2. APPEARANCES
For the Appellant MR J SYKES
(Representative)
Employment Cases Direct
8 Bloomsbury Square
London WC1A 2LP
EAT/843/00
3. THE HONOURABLE LORD JOHNSTON
1 This is a preliminary hearing into the appeal by the Appellant against a finding of the
Employment Tribunal that he had been fairly dismissed by his employers, the Respondents whom
he had served for a period of nine years without a blemish on his employment record.
2 The background to the matter, without going into any length, was that having apparently a
number of grievances as to the way in which certain members of staff had been treated by the
employer. The Appellant circulated a letter to a number of people, including some of prominence,
and putting it simply, did not go down the track of the recognised grievance procedure which
would have involved involving line management and the internal complaints system.
3 The employer convened a disciplinary hearing which was undertaken by two senior
members of the employer’s staff, one of whom, Mr Wright, the Warden of the London House
institution, had only been employed for about six weeks. The Employment Tribunal, having
considered the matter, determined the issue on paragraph 30, page 31 of their Decision, where they
list the reasons why they consider the employer acted fairly, and we simply do no more than refer
to them at this stage.
4 The main submission by Mr Sykes, who appeared on behalf of the Appellant, was that the
Tribunal had misdirected themselves, not least in relation to the Burchell test, as taken from the
well known case of British Home Stores Ltd -v- Burchell [1978] IRLR 379, inasmuch that he
said what, first the employer and secondly the Tribunal, should have done was to look at the
substance of the grievances that were being circulated in the letter, and determine by reference to
them, whether or not the conduct of the employee, the Appellant, was as outrageous as apparently
the Respondents determined it to be. This, he said, meant that the Tribunal had not properly
EAT/843/00
- 1 -
4. applied the second part of the Burchell test to determine whether or not the employer had acted
reasonably, and therefore their decision was flawed.
5 Dealing first with that argument, we consider that it has no substance. It is important to
hear in mind that the first stage of the Burchell process deals with investigation, but becomes
irrelevant if there is an agreement or a complete understanding as to the facts which led to the
basis for dismissal. The second half of the test still has to be applied, namely whether the
employer acted reasonably in all the substantial merits of the case in dismissing. We are
entirely satisfied that in the present case the Tribunal did apply its mind to that question and
upon the reasons given, we consider this was a decision that they, the Tribunal were entitled to
reach, and thus it is one with which we will not interfere.
6 However a wholly different matter was raised by Mr Sykes before us which is shadowed
in the Notice of Appeal in paragraph 6.5.1 and 6.5.2. Without rehearsing the detailed
submission, it was to the effect that the Appellant did not get a fair hearing from the employer,
firstly because (and this is not featured in any way in the Tribunal’s findings) a senior employee
of the employer Respondent apparently wrote, so Mr Sykes told us, to the Tribunal members in
advance of the hearing indicating the view of the employer, namely that this conduct was
outrageous and worthy of instant dismissal. This, it was said, was bound to prejudice the mind
of the employees, however senior, conducting the appeal, not least that of Mr Wright, since he
was a relatively new employer. In any event, he submitted that this was a close-knit
organisation, everybody knew everybody else, and the likelihood, at least on the face of it, of
the Appellant getting a fair hearing conducted by employees working in the same institution as
that level was very uncertain.
EAT/843/00
- 2 -
5. 7 We emphasise that we approach this question not by reference to the Human Rights
Convention or Article 6 thereof, but rather on the simple, fundamental and long established
rules of law that, in any quasi judicial position or situation, both parties, and particularly the
party who is being investigated, namely the Appellant, is entitled to a fair and unbiased hearing,
and that is to be judged not by whether or not, in fact, any bias was operated, but, more,
whether, looked at objectively, bias could be seen to have the opportunity to exist, and if there
was any doubt about that, the recent House of Lords cases and Court of Appeal cases on this
whole question as summarised in Locabail, particularly by Lord Woolf, have put the matter
beyond doubt.
8 The difficulty we have, of course, is that as Mr Sykes recognised, there are gaps in the
Tribunal’s recording of the evidence and argument and reasoning, if the matter had proceeded
along the lines that he maintained it did.
9 In view of the fact that we are persuaded that if what is being said to us is representative
of the position that was tendered before the Tribunal, and not considered by them, would raise a
very serious question, we consider the appropriate thing to do, in the interests of justice, is to
send this case on to a full hearing on the issue of bias only and, at the same time, remit back in
the interim, to the Chairman of the Tribunal, to determine by reference to notes made by her at
the time as to whether or not this question of bias was addressed in evidence or addressed in
argument. On the basis of what answers are determined to those questions, the full hearing will
be able to determine on a proper basis whether or not there is substance in this point.
10 In these circumstances, this case will be allowed to proceed to a full hearing on that
matter only.
EAT/843/00
- 3 -
6. 7 We emphasise that we approach this question not by reference to the Human Rights
Convention or Article 6 thereof, but rather on the simple, fundamental and long established
rules of law that, in any quasi judicial position or situation, both parties, and particularly the
party who is being investigated, namely the Appellant, is entitled to a fair and unbiased hearing,
and that is to be judged not by whether or not, in fact, any bias was operated, but, more,
whether, looked at objectively, bias could be seen to have the opportunity to exist, and if there
was any doubt about that, the recent House of Lords cases and Court of Appeal cases on this
whole question as summarised in Locabail, particularly by Lord Woolf, have put the matter
beyond doubt.
8 The difficulty we have, of course, is that as Mr Sykes recognised, there are gaps in the
Tribunal’s recording of the evidence and argument and reasoning, if the matter had proceeded
along the lines that he maintained it did.
9 In view of the fact that we are persuaded that if what is being said to us is representative
of the position that was tendered before the Tribunal, and not considered by them, would raise a
very serious question, we consider the appropriate thing to do, in the interests of justice, is to
send this case on to a full hearing on the issue of bias only and, at the same time, remit back in
the interim, to the Chairman of the Tribunal, to determine by reference to notes made by her at
the time as to whether or not this question of bias was addressed in evidence or addressed in
argument. On the basis of what answers are determined to those questions, the full hearing will
be able to determine on a proper basis whether or not there is substance in this point.
10 In these circumstances, this case will be allowed to proceed to a full hearing on that
matter only.
EAT/843/00
- 3 -
