The claimant was dismissed following an investigation which found that she had made many personal telephone calls at work, and used the internet for personal use, without permission. The ET found that she had been unfairly dismissed because the dismissal was outside the band of reasonable responses. The decision was based mainly on the fact that she had been seen making personal calls on a previous occasion but had not been warned not to. The respondent appealed, alleging bias (actual and apparent) where the EJ had given evidence 7 years earlier in a possession action brought by the local authority against a former partner of his, to which he was not party, and had shortly thereafter had a charging order placed on residential property he owned together with his partner in respect of her liability for the costs of that action. The order had been discharged by payment of the debt on the day of a hearing to grant a power of sale to enforce the order, in respect of which the judge had noted his desire to appear to object to sale. He had not disclosed these circumstances to the parties.  The respondent also alleged that antipathy towards them was supported by making a decision that Polkey and contributory fault would not apply to any award, without first inviting submissions.

The EAT rejected the appeal. They concluded that this was not a case in which someone who was a fair minded and objective observer would have concluded that there was actual bias but nor would they have concluded that there was any real possibility of it, that being of course a much lower standard. The fact of giving evidence in support of a former partner in a case quite likely brought against her by the respondent did not, in itself, indicate a mindset which was hostile to the respondent.
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Appeal No. UKEAT/0581/11/ZT

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

At the Tribunal

On 2 May 2012

Before

THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT), MR D EVANS CBE, MISS S M WILSON CBE

THE LONDON BOROUGH OF BRENT (APPELLANT)

MS Y GBAJA (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MS L PRICE (of Counsel)

Instructed by:
London Borough of Brent
Legal Services
Town Hall Annexe
Forty Lane
Wembley
Middlesex
HA9 9HD

For the Respondent
MS Y GBAJA (The Respondent in Person)

PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity

An appeal alleged bias (actual and apparent) where the EJ had given evidence 7 years earlier in a possession action brought by the local authority against a former partner of his, to which he was not party, and had shortly thereafter had a charging order placed on residential property he owned together with his partner in respect of her liability for the costs of that action. The order had been discharged by payment of the debt on the day of a hearing to grant a power of sale to enforce the order, in respect of which the judge had noted his desire to appear to object to sale. He had not disclosed these circumstances to the parties. A finding of unfair dismissal was made by the ET, and no appeal made against that other than on grounds of bias. Antipathy to the Authority was (it was said) supported by making a decision as to absence of contribution in favour of the claimant, without first inviting submissions, and by one overstatement of evidence in favour of the claimant. Held that on the established test there was no realistic possibility of bias.

1. This is an appeal against a decision of a Tribunal at Watford, chaired by Employment Judge Henry and with Mrs Newton and Mr Bean as lay members. On 4 April 2011 it held, in Reasons of that date, that the Claimant had been unfairly dismissed from her employment with Brent Council, whom we shall call Brent. The appeal is not based on any error of law in the Judgment itself but upon an allegation of both actual and apparent bias. However, it is necessary in evaluating those allegations to set out briefly what the case itself concerned to see whether there is any evidence internal to the decision which might indicate the animosity, which it is said would be regarded as a realistic possibility, if apparent bias be the test, or the probability if actual bias is taken as the test.

1. The Claimant was employed by Brent as a housing benefit and council tax assessor. She was dismissed for using the internet without authorisation during working hours and making personal phone calls without permission. This came to light in 2009. It was investigated and there was reason to think that it could be quite substantial. For instance, on 23 December 2009 it appeared from an investigation of records that the Claimant had made no less than 74 personal phone calls. The Claimant initially denied then admitted misuse of the internet and accepted that she had made personal phone calls, though she had not realised the full extent. She acknowledged that she had been aware that she was not permitted to use the internet or make personal phone calls at work. On 20 May 2010 she was dismissed for gross misconduct.

1. The Employment Tribunal unanimously found that the reason for dismissal was conduct, that there were reasonable grounds for that belief, and that it followed a reasonable investigation, but it concluded that the dismissal was outside the range of reasonable responses. The reasoning for that appears to us to be compelling. There had been no warning given to the Claimant of the potential consequences for her continued employment of her acting as she did. She acted as she did in the full view of others in an open plan office but perhaps most significant of all the employer had been aware of some use for personal purposes of the phone on an earlier occasion and no action had be taken, not even so much as a mention to the Claimant.

1. It is not at all surprising, as we have indicated, that the Tribunal should have found that the dismissal in the absence of any such warning was outside the range of reasonable responses. The fact, however, that there is no appeal against those findings on the ground of perversity, nor would one be sustainable does not answer the central ground of the appeal. It is, as we have said, an allegation of bias. The bias in the circumstances is an antipathy or hostility which it must be supposed the Judge had toward Brent.

1. In putting forward her arguments on behalf of Brent to this Tribunal, Ms Price, with commendable succinctness and focus, has accepted that there is no material whatsoever to show that there was anything in the manner of the Employment Judge's behaviour which would support actual or presumed hostility toward Brent.

1. What is relied upon is principally this history. The Employment Judge gave evidence in a case brought by Brent in 2004 to recover possession of council property from a council tenant, Ms Tull. The Judge gave evidence for her. The case against her was that she had given a false declaration around 1988 when she had applied for a council tenancy. She did not disclose that she had, as it was asserted, the right to live elsewhere in a property which she jointly owned with the Judge. She had been a former partner of the Employment Judge.

1. In 1987 she and the Employment Judge had decided that they would buy a property in joint names. In 1988 on 18 April, the property at 73 Barmouth Avenue, was conveyed to him and her. It was not ready immediately for occupation but was thereafter. In December 1987 she had given birth to their son. It appears that at some stage in 1988 the couple, as they had been, split. They have not, so far as we understand, been a couple since, although they plainly have shared parental responsibility for their son to some extent. The claim against Ms Tull was in respect of an application she made of her own to the council for accommodation.

1. When in 2004, in January of that year, the possession proceedings came before HHJ Copley at the Willesden County Court, Ms Tull called the Employment Judge to give evidence in her favour. As we understand it, that evidence was that although the property had been conveyed into joint names she had no beneficial interest in it such that she would have no rights of occupation. The Judge rejected that evidence (see page 6 of his Judgment). He did not find it entirely credible for reasons which he set out in full.

1. As a consequence of the possession order costs followed the event. Brent took out a charging order in March 2005 over 73 Barmouth Avenue. In May 2005 Brent applied for a restriction to be entered on the Land Register against the property. The Judge objected to the restriction. On 25 July 2005 Brent applied for an order for the power of sale over the property to be granted to it. That was listed for later that year. The Judge wrote to the court asking that the matter should be listed so that he could attend to give evidence. It never came to that since the sum owing by Ms Tull to Brent was paid, we have been told by Ms Price on the day of the hearing itself.

1. She argues that the test which has to be applied is that identified in a series of authorities, an accurate statement of which is currently to be found in Lawal v Northern Spirit Ltd [2003] UKHL 35. At paragraph 14 under the heading the 'Test for Bias' is set out an extract from Porter v Magill [2002] 2AC 357 in which Lord Hope, with whom their other Lordships agreed, said:

"103. 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."

1. As was observed in Lawal, paragraph 14 toward the end:

"14. […] Public perception of the possibility of unconscious bias is the key."

It added that the approach to the characteristics to be attributed to the fair minded and informed observer were succinctly expressed by Kirby J as a "reasonable member of the public is neither complacent nor unduly sensitive or suspicious". We entirely accept that that is a correct statement of the approach which we must adopt.

1. She argues, as we have indicated, that the facts demonstrate both actual and apparent bias, but since she relies upon the precisely the same facts to establish actual as she does apparent bias, we see no advantage in considering the two separately. If there is actual bias it would have to be demonstrated to us by some evidence. The evidence which is relied upon is that which supports the allegation it is said of apparent bias or apparently unconscious bias. We, therefore, approach the case to see if that is the case. If it is not, then it follows there is here no case of actual bias either.

1. Essentially from those facts Ms Price argues that the Employment Judge here had given evidence against, as she puts it, the council, had suffered the indignity of not having that evidence accepted by the Judge, but more significantly had his property put at threat by a charging order obtained by Brent over that property. Any fair minded and informed observer would consider that on those facts there was the real possibility that the Judge would have an animosity toward Brent.

1. That, she argues, is supported by the Judge's failure to mention the case at the outset of the hearing in 2011, to which this appeal relates. It is supported further by these facts which arose during or related to the hearing. First, at the conclusion of the hearing the Judge, who had indicated that there would be a hearing on liability first and remedy would be dealt with on another occasion, indicated, without first inviting any submission from either party, that the Tribunal had concluded that there was here no issue of contributory fault, nor was any deduction to the made of a Polkey kind.

1. That, says Ms Price, was surprising for two reasons. First, remedy had formally been left over, but secondly, it was difficult to understand why an allegation of contributory fault should have been discounted given that the Claimant had frankly accepted that she had used the internet and phone for personal calls in full knowledge that this was contrary to the directions of her employer and it was precisely this conduct that had led to her dismissal. This, therefore, was capable of demonstrating an irrational approach, contrary to the interests of Brent. Further, in giving Judgment the Judge mischaracterised the evidence which a witness called by the Claimant had given. This former employee of Brent, Mr Isohla, had been asked what sanction he would have accepted to have been imposed upon him if he had been found guilty of similar conduct to that of the Claimant. The Judge in the first draft of his Judgment, as it turns out, said that the witness had said that the maximum that he would have expected would have been a written warning. Objection was taken to that by Brent because their understanding of the evidence was that it was precisely the reverse. The Tribunal retired. It concluded that Ms Price was right.

1. Small though they may be taken on their own, these matters coupled with the fact of the litigation and, in particular, the taking out of a charging order, were sufficient to show a real possibility of bias to the fair minded and informed observer.

1. After the Judgment had been given it was accepted by the Judge, without any great fuss so far as we can see, that matters of contribution and Polkey would be reserved for a later occasion. The factual point on the evidence was corrected. There was a review, which was heard in May, for the Tribunal as a whole to consider whether or not there had been apparent bias by the Employment Judge. The somewhat uncomfortable position was thus reached that the Tribunal, after the event, was asked to consider whether, objectively, circumstances were such that it should have recused itself as constituted and a different judge should have heard the case.

1. The conclusion to which all three members of the Tribunal came was that there was no apparent bias. They did so upon the basis that the evidence which Employment Judge Henry had given had been solely as to his relationship with Ms Tull, their son and the purchase of the property at 73 Barmouth Avenue, and had no connection with her relationship with Brent or with her housing application. The Tribunal concluded that no evidence was given against the council.

1. It noted the length of time since the relationship between the Judge and Ms Tull had ceased. It concluded that, so far as the charging order was concerned, the involvement of the Judge was merely that of seeking to be heard at any hearing to determine an order for sale.

1. As for the evidence of Mr Isohla, the Tribunal set out a record of the notes taken by the members of the Tribunal. One recorded the evidence as being "would expect a written warning (at most) […]". The other "would have expected a written warning (as a minimum)". The Judge had no specific note as to maximum or minimum, merely "I would suggest some kind of written warning".

1. We must view the circumstances objectively, bearing in mind the need for a scrupulously balanced view as indicated by Kirby's J comments. We note first that there was here no extrinsic evidence of hostility or animosity as there frequently is in cases where allegations of apparent bias are made. No complaint, other than those we have identified, is made about the conduct of the hearing. There is no suggestion that the findings are extraordinary or perverse. Thus, the manner which the Judge adopted did not disclose the fact, if it was a fact, that he was biased against Brent.

1. The evidence arising from occurrences during the hearing similarly seem to us to be of very little weight. As to Mr Isohla's evidence, the suggestion, it seems to us, should rather fall away once it is appreciated that the notes taken by the two lay members who would have participated in the discussion prior to Judgment, conflicted on the point and the Tribunal, having been challenged, appropriately considered the challenge and accepted the submission made to it, though contrary it might be thought to the Claimant rather than Brent.

1. As for contributory fault and Polkey, we note that it is an all too frequent experience in this Appeal Tribunal that parties complain the Employment Judges do not clearly set out at the start of the hearing whether issues of contribution and Polkey will be dealt with as part of liability or as part of remedy. It is appreciated, we think, within the profession that there is a divergence of approach. This is regrettable but it does not clearly indicate any mindset determined to find facts against a party.

1. We turn then to the real substance of the case here. As to that, we have concluded that this was not a case in which someone who was a fair minded and objective observer would have concluded that there was actual bias but nor would they have concluded that there was any real possibility of it, that being of course a much lower standard. The fact of giving evidence in support of a former partner in a case quite likely brought against her by Brent does not, in itself, indicate a mindset which is hostile to the council.

1. The comments as to the quality of the evidence the Judge gave at the County Court were not centrally relied upon by Ms Price. They featured in her argument. They do not in the grounds of appeal or in her skeleton argument. But it is a matter which we do take into account. We do not, however, see in that any sufficient indication to lead to anyone objectively expecting the Judge to have an animosity toward Brent thereafter.

1. As to the application for a charging order, that follows almost inexorably once there is an order for costs, which is not discharged by payment, providing that there is property which the chargee owns. That plainly was part in contention. It is unlikely, we think, but accept there is no clear evidence, that the property was the Judge's home (if that matters, because in 2004 the County Court Judge was told that the property was occupied only by a friend of the Judge with no tenancy agreement being in place).

1. However, the real point, we think, is that the debt, and the reason for the home being charged, was owed by his former partner and if anyone was responsible for the state of affairs which presented itself it was not Brent who were acting as one would expect the council to act, but Ms Tull. As it happens there was no hearing, there was no contest, the Judge was entitled to express an interest in the proceedings - plainly he had one - and we cannot infer from that that there would be a reasonable suspicion that he had a prejudice against the borough.

1. In conclusion, therefore, we all have responded to the matters as set out to us in this appeal, in the same instinctive way, as it would seem, the President did when granting permission for it to be heard. He said that on his understanding of the facts he was not sympathetic to the appeal. He added, as we think is indeed the case, an allegation of this kind raised, as it is, by responsible counsel on behalf of a public authority should not be dismissed without a hearing. It is entirely appropriate that in these circumstances, for an allegation of this kind, that there should have been this appeal. We have concluded, however, that the appeal should for the reasons we have given be dismissed, and so it is.