independent Union”) towards which there was hostility in union circles. He made reference to a circular issued by the STUC on 17 May 2005 to affiliated organisations advising that the United and Independent Union, which had been circulating information around Scotland in which it claimed to be a “trade union” was not in fact registered with the Certification Officer. Mr Baird evidently took objection to it on the basis, it seemed, that the STUC were misrepresenting the position. They were registered with the Certification Officer. On closer questioning however, he conceded that it was indeed the case that as at 17 May 2005, they were not registered. The STUC were antagonistic to them, he said, because they were “outwith its structures”. The Chairman had an association with one of the major unions and it should have been disclosed. It would have been acceptable if it had been one of the smaller unions with which she had had an association but it was not. As was widely known, there were links between the major unions. This showed that there was bias.

35. Ground of Appeal no.6: Mr Baird said that they were at the Tribunal for 38 days, the case was not a frivolous one and yet when they looked at the judgment they felt that it was biased and one sided.

36. Otherwise, Mr Baird made submissions in respect of the various matters set out in his “Supporting Statement” document to which we have referred. He repeatedly stated that he felt disadvantaged. The matters referred to in the statement were intended, he said, to be explanations of his bias case. For instance, he referred to his assertion that he had health difficulties and was on medication. He said that as a result of that he had had to leave the hearing from time to time and he referred to the fact that the tribunal had before them two medical reports relating to him. Those reports were, however, not contemporaneous, being dated February and May 2005. He did not point to anything that could or should have alerted the Tribunal to any possibility that the state of his health as at March - June 2006, the period during which the hearing took place, was causing him any difficulty. He did not indicate that the Tribunal were expressly advised of any health difficulty nor did he advise what the medication was that he referred to. He also sought to make much of the fact that the tribunal had quoted, in its judgment, from documents such as Mr Dromey’s report. It appeared that he may have wrongly thought that by so doing, the Tribunal were making findings in fact that the whole contents of those reports were true and accurate. These matters were, nonetheless, relied on as indicative of bias.

37. We do not propose to rehearse the matters founded on by Mr Baird under reference to his “Supporting Statement” in any greater detail as we are satisfied that we cannot properly regard them as incorporated in the grounds of appeal. They are not explanations of the bias case of which notice had been given in the notice of appeal. Only two matters are there founded on as giving rise to an inference of bias: Ms Crone having previously been employed by Unison and the preponderance of findings on credibility being in favour of the respondents’ case. The matters relied on in the “Supporting Statement” are separate and distinct.

38. Further, paragraph 6 of this Tribunal’s directions of 30 January 2007 makes it plain, in ordinary language, that what is sought is an affidavit giving details of the particular bias founded on in the notice of appeal. It is not an invitation to introduce details of new matters that are said to show bias. Even if it was, these claimants did not add new details in their affidavits. The “Supporting Statements” are not affidavits and they do not, in any event, relate to the matters specified in the affidavits or in the grounds of appeal.

39. It would, in all the circumstances, be quite wrong of us to allow the new matters set out in the “Supporting Statements” to be introduced as grounds of appeal. If we did, we would, in effect, be allowing new grounds of appeal to be introduced through the “back door”, to use a colloquialism, without having been subjected to the rule 3 sifting process and without them being advanced in a manner that gave clear notice to the respondents that they were being founded on as grounds of appeal.

Mrs Jones’ Submissions

40. Mrs Jones adopted much of what Mr Baird had said. She added some submissions of her own in support of some of her grounds of appeal.

41. Ground of Appeal no.1: Mrs Jones said that the case proved very costly. She asserted that it would only have taken 3 or 4 days if it had been heard separately. The decision to conjoin was contrary to that taken by Miss Carmichael and she did not know that she had a right of appeal.

42. Ground of Appeal no. 3: Mrs Jones referred to the text of the written submission that had been prepared by her solicitor for the Tribunal. She had advanced that what Mrs Jones had done had been done before (we note, in passing, that it was not accepted by the respondents that that was correct and the tribunal was plainly satisfied that that was a view that they were entitled to hold). There should have been more of an investigation. We note, however, that Mrs Jones had admitted to Mr Dromey that even if she did have permission to do as she did, what she had done was wrong (Tribunal’s judgment: paragraph 1016) and we were not told what difference “more of an investigation” would have made. She also asserted that, contrary to the view taken by the respondents and accepted by the tribunal, she had in fact “offered mitigation” although she did not specify what she was referring to (we note here that the respondents had found that Mrs Jones had failed to show contrition and insisted that she had done nothing wrong and that the tribunal appears to has been satisfied that that was a view that they were entitled to reach).

43. Ground of Appeal no. 4: Mrs Jones offered no separate submissions in respect of this ground.

44. Grounds of Appeal nos. 5 and 6: Mrs Jones made no reference to Ms Crone’s prior employment with Unison or the fact that the preponderance of credibility findings favoured the respondents. She focussed on, firstly, that the Tribunal had only awarded her 2 weeks pay as compensation for the respondents’ failure to provide with her a statement of terms and conditions. That was said to be evidence of bias because where there is a case against a trade union, a body which supported the importance of terms and conditions of employment being issued, it is reasonable to expect the highest possible award to be made. Secondly, Mrs Jones referred to the fact that the Tribunal had refused to make her any award under her claim for unauthorised deduction of wages. This related to the respondents having withheld a sum of wages to meet Mrs Jones’ liability for private use fuel costs in respect of the car with which the respondents had provided her. She accepted that she had had a liability to them for the sum deducted but she could not accept that the respondents were entitled to deduct it from wages due. We note that the Tribunal considered the evidence on this matter and reached a conclusion which reads as them being satisfied that it was implied into Mrs Jones’ contract that the respondents were entitled to make the deduction. It was not suggested that they had erred in fact or law on this matter. Thirdly, Mrs Jones stated that Mr Woodley had said in evidence that if she had shown up at the disciplinary hearing (she did not attend it) “she would not be here”. That was something that the Tribunal should have taken account of in her favour. Their failure to do so was evidence of bias. We were advised by Mr Benson that Mrs Jones’ reference to what Mr Woodley said was erroneous: he had said that she “might” not have been there. Finally, Mrs Jones said that she thought there was bias because there was absolutely nothing in the judgment that was in favour of the claimants. She did though accept that she was successful in securing two monetary awards, one for failure to provide her with a statement of terms and conditions and one for unauthorised deductions in respect of a sum due as holiday pay. She made no reference to the fact that other claimants had also been successful in securing similar compensatory awards.

45. Mrs Jones also referred to parts of the Tribunal’s judgment where they refer to Mr Woodley having, when giving evidence, “faced hostility from the claimants” (paragraph 956) and commented that that was not fair because it meant that they were all “tarred with the same brush”. What, however, Mrs Jones seemed to fail to appreciate was that the Tribunal clearly make the observation not for the purpose of finding any or all of the claimants at fault but for the purpose of commending the witness for, notwithstanding hostility, giving his evidence in a clear and consistent manner. It did not matter where the hostility was coming from; the Tribunal’s interest at that point in the judgment was in observing how the witness coped with it.

Submissions for the Respondents

46. Mr Benson, not surprisingly, did not accept that the new matters raised in the “Supporting Statements” to which we have already referred could properly be regarded as grounds of appeal and it was only against that stated position that he made some submissions in response to them.

47. As regards the grounds set out in the notices of appeal, he made the following submissions.

48. Ground of Appeal no. 1: Mr Benson’s principal submission was that had the claimants sought to challenge Ms Crone’s decision to conjoin the cases, they should have appealed within 42 days thereof, in accordance with rule 3(3)(b) of the EAT rules. No case was advanced for their being allowed to do so at this very late stage. It was of no avail to say that they did not know they could appeal. Both of them had solicitors acting for them at the relevant time. In any event, the decision to conjoin was unassailable. It was plainly a permissible option in all the circumstances. No argument was presented that it was not competent for Ms Crone to determine the issue.

49. Ground of Appeal no. 2: Mr Benson submitted that, in terms of the relevant rule, Ms Crone was bound to consider the review application. Furthermore, her response to the application demonstrated that she did consider it properly.

50. Ground of Appeal no.3: Mr Benson made a general submission that the Tribunal heard and saw the witnesses and in a case in which there were sharp conflicts in the evidence, they resolved those conflicts, as they were obliged to do. It was not within the remit of this Tribunal to reopen these matters. Regarding the specific matters referred to by Mrs Jones in this ground of appeal, Mr Benson referred to the paragraphs of the Tribunal’s judgment where, contrary to what was suggested, they had considered these matters and reached conclusions in respect of them (paragraphs 177-180, 229 and 1047 in respect of the first matter, 177 in respect of the second matter, 171 and 1050 in respect of the third matter, and 183 in respect of the fourth matter). He made reference to the high test for perversity and submitted that there could be no doubt that the Tribunal’s judgment was Meek compliant.

51. Ground of Appeal no. 4: Mr Trench was a witness called by another claimant. He had represented that claimant at his disciplinary hearing. The only direct evidence he had given was in relation to the disciplining and dismissal of that other claimant. He had also made some general observations. His evidence was referred to by the Tribunal (paragraphs 20, 1569, 1571 and 1602) and findings in fact were made with regard to it. To say that he gave evidence which favoured Mr Baird and Mrs Jones was to greatly overstate the position. In any event, it was not every single factor which weighed with a Tribunal that required to be spelt out: English v Emery Reimbold and Strick Ltd, Balfour Beatty Power Networks Ltd v Wilcox.

52. Grounds of Appeal nos.5 and 6: Mr Benson referred to the test for bias set out in Porter v Magill, as above. He also referred to the case of Hamilton v GMB (Northern Region) [2007] IRLR 391 as an example of a case where it was held that there was apparent bias because of one of the lay members having held a very senior position in a Union which had a clear interest in one of the issues that fell to be determined in the case. The facts could be clearly distinguished from those in the present case. Further, if the claimants’ submission was correct then Ms Crone could not sit on any case involving one of the “major” unions. That was quite wrong and it was also nonsensical to suggest that it would nonetheless be acceptable if the case involved a small union. Who was to decide what was a small union? How would that be determined? Overall, applying the Porter test, there was no basis on which it could be said that the reasonably informed fair minded observer would have thought that there was a real possibility of bias. Rather, what was happening here was that the claimants’ approach was to challenge anyone connected with the respondents’ investigations as biased, as had been apparent throughout the case, and then to turn to challenging the Tribunal chairman as biased, all because they disagreed with the outcome. The point was simply not arguable.

53. Turning to the other matters raised, whilst adhering to his primary position that they did not form the subject of any grounds of appeal, Mr Benson quite properly dealt with them each in turn and, we are satisfied, provided answers to each which were more than satisfactory although it was hardly necessary for him to do so since none of these matters whether singly or in conjunction with each other could have given rise to the inference that the Chairman or the Tribunal as a whole were tainted with bias whether actual or perceived.

Discussion and Decision

54. We have no hesitation in refusing this appeal which was and is, in our view, wholly misconceived.

55. Turning to the first ground of appeal, we reject it as coming far too late in the day. The order conjoining the cases was pronounced following the CMD on 24 March 2005. These claimants were, at that stage, legally represented and can, accordingly, be taken to have known of their right of appeal. No appeal against that order was lodged within the 42 day time limit provided for in rule 3(3) of the EAT rules. Thereafter there was a CMD on 8 December 2005. The matter of the conjoining of the cases was not mentioned at that stage. The hearing commenced on 22 March 2006 as a conjoined hearing and no objection was taken to that being the procedure that applied at that stage. The conjoining affected all four parties, not just Mr Baird and Mrs Jones. No reasons were advanced at all as to why it would be appropriate, at this very late stage, to allow an appeal against the conjoining order to be heard, an appeal which could, potentially, have had an effect on the two other claimants whose cases were conjoined who were not parties to this appeal. There was simply no basis which could justify our proceeding in that way.

56. In any event, we cannot see that such an appeal would have succeeded. Whilst it was suggested that the conjoining issue had already been determined by Miss Carmichael at the earlier CMD, that is not right, as we have already explained. The decision as to further procedure was left open at that stage. There is no doubt that it was competent for Ms Crone to consider the issue; if there had been any such doubt, we would have expected at least one of the solicitors representing the claimants to argue that it was not and that, plainly, they did not do. Then, when it came to deciding whether or not to conjoin, Ms Crone had a discretion. In all the circumstances, conjoining was an option that was open to her and we do not see that her decision to exercise her discretion in favour of conjoining could have been properly reversed on appeal. We would add , since at some points both Mr Baird and Mrs Jones appeared to rely on all their grounds of appeal as evidence of actual bias, we wholly reject the suggestion that any inference of bias could be drawn from Ms Crone’s decision on this matter.

57. Turning to the second ground of appeal, we note that the claimants make specific reference to rule 34(3)(e) of the 2004 rules. Evidently they understood that any review application would be governed by and was subject to the terms of those rules. That being so we are at a loss to understand how they can have failed to notice that the rules require that a review application be considered by the chairman or tribunal who made the original decision:

36(1) …….the decision shall be reviewed by the chairman or tribunal who made the original decision. If that is not practicable a different chairman or tribunal (as the case may be) shall be appointed by a Regional Chairman, the Vice President or the President.

58. There is no discretion in the matter and this was a case where it was clearly practicable for Ms Crone to review the decision since that is what in fact happened. We note that her impartiality was questioned in the review application but that makes no difference. The 2004 rules require that the original chairman or tribunal carry out the review of the decision unless it is not practicable for them to do so. This ground of appeal is wholly without merit.

59. Turning to the third ground of appeal, in Mr Baird’s notice of appeal, it is of such generality as to call for no specific answer. In Mrs Jones’ case, we are satisfied that, contrary to what her four allegations of “failure” suggest, the Tribunal did take the evidence and submissions on all four matters into account. They reached a conclusion with which Mrs Jones disagrees but that does not show that there was any perversity. The high test for perversity is certainly not passed.

60. Turning to the fourth ground of appeal, we note that neither claimant explained exactly how it was that Mr Trench’s general observation to the effect that Mr Dromey was aggressive in his investigations would have had the potential for producing a different result, particularly since the Tribunal expressly accepted (paragraph 1193) that Mr Dromey was forceful at times. The matter founded on by the claimants did not, for instance, show that there was a conflict in the evidence let alone a conflict on an essential matter that required to be resolved. As authorities such as English show, there is no duty on a tribunal to deal with every piece of evidence or every argument presented. It is only the issues in fact and law essential to the conclusion reached that require to be identified, discussed and determined. We do not accept that the Tribunal required to deal with Mr Trench’s evidence any more extensively than they have done.

61. Turning to the fifth ground of appeal, although both Mr Baird and Mrs Jones appeared to be accusing the Chairman of actual bias, they did not suggest that she had any actual interest in the outcome in the sense discussed in the authorities. Their complaint thus requires to be approached on the basis that it was one of apparent bias. We are, however, satisfied that that is a case which is not only unsustainable but emerged as unarguable. Given, in particular, the concession made by the claimants that it would not have been objectionable if Ms Crone’s prior employment had been with a small union, this ground is shown to have been wholly misconceived. The concession showed that Mr Baird accepted that some prior union connection would be unobjectionable but he could not, it seems, indicate where the line would be drawn between what he referred to a “large” union and a “small” union. The claimants sought to suggest that there was an objectionable “link” because all the large unions supported each other and that the STUC [Scottish Trades Union Congress] were prejudiced against them because they had set up their own union. Whether or not the large unions support each other in Scotland and whether or not the STUC were or are ill disposed to the claimants is neither here nor there.

Even if the claimants contentions are correct in that regard, the fair minded observer envisaged by Lord Hope in Porter would not begin to infer from that basis that a woman [the chair] who was not a member of the respondents or one of the other large unions but was employed by one of them [the big unions] for a period of six years prior to taking up her present post, might be biased [towards big unions].

62. We would add that we agree that the case of Hamilton provides a good example of where a problem could arise on account of prior union affiliation. As is illustrated by the facts of that case, a question of perceived (although not actual) bias, could arise. However, the facts of that case were quite different from those of the present and the discussion in it of what is required before a case of bias is made out only serves to show that there is no merit in the argument in this case.

63. Turning finally to the sixth ground of appeal, we reject it also. It too is unsustainable and it was evident from the submissions made that it was unarguable. In essence, it amounted to no more than saying that if a fact finding body resolves issues of credibility in favour of one party, then it must be biased against the other party or parties. That is a proposition that is manifestly unstateable. It is of the very essence of fact finding that evidence is accepted and evidence is rejected. It is not unusual for the losing party to find that the whole or part of his evidence has been rejected. That is not indicative of bias. In all the circumstances, we consider it restrained of Mr Benson to describe, as he did, the claimants’ case of bias as being on the “flimsiest of grounds”. We would describe it as being without foundation at all. We do, however, agree with his submission that the claimants were seeking to use it as means of advancing sundry criticisms of the way the hearing was managed by the Chairman in an effort to try to find some appeal point where in fact there was none.

64. In the event, we are satisfied that no good appeal points are advanced and we will pronounce an order refusing these appeals.


Reasons for transcribing this - other than nosepoking and trainspotting which are the main ones -

  • Tribunal bias towards the dignity of big unions, and against individual members and staff isn't admitted.
    Of course it isn't.
    There's such a contorted bit of reasoning in the second part of paragraph #61 it isn't serious, as far as I can tell. Have a look at it and see what you think. The people who loose this appeal say that their first claim wasn't taken seriously either, which is easy to believe.

    Tribunal bias is claimed by people who ought to know: long-standing senior union officials. They mention that their first tribunal chair was ex-Unison and that it's "widely known" that big unions help each other - for example their cartel, the Scottish Trades Union Congress, leaflets against a new small union. They could have added that TUC unions have a widespread unthinking respect, fund the party that controlls the government which hires the judges (Lord Faulkener hired mine), that union officials sit as "wing members" of full tribunals, and that a friendly tribunal system is discrete about their failings that employers sometimes summon union reps and officials as witnesses to try to make the tribunal back the employer.

    Tribunal bias is so obvious that it shouldn't need stating but a tribunal chair hinted at it in mine.
  • The chair writes a long essay on the relevent case law.
  • Small unions work.
    These two officials have set-up the United Independent Union, touting for membership on the internet and among Glasgow University students, then negotiating recognition agreements at employers. The union isn't financially stable yet claims to include insurance deals like "counselling and legal advice help lines available in total confidence ...debt, matrimonial, drug and alcohol, mental health" which are usually only available to senior staff of organisations. Subscription is £7.50 a month. Other examples of new small unions are the Associated Train Crew Union set-up by a train driver and owner of a protest web site who was expelled from ASLEF, and the Society of Union Employees [example of their work] which provides for UNISON staff who have traditionally joined the T&G but have decided they can do better themselves.
  • Nosepoking and trainspotting: unions reveal more of more of human failing than PLCs and this could just be because in theory they have to be a bit more open sometimes. Unions are set-up for strange reasons too, which in most cases they don't write on their web sites and I don't know when mentioning them here.


  • I will get back to you if enough people are interested in proper legal insurance for employees. For now, the email handling is handled by Aardvark Mailing List. Like Pledgebank, this list is for people who would like there to be cheap legal insurance but don't set it up because not enough people want it at once to make it viable. If you check out Aardvark who are based in Australia, you will see that they remain free bacause they don't give email addresses to list owners; if anyone hijacks your email address it will be them, not employees.org.uk, and they look honest. You can add your name to the list to be told when there are a lot of people on it and cheap legal insurance is possible.

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page sections
#0 Summery
#1 Introduction
Background
12 The Tribunals Procedure
20 The Tribunal's Judgement
21 Mr Baird Notice of Appeal
22 Mrs Jones Notice of Appeal
23 Relevant Law
27 Bias Affidavits
30 Submissions by Mr Baird
40 Mrs Jones Submissions
46 Submissions for Respondent
54 Discussion and Decision
reasons for transcribing this
foundation66 (formerly Rugby House ARP) advertising for employment lawyers & solicitors