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.