Galloway v Barnet Enfield & Haringey Mental Health NHS Trust

On the 21^st December, 2006, following a disciplinary hearing (“the disciplinary hearing”) held on that day, the Respondent employer (“the Trust”) terminated the employment of the Appellant employee (“Mr. Galloway”), on the ground of gross misconduct, involving the viewing of pornographic material on the internet while at work.

Dissatisfied with his dismissal, Mr. Galloway took the matter to an Employment Tribunal. By its Judgment dated 13^th November, 2008, the Employment Tribunal (“the Judgment” and “the Tribunal” respectively) held, so far as material to this appeal:

By its further Judgment on Remedy, dated 10^th February, 2009 (“the remedies Judgment”) and insofar as here material, the Tribunal ordered the Trust to pay to Mr. Galloway the sum of £3,544.00 in respect of unfair dismissal and his successful claim under the DDA.

Mr. Galloway sought leave to appeal various aspects of both the Judgment and the remedies Judgment to the Employment Appeal Tribunal (“the EAT”). Such leave was refused on paper in respect of Mr. Galloway’s applications relating both to the Judgment and the remedies Judgment. Thereafter, the matter of leave proceeded to oral hearings, pursuant to Rule 3.10 of the Employment Appeal Tribunal Rules (SI 1993/2854) (“Rule 3.10”). By order dated 13^th May, 2009, HHJ Peter Clark dismissed Mr. Galloway’s application in respect of the Judgment (“the 13^th May order”). Subsequently, by order dated 21^st August, 2009, HHJ Ansell dismissed Mr. Galloway’s application in respect of the remedies Judgment (“the 21^st August order”).

Undaunted, Mr. Galloway next sought permission to appeal to the Court of Appeal and now enjoyed greater success. As to the Judgment, permission was granted by Pill LJ, on paper, on the 27^th November, 2009. As to the remedies Judgment, Elias LJ initially refused permission on paper but, subsequently, on the 20^th April, 2010, after a renewed oral application and in the light of Pill LJ’s ruling, granted permission to appeal.

For its part, on the 1^st February, 2010 (so in the interval between the two grants of permission to appeal to Mr. Galloway), the Trust obtained permission to cross-appeal from Elias LJ, in order to contend that on a proper application of the statutory provisions and on the facts found, the Tribunal ought to have held that Mr. Galloway was not unfairly dismissed.

The procedural history is not quite yet complete. The matter came before the full Court for the hearing of the appeal on the 20^th May this year but was adjourned. However, the Court gave directions (“the 20^th May directions”) for various inquiries to be made in connection with the issue of bias, of which more below.

Against this background, the appeal has now been heard. Although the appeal is an appeal against the refusal of permission to appeal to the EAT, it has proceeded as a full appeal to this Court in the normal way: see, Lambe v 186K Ltd [2004] EWCA Civ 1045; [2005] ICR 307, esp. at para. 84.

On this hearing, Mr. Galloway appeared in person and, if I may say so, presented his case with courtesy and moderation. Additionally, the Court has treated Mr. Galloway as adopting all the arguments contained in the skeleton argument prepared by Ms. Braganza of counsel, instructed on behalf of Mr. Galloway, for the May, 2010 abortive hearing. The Trust was represented on this appeal by Mr. Choudhury of counsel (who did not appear before the Tribunal). I would at once wish to express my appreciation for the clarity of his submissions and – in equal measure - for his assistance extending, in the best traditions of the Bar when dealing with an unrepresented party, to alerting the Court to points which might assist Mr. Galloway and undermine his own arguments.

The principal issues on this appeal can be summarised as follows:

Mr. Galloway commenced employment with the Trust in 1994, as a maintenance electrician. Subsequently, he became Facilities Manager and still later, Information Officer. It is common ground that Mr. Galloway is disabled for the purposes of s.1 of the Disability Discrimination Act 1995 (“the DDA”). His disability is haematura hypertension, a neurological problem, causing serious incontinence difficulties and pain. It is not entirely clear from when he became disabled but for present purposes it matters not.

From the 16^th June 2003 to the 2^nd February, 2004, Mr. Galloway was absent from work on account of sickness. On his return to work, he was supported by his line manager, a Ms. Jenner. It would appear that despite a good relationship between Mr. Galloway and Ms Jenner at this stage, there was some unhappiness on the part both of Mr. Galloway and the Trust. None of that, however, is of any consequence for the purposes of the appeal.

In or about late January 2005, unhappiness was voiced by two fellow employees that Mr. Galloway was accessing inappropriate websites. Neither made a formal complaint. The matter was, however, explored by the Trust’s management, leading to a report, “Websense 1” – of which more below. For the moment, it may be noted that Websense 1 consisted of a long list of websites apparently accessed by Mr. Galloway, many of which, as the Judgment put it, “appeared not to be work related”; on the face of it, at least a number of these were pornographic. Websense 1 was thereafter overlooked and played no part in the Trust’s decision to dismiss Mr. Galloway.

In about November 2005 there was, as the Tribunal expressed it, “an explicit image circular ranging around” on the Trust’s internet. The image was not available to be produced to the Tribunal. At this point, Ms Jenner informed the Human Resources (“HR”) department of the Trust about the reports she had received in January 2005, concerning Mr. Galloway’s alleged inappropriate website use. An investigation followed, as to Mr. Galloway’s website use over the period February to June 2005. The investigation resulted in a report “Websense 2”, to which I must return in due course – and which was central to the Trust’s decision to dismiss Mr. Galloway.

In the meantime, Mr. Galloway commenced long term sickness absence on the 6^th July. In the event, he did not return to work at all for the 17 months prior to his dismissal.

As the Tribunal found, the Trust tried on numerous occasions to set up an “investigatory meeting” for Mr. Galloway to respond to the issues raised in Websense 2. In or about March 2006, the Trust was advised by Dr. Boyd, its Occupational Health adviser, that Mr. Galloway would be fit to attend such a meeting, as he had recently met with Dr. Boyd. Mr. Galloway, however, did not attend a meeting which had been arranged for the 27^th March.

In June 2006, Dr. Boyd repeated his advice that Mr. Galloway was fit to attend a meeting, assuming only that he was “properly represented by trade union, colleague or similar status”. The Trust tried again, with a view to a meeting on the 30^th June but received no communication from Mr. Galloway and he did not attend. As the Tribunal noted, Mr. Galloway was, however, able to communicate with the Trust in respect of medical retirement.

On the 27^th November, 2006, Mr. Galloway was sent a letter (“the 27^th November letter”) inviting him to a disciplinary hearing on the 12^th December, 2006, “to consider an allegation that he had been using trust equipment to access pornographic websites”. Mr. Galloway was referred to a number of disciplinary rules and was provided with a copy of a management report and Websense 2. Mr. Galloway was asked, amongst other things, to confirm his attendance; he was reminded that he had not attended several invitations to contribute to the investigation. The 27^th November letter concluded that the Trust reserved the right to proceed with the hearing in his absence if he did not attend on the 12^th December.

There followed an exchange of communications concerning a new job description for Mr. Galloway, as Information & Systems Manager.

On the 11^th December, Mr. Galloway replied to the 27^th November letter, saying that he would be unable to attend the 12^th December hearing on account of illness. He denied the allegation made against him and stated that he had a defence. He asked for the hearing to be adjourned until he was well enough to attend. He enclosed a medical certificate covering 13 weeks.

In the light of this letter, the Trust adjourned the hearing until the 21^st December, sending Mr. Galloway a letter dated 12^th December (“the 12^th December letter”) to this effect. The 12^th December letter was drafted in similar terms to the 27^th November letter.

On the 20^th December, Mr. Galloway wrote to the Trust, saying that he would be unable to attend the 21^st December hearing (i.e., “the disciplinary hearing”), on the ground of illness. He stated that he did not agree to the hearing proceeding in his absence; he denied the allegation made against him and repeated that he had a defence. He asked for the hearing to be adjourned until he was well enough to attend and enclosed another medical certificate, dated the 19^th December, 2006.

On this occasion, the Trust proceeded with the disciplinary hearing in Mr. Galloway’s absence. The Tribunal found the following facts:

Subsequently, as recorded in the Judgment:

“ On 17 October 2007, the Respondent became aware that the Claimant had been convicted in the Magistrates Court of building regulation breaches in respect of a private business matter relating to events taking place on 22 September 2006, when he was on long term sick leave.”

Moving away from the history, I turn to introduce some of the key passages and central findings contained in the Judgment.

I start (chronologically) with the “Websense 1” report (“Websense 1”), which the Trust had sought to adduce in evidence on the third day of the hearing in August 2008. I have already noted its preparation in early 2005. The Trust conceded that it had not relied upon Websense 1 in dismissing Mr. Galloway and that its contents had never been put or outlined to Mr. Galloway. For his part, Mr. Galloway objected to Websense 1 being adduced in evidence. The Tribunal’s decision was to exclude Websense 1. It was late; Mr. Galloway was in the course of conducting cross-examination; it was at most ancillary to the issues which the Tribunal had to decide. The Tribunal therefore ruled against the Trust on this question and maintained its ruling in the face of further applications from the Trust, including one at the commencement of the October 2008 hearing.

The Tribunal did, however, indicate:

“ ….that it would not restrict the Respondent’s counsel from putting relevant questions to the Claimant based on Websense 1 for the Claimant to either accept or deny but that would be the extent of our consideration of matters in that regard.”

Mr. Galloway was indeed asked questions based on Websense 1; in that regard, the Tribunal said this, in para. 59 of its Judgment, a passage to which I must later return:

“ The Claimant was asked questions that were apparently related to websites visited as recorded in ….Websense 1. The Claimant was asked whether he had accessed for example, pleasurefind.co.uk, jordonhardcore.co.uk, clubrepx.co.uk and liveyoungsluts.co.uk and teen18.co.uk. The Claimant denied accessing any of these websites in January 2005 or at all. The Tribunal noted that specific website names were able to be put to the Claimant apparently from the Websense 1 report.”

I should add that, before this Court, Mr. Galloway confirmed that, at the hearing before the Tribunal, he had denied all the suggestions put to him based on Websense 1.

Reference has already been made to the “Vogler report” (“Vogler”), which the Tribunal refused to allow Mr. Galloway to adduce in evidence. This was an expert report, upon which Mr. Galloway sought to rely in order to rebut the Trust case and, in particular, the Websense 2 report. The hearings before the Tribunal occupied the 5^th – 8^th August, 2008 and the 13^th – 17^th October, 2008. On the 13^th October, Mr. Galloway, for the first time applied to introduce Vogler in evidence. It would appear that the Trust’s representatives had not previously seen Vogler and were not aware of its existence. The Trust objected to it being allowed in evidence and pointed to Mr. Galloway having closed his case in the course of the August hearings. Faced with an inevitable adjournment if Vogler was adduced in evidence, the Tribunal excluded it. The Tribunal pointed to the fact that the issue to which Vogler related had been live from the commencement of the proceedings, that there had been two pre hearing reviews and that it had made orders in relation to disclosure and witness statements. The Tribunal acknowledged that it was excluding potentially relevant evidence but it did so:

“ …..on balance, in accordance with the overriding objective of of dealing with the matter expeditiously, saving expense and ensuring the parties were on equal footing...”

The Judgment contains a helpful description of the “Websense 2” report (“Websense 2”) and the evidence it contained:

“ The Websense 2 report that the Claimant was sent did not provide any details of explicit website names that he was said to have accessed. This was seemingly in contrast to…. Websense 1….Websense 2 recorded domain numbers for the offending sites that the Claimant was said to [have] accessed. Websense 2 recorded domain names for non offending sites such as ‘Guardian.co.uk’ but none of the alleged offending sites in Websense 2 actually had a domain name. Further, no images from the offending website domain numbers could be produced as the sites were no longer in operation. The domain numbers related to what was categorised as ‘Adult Material: Sex’ and Websense 2 stated that the Claimant had accessed such sites for over 17 minutes during the review period. A significant majority of the records indicated ‘Adult Material: Sex’ websites were visited between 0 and 3 seconds. However, there were occasions when such categorised sites had been visited for longer periods of up to 3 minutes. ”

I come to Mr. Galloway’s defence to the allegation against him. He had, it will be recalled, never indicated to the Trust what it was – other than asserting that he had a defence. Before the Tribunal, however, he stated that other employees had access to his user name and password. He had not accessed the websites; other staff must therefore have used his login details. He argued that there was no information establishing that the websites in question were in fact Adult Material Sex sites. He also submitted that the Websense records could have been the result of a computer pop up virus.

Importantly, the Tribunal rejected this defence, saying this:

“ We do not accept that other staff used the Claimant’s user name and password to access sites. The Respondent’s policies in this regard were clear and sensible and we find that the Claimant must have been aware of the need to maintain security in accessing the Respondent’s computer system. We carefully considered the documentation relating to the Websense software [programme] and were unable, on the evidence we admitted, to conclude that it was unreliable or that it ….recorded a virus from internet pop up pages. In making these findings we accept that the Vogler report may have been relevant….but for reasons outlined above did not allow it to be admitted in evidence.”

Against this background, the Tribunal concluded that the Trust had established a “potentially fair reason” for dismissal:

“…namely conduct, in the Claimant accessing Adult Material sex internet sites in contravention of its policies.”

Nonetheless, by a majority, Mr. Bulford dissenting, the Tribunal concluded that the dismissal was unfair.

“ The majority concluded the dismissal was unfair as the Respondent made no attempt ….to get an updated medical opinion, it made no enquiries to find out what the defence the Claimant was asserting. We find a reasonable employer in these circumstances would have asked the employee what the defence was before actually proceedings with the meeting. Ms Gregariou acted too hastily, no doubt on the basis that she had been frustrated by the Claimant in the past. Mr. Narty made no further enquiry into the curious features of Websense 2…, in particular the reasons for [the] absence of specific internet page names or an explanation for the fact that a significant majority of the records indicated ‘Adult Material: Sex’ websites were visited between 0 and 3 seconds. Mr. Narty acted hastily on the basis that he believed the Claimant would appeal any adverse decision.”

On the footing that he had been unfairly dismissed, the Tribunal (by the same majority) concluded that he would have been fairly dismissed within a short period:

“ …following receipt of an updated medical report, receipt of the Claimant’s defence and receipt of answers to further enquiries into curious aspects of the Websense 2 report.”

In the event, the Tribunal’s decision was that he would have been fairly dismissed by no later than the 27^th January, had the disciplinary hearing been adjourned and had the Trust taken the various steps the Tribunal indicated it should have taken.

As to Mr. Galloway’s DDA complaints, these were all dismissed save in one respect, namely, failing to make a reasonable adjustment in relation to the disciplinary hearing. In that regard, the Tribunal unanimously held as follows:

“ We accept that the Respondent dismissed the Claimant on grounds of gross misconduct. However, we have concluded that the Respondent, by proceeding with the disciplinary hearing in the Claimant’s absence failed to make …reasonable adjustments to accommodate the Claimant’s disability. The relevant provision, criterion or practice in this regard was the requirement to be able to attend and deal with a disciplinary hearing at the Respondent’s offices. The Claimant had a medical certificate to indicate that he would be unable to attend for a 13 week period. He was therefore at a substantial disadvantage in comparison to persons who were not disabled. No efforts or attempts were made to ascertain when the Claimant may be able to attend a meeting. No further medical evidence was sought. No discussion had regarding an alternative venue for the meeting. The Claimant was not specifically invited to put his defence in writing for consideration of a hearing in his absence. We therefore unanimously conclude that these would have been reasonable adjustments in these circumstances and the Respondent failed in its duty in this respect.”

In the light of the argument as to the cross-appeal, it is necessary to look in a little detail at the remedies Judgment.

First, the Tribunal recorded that as Mr. Galloway would have been dismissed by, latest, 27^th January 2007 and as at the time he was on sick leave receiving no pay, he was not entitled to a compensatory award.

Secondly, the Tribunal dealt with the “basic award”, calculated by way of a formula relating to his age and years in employment: see, Chitty on Contracts (30^th ed.), Vol. II, at para. 39-232. In accordance with this formula, Mr. Galloway would have been entitled to a basic award of £5,220. However, the Tribunal ruled that an 80% reduction was appropriate, in that Mr. Galloway had caused or contributed to his dismissal in the following respects:

“ 5.1 there was evidence suggesting that he had accessed inappropriate websites;

5.2

he had undertaken private business relating to building regulations in September 2006 whilst on sick leave and

5.3

there was a persistent failure by the Claimant to engage in the investigatory process relating to the allegations …[of] misconduct”

The upshot was that the Tribunal fixed the reduced basic award as £1,044.00.

Thirdly, the Tribunal awarded Mr. Galloway an additional amount of £2,500 in respect of “disability discrimination”, arising from the reasonable adjustments which the Trust had failed to make (outlined above). Accordingly, as already noted, the total award was £3,544.00.

I turn to the principal Issues.

The thrust of Mr. Galloway’s complaint here was the Tribunal’s refusal to permit the introduction of Vogler while allowing the Trust to cross-examine him on Websense 1. As Mr. Galloway put it at the oral hearing before us, this placed him at a disadvantage; in her skeleton argument, Ms. Braganza characterised the Tribunal’s decisions as irrational and perverse.

I am unable to accept these criticisms, whether Vogler and Websense 1 are considered separately or together.

As to Vogler, as has been seen, Mr. Galloway sought to introduce it very late in the day. He moreover did so in the teeth of prior rulings addressing disclosure and witness statements. Had Vogler been allowed into evidence, an adjournment would have been inevitable. As it was, the hearing before the Tribunal took a startling 9 days to complete. Time and resources are both finite. An adjournment, leading to further delay and expense, would have bordered on the unconscionable. In the exercise of its discretion and as a matter of case management, the Tribunal was amply entitled to rule as it did. For that matter, I think it was the correct ruling to make. That Vogler contained potentially relevant evidence does not of course assist Mr. Galloway’s argument; had its contents been demonstrably irrelevant it should plainly have been excluded on that ground alone.

I also do not think that the fairness of the Tribunal’s ruling on Vogler is in any way called into question by its treatment of Websense 1. Evenhandedly, the Tribunal had already refused the Trust permission to adduce Websense 1 in evidence. It also, rightly, maintained its position in the face of repeated (unattractive) attempts by the Trust to change its mind.

Conceptually, the Tribunal’s approach does not give rise to difficulty. There are frequently instances where a document, not in evidence, forms the basis of cross-examination. In such circumstances, the contents of the document are not evidence; if the witness denies the questions put to him, the contents of the document do not become evidence; if the witness makes admissions in answering the questions put to him, then the admissions constitute the evidence. There is nothing particularly unusual in this regard. That another tribunal might, in all the circumstances, have taken a different course and precluded questions based on Websense 1, is neither here nor there.

The Tribunal would have erred had it relied on Websense 1 in support of its findings. But, ultimately, I do not think that it did so. Attention has already been drawn to para. 59 of its Judgment, perhaps not happily expressed and which, at first blush, is capable of giving rise to concern in this regard. However, on careful consideration of the language of para. 59 – including its underlining of Mr. Galloway’s denial – I am satisfied that this paragraph does no more than record the questions put and the answers given. It cannot properly be read as suggesting that the Tribunal placed any reliance on Websense 1.

It follows that Mr. Galloway has no good grounds for complaint under Issue (I).

Under this heading, the focus shifts to the Tribunal’s conclusion that Mr. Galloway would have been fairly dismissed by, latest, 27^th January, 2007. On behalf of Mr. Galloway, Ms. Braganza submits that there is no basis upon which the Tribunal was entitled to conclude that the matters which led to the dismissal being unfair would have been resolved, adversely to Mr. Galloway, so as inevitably to lead to his dismissal by the Trust, within that short period or at all.

Rightly, Ms. Braganza’s written submissions concentrated on the Tribunal’s own queries as to Websense 2. The other matters may be disposed of at once; there is nothing in them:

I turn to the real question here, namely, the “curious features” of Websense 2, upon which the Tribunal itself remarked. This is a matter giving rise to anxious pause for thought. Mr. Galloway’s future with the Trust may very well have been in doubt for a number of reasons but the conduct relied on for his dismissal carries with it a stigma – and Websense 2 was central to the basis for his dismissal. With respect, the Tribunal’s reasoning (the key passages have all been recorded above) leaves something to be desired and gives rise to an obvious inquiry: if (but as the majority held) the “curious features” of Websense 2 contributed to the dismissal being unfair, on what proper basis could the Tribunal conclude that these curiosities would be satisfactorily resolved by the 27^th January?

Before this Court, Mr. Choudhury was pressed in this regard. His answer, in essence, was that the Trust would have made inquiries of its IT department. Such inquiries would have provided reassurance, namely, that a reliable proprietary programme had been used in the preparation of Websense 2; if so, that was a reasonable way of proceeding.

For my part, at least at first blush, there is a troubling hint of circularity in Mr. Choudhury’s response so that, had it stood alone, I might well have found difficulty in accepting his submission. But it does not stand alone and, upon careful reflection, I am persuaded that the appeal on this ground is to be dismissed. Had the Trust made the inquiries contemplated by the Tribunal, I am satisfied that the inevitable conclusion was that Mr. Galloway would have been fairly dismissed within the one month period in question. My reasons follow.

First, the relevant issue must be kept in mind. In the present context – unfair dismissal rather than wrongful dismissal – the issue is not whether Mr. Galloway in fact committed the act of misconduct relied upon but whether the Trust had a reasonable basis for believing that to be the case: see, British Home Stores v Burchell [1980] ICR 303 (EAT), where, at p.304, Arnold J (as he then was) said this:

“ The case is one of an increasingly familiar sort in this Tribunal, in which there has been a suspicion or belief of the employee’s misconduct entertained by the employers; it is on that ground that dismissal has taken place; and the tribunal then goes over that to review the situation as it was at the date of dismissal. The central point of appeal is what is the nature and proper extent of that review. We have had cited to us…really all the cases which deal with this particular aspect in the recent history of this tribunal over the past three or four years; and the conclusions to be drawn fro the cases we think are quite plain. What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at that stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further. It is not relevant….that the tribunal would themselves have shared that view in those circumstances. It is not relevant….for the tribunal to examine the quality of the material which the employers had before them, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities. Or whether it was the sort of material which would lead to the same conclusion only upon the basis of being ‘sure’….The test, and the test all the way through, is reasonableness; and certainly…..a conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion.”

(Italics added.)

I note that in his skeleton argument Mr. Choudhury clearly flagged this test (if not the authority) as constituting “trite employment law” and there has been no suggestion from Ms. Braganza that any other test was applicable.

Secondly, as already recorded, the Tribunal rejected Mr. Galloway’s defence that other staff had used his user name and password to access sites, that the Websense 2 programme was unreliable and that the Websense 2 records were the result of a computer virus. Those are conclusions of fact, unchallengeable before this Court and pointing inescapably to the conclusion that Mr. Galloway had accessed the sites in question.

Thirdly, there is the question of the duration of the site visits. For obvious reasons, it would be difficult to found a case of misconduct (even on the Burchell test, supra) on site visits of 0 – 3 seconds duration. However, whatever the explanation for those site visits, Websense 2 shows 5 visits to the relevant sites of 3 minutes’ duration each. Visits to the offending sites of that duration were eminently capable of justifying the stance taken by the Trust.

Accordingly and fourthly, viewed in this context, there is both force in Mr. Choudhury’s submission and no proper basis for this Court to interfere with the Tribunal’s conclusion that Mr. Galloway would have been fairly dismissed by, latest, 27^th January, 2007. This ground of appeal therefore fails.

The issue here is essentially apparent bias, concerning Mr. Bulford, a “wing member” of the Tribunal. This issue was raised by Ms Braganza and maintained by Mr. Galloway in writing and orally. If and to the extent that any of the material relied upon by Mr. Galloway strayed into the territory of actual bias, I can see no proper foundation for any such allegation and say no more of it. Unfortunately, however, this matter too was dealt with by the Tribunal in a manner which left something to be desired, perhaps serving to explain why it has remained part of Mr. Galloway’s case.

The relevant facts as to Mr. Bulford, helpfully clarified by Mr. Choudhury pursuant to the 20^th May directions, are these:

It would appear that something was said at the outset of the hearing before the Tribunal as to Mr. Bulford having a connection with the Trust but it is not apparent that full (and appropriate) details were given. This is especially unfortunate, given that Mr. Galloway was representing himself. It was against that background that no objection was taken to Mr. Bulford remaining on the panel. It is, however, unnecessary to explore what was said in any further detail because of Mr. Choudhury’s realistic concession, as follows:

“ The Respondent does not pursue any argument that there was a waiver in this case. It is clear from the material presented by Judge Burgher that whatever was said to the parties at the outset of the hearing, the information provided did not satisfy the requirement that the parties be made aware of all relevant circumstances and that they be given a fair opportunity to reach an unpressured decision to continue having been informed of their right to apply for recusal.”

Accordingly, the issue which remains is whether on the full factual material relating to Mr. Bulford, set out above, Mr. Galloway is entitled to succeed in his contention that there was here apparent bias.

The test for apparent bias is well-settled and can be taken from the judgment of Elias J (as he then was) in Hamilton v GMB [2007] IRLR 391, at [29]:

“ (1) The concept of apparent bias is different. The rationale for this rule is not that a man must not be a judge in his own cause, but rather the related but distinct principle that justice must be seen to be done. The principle is designed to ensure that the public have confidence in the system of the administration of justice…..

(2)

The basic test to be applied is this: whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased……

(3)

Accordingly, the court must first ascertain all the relevant circumstances which have a bearing on the allegation of bias; and then assess that information as would a fair-minded and informed observer. An appeal court is in as good a position as the original court to assume the vantage point of the fair-minded and informed observer and so must itself make the assessment……”

Mr. Choudhury submitted that it would have taken an unduly suspicious observer to conclude that there was here any real possibility of bias; a fair-minded and informed observer, knowing the facts already outlined, would not conclude that Mr. Bulford’s connection with the NHS gave rise to any such possibility.

I agree - for the reasons which follow:

It follows that the ground of appeal based on apparent bias fails and that the appeal as a whole does so likewise – all the grounds relied upon having been dismissed.

For completeness, I add only this. If (contrary to the above) I had been of the view that there was here apparent bias, the position would not have been saved by the fact that Mr. Bulford was in the minority on the question of the fairness of the dismissal.

I turn to the cross-appeal.

(1) Context: The context of the cross-appeal can be briefly outlined. In Polkey v AE Dayton Services Ltd [1988] ICR 142, the House of Lords held that if a dismissal was found to be unfair for procedural defects then the fact that the employer would have dismissed in any event, even had he complied with all the proper procedures, would not generally render a dismissal fair. As explained by Elias J (as he then was) in Kelly-Madden v Manor Surgery [2007] ICR 203 (EAT), at [35], it could only do so in the very exceptional circumstances where a reasonable employer could dispense with all such procedural safeguards; the relevance of the fact that the employee might have been dismissed in any event went to the question of remedy rather than liability.

The legislature’s response to Polkey (supra) was the enactment of S.98A(2) of the ERA 1996, though, as appears from the observations of Elias J in Kelly-Madden v Manor Surgery (loc cit), the question of how far this sub-section reversed Polkey is not self evident. It may be noted that although S.98A(2) was in force at the time of the Judgment, it has since been repealed with effect from the 6^th April, 2009 by para. 1 of Schedule 1(1) to the Emplyment Act 2008.

S.98A(2) provides as follows:

“ Subject to subsection (1), failure by an employee to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of section 98(4)(a) as by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.”

For completeness, s.98A(1) deals with statutory procedures, which are not relevant to the present dispute.

In the event, in Kelly-Madden v Manor Surgery (supra), Elias J came to the following conclusion as to s.98A(2), at [49]:

“ Whenever a tribunal is minded to find that the dismissal is unfair for procedural reasons alone, it is open to the employer to show that compliance would, on the balance of probabilities, have made no difference. As the authorities now establish very clearly, this means that the tribunal must be satisfied that it can fairly and properly determine what would have happened had there been no procedural failing. Sometimes it is simply not possible for it to form a view of what might have been, in which case the employer will not have proved the case……In other cases the tribunal will not be satisfied that the decision would in all probability have been the same. But where the employer can satisfy the burden placed on him, and the procedural defects do not infringe the statutory dismissal procedures, the dismissal will be fair.”

Building on s.98A(2), together with the facts as found by the Tribunal and already very fully covered above, the Trust’s case is that the Tribunal ought to have held that the dismissal was fair; if so, then of course Mr. Galloway would not be entitled to some or all of the £3,544.00 awarded to him under the remedies Judgment.

(2) The DDA point: I should deal at the outset with a point raised on behalf of Mr. Galloway by Ms. Braganza in an e-mail of the 27^th September, 2010. Though not in her skeleton argument, we have nonetheless considered this argument – very properly without opposition from Mr. Choudhury – and I propose to deal with it on its merits. Ms. Braganza’s submission was this: even if the Trust was right in its argument on s.98A and s.98 of the ERA 1996, the Tribunal also found that the dismissal was discriminatory on the basis of the disability.

“ This means that the unfair dismissal stands even if the Respondent were right as to the procedure of the dismissal and this making no difference…..By reason of the finding on discrimination, it will remain an Unfair dismissal.”

At first blush, Ms Braganza’s submission was attractive; but, upon reflection, I am satisfied that Mr. Choudhury’s short retort is, at least in part, well-founded. In a nutshell, the dismissal was not a discriminatory dismissal; nor did the Tribunal so hold. The Tribunal’s finding with regard to the DDA was that the Trust had failed to make reasonable adjustments to allow for Mr. Galloway’s disability. That is a very different finding from a finding that the dismissal itself amounted to an act of discrimination.

As it seems to me, the consequences are these:

(3) The timing point: Putting the DDA point to one side, in accordance with the conclusion already reached, Mr. Galloway would have been fairly dismissed by, latest, 27^th January, 2007 – thus a month or so later than he was in fact dismissed. Does the fact that the fair dismissal would have occurred in any event but at a time later than he was actually dismissed preclude the Trust relying on s.98A(2)?

The wording of the section says nothing about timing.

However, Mr. Choudhury very fairly drew our attention to the (obiter) observations of Elias J (as he then was) in Alexander v Brigden Enterprises Ltd [2006] ICR 1277 (EAT), at [64], suggesting that the question of timing was material:

“ It is arguably implicit in section 98A(2) that in order for the dismissal to be fair, it is necessary for the employer to show not merely that the employee would have been fairly dismissed if appropriate procedures had been complied with, but that he would have been dismissed at the same time as he was. Otherwise an employee who is plainly prejudiced by the failure to follow fair procedures – because he would have remained longer in employment had they been followed – would be unable to recover compensation at all. The employer would benefit from his own wrongdoing. ”

Other than these observations, Mr. Choudhury was not aware of any authority dealing with this question.

As it seems to me, it is unnecessary in this case to express any, still less, a concluded view as to whether an implicit qualification should be read into s.98A(2) where actual detriment has been suffered by the employee flowing from the employer’s failure to comply with the appropriate procedures. Moreover, it would seem inappropriate in this case to venture a view on a point which might have wider ramifications (albeit in respect of a provision which has since been repealed), given the fact that Mr. Galloway has not been legally represented.

On the facts of this case, it suffices to say that Mr. Galloway’s basic award wholly depends on the conclusion of the Tribunal that he was unfairly dismissed. The extra month in employment made no financial difference. There is no question of the Trust benefiting from its own procedural failings. Either the Trust can rely on s.98A(2) or it cannot. But if it is otherwise entitled to rely on s.98A(2), then the fact that a fair dismissal would have occurred a month later (rather than at the same time as the actual dismissal) cannot preclude it from doing so.

(4) Overall conclusion on the cross-appeal: In my judgment, for the reasons already canvassed and on the facts found by the Tribunal, the Trust is entitled to rely on s.98A(2) – because Mr. Galloway would have been fairly dismissed by, latest, 27^th January, 2007 - so that the Tribunal ought to have held that Mr. Galloway’s dismissal was not unfair within the meaning of s.98 of the ERA 1996. It necessarily follows that the cross-appeal must be allowed in respect of the £1,044.00 basic award. However, for the reasons already given, the cross-appeal must fail in respect of the £2,500.00 awarded to Mr. Galloway under the DDA for hurt feelings. The total award due to Mr. Galloway is accordingly reduced from £3,544.00 to £2,500.00; to such extent, the cross-appeal succeeds.

Subsequent to the conclusion of the hearing, Mr. Galloway sent some further materials to the Court. In my view, it is plain that those materials take the matter no further and do not in any way cause me to re-think any of the conclusions to which I have come. In the circumstances, it is unnecessary to say anything as to the brief observations received in response to the Court’s invitation from Mr. Choudhury in respect of these further materials.

I agree.

I also agree.