Jersey Employment and Discrimination Tribunal
Employment (Jersey) Law 2003
NOTIFICATION OF THE TRIBUNAL’S
20 Jun 2017
Preston, Deputy Chairman, Sitting alone
For the Applicant:
Mr Nick Le Cornu
For the Respondent:
Mr Christopher Sprent
THE TRIBUNAL’S JUDGMENT
The Tribunal was convened for a Final
Hearing to take place yesterday, 20 June 2017, in order to determine the
Applicant’s claims for unpaid holiday pay and pay that was due to him in
respect of certain Bank Holidays (the “Holiday Claims”). The Applicant was
represented by Mr Nick Le Cornu and the Respondent by
a Director and beneficial shareholder, Mr Christopher Sprent.
The Applicant had been an employee of
the Respondent. On 2 May 2016, he had resigned from his position. By a JET1
dated 17 November 2016 he claimed to have been constructively unfairly
dismissed. However, that claim was rejected as having been brought out of time
and no issue now arises in that regard. The Holiday Claims survived. In
addition, the Applicant remains one of the beneficial owners of shares in the
Respondent. The parties are essentially in partnership in the underlying
business, which is a restaurant in St Helier. There are matters in dispute
between the parties that relate to what might be termed “partnership issues”
that do not concern the Tribunal.
The essence of the Holiday Claims is
that the Applicant says that he is entitled to unpaid holiday pay extending
over a number of years. This was a claim that, amongst other claims, had been
made unsuccessfully in an earlier case brought against the Respondent by a Mr
Jamir Raj Uddin (Case No: 2609 123/14). I sat as the Deputy Chair in that case.
Mr Uddin is also a beneficial owner of shares in the Respondent.
The Respondent had defended Mr Uddin’s
claim for holiday pay on the basis that Mr Sprent and
the other beneficial shareholder, Mr Gallagher, had made significant financial
contributions to the business. There had been an agreement to the effect that
Mr Uddin and the Applicant would make a like financial contribution to the business
by foregoing holiday pay and such sums as would otherwise be due to them would
be credited to a loan account. Over time, this would off-set the financial
contributions made to the business by Mr Sprent and
At the Tribunal hearing involving Mr
Uddin, the Applicant had given sworn evidence in support of the Respondent’s
position. It was now his case that he had lied in that earlier case. It was his
position that he had only done this because Mr Sprent
had told him to lie in those proceedings. The real position was that there had
never been a loan account and that he (and by extension, it would seem Mr
Uddin) was entitled to his holiday pay. For the avoidance of any doubt, Mr Sprent maintained the position that there had been an
agreement in respect to the loan account and he had not told the Applicant to
lie in the earlier case. In fact, the Applicant had told the truth then and was
By Notice dated 19 May 2017, the parties
were advised that I would be sitting as Deputy Chairman together with Mr Mark Thérin and Mr Michael Baudains as
Panel Members at yesterday’s Final Hearing.
By email dated 19 June 2017, Mr Le Cornu advised the Tribunal that he had not seen the Notice
and so had not appreciated that I was to sit in this case. If he had seen the
Notice, he would have made this application sooner.
It was Mr Le Cornu’s
position that the present case was identical to Mr Uddin’s and that as I had
sat in that case I should not sit in this case. As a consequence, Mr Le Cornu indicated that he wanted to apply for me to be
recused. If he was not successful, he stated that he would be seeking a stay of
this matter pending an appeal to the Royal Court.
The Tribunal advised Mr Le Cornu that I would sit alone to determine any application
he wished to make at the commencement of the Final Hearing.
Mr Le Cornu applied for an order that I recuse myself
on the basis that this case was not only similar but identical to the case
involving Mr Uddin. As such, although Mr Le Cornu was
at pains to say that he was not suggesting any actual bias on my part, I was
bound to be “to a degree, prejudiced” by having heard the evidence in the other
case. What was needed was a Chair who could listen impartially to the evidence
and to the legal submissions that would be made. If I were to sit, there would
be an appearance of bias and that should be avoided. There were other Chairs
who could sit in my place and the Applicant was not concerned with the
inevitable delay that would happen if the application was successful.
11. For the
Respondent, Mr Sprent stated that he had no issue
with whichever Chair was appointed to sit. However, he was concerned that if I
refused the application and then the Tribunal was to find in favour of the
Respondent, Mr Le Cornu had confirmed that there
would be an appeal. Mr Sprent was keen to avoid this
and so, if pushed, would prefer another Chair to sit and so take away the
potential for the Applicant to further prolong this litigation. Mr Sprent accepted that there might be an appeal on other
grounds in any event.
accepting that my withdrawal would lead to a delay at least in the short term,
Mr Sprent confirmed that the time afforded to the
parties might enable them to discuss the partnership issues referred to above
and that this might in itself be mutually beneficial.
13. The law
in this area is settled and guidance can be found in the decision of Vaughan JA
sitting as a Single Judge of Appeal in In
the Matter of the Esteem Settlement and the No.52 Trust  JLR 169. The
judge under scrutiny, as part of his duties as a judge, should sit to determine
the issue of his own récusation as he was in the best
position to determine whether the objection to him sitting were valid or not.
14. The test
to be applied in respect to such applications was whether all the material
circumstances would lead a fair-minded and informed observer to conclude that
there was a real possibility or a real danger that the judge was biased. This
was a wholly objective test and the subjective opinion of the party alleging
bias would not be taken into account.
15. I have
carefully considered the submissions made by Mr Le Cornu
but I do not consider that a fair-minded and informed observer would conclude
that there was any real possibility or danger that I would be biased, indeed I
consider that there are strong arguments in favour of my sitting precisely
because I was involved in the earlier case of Mr Uddin. I do not see that there
is any force in the points made by Mr Le Cornu and I
dismiss his application.
reached that decision, I am concerned at the practical effects that might arise
and the impact of any appeal that might follow, with the inevitable delay and
expense that will be caused. In saying this I am not suggesting that the threat
of an appeal would of itself cause me to withdraw. In fact, I am of the view
that any such appeal would be doomed to fail. If it were not for the position
adopted by Mr Sprent, I would proceed to deal with
this case, indeed I consider that I would have a duty to do so. The decision I
have reached below should not be considered as any form of encouragement for
17. It is
incumbent upon me to bear in mind the overriding objective as set out in
Article 2 of the Employment and Discrimination Tribunal (Procedure) Order 2016.
I must keep in mind the need to seek flexibility in proceedings and where
possible to avoid delay and expense. I am also aware of the benefits that might
arise to both parties from these proceedings being delayed for a period of time
as identified by Mr Sprent at paragraph 12 above.
for reasons of practicality, I have decided that I will withdraw from this case
and will ask the Registrar to fix another date for a Final Hearing before a
different Chair. I also take this opportunity to direct that before any such
Final Hearing the parties will liaise in order to ensure that a Joint Bundle is
produced, avoiding the duplication of documents wherever possible.
Signed: Advocate Mike Preston, Deputy Chairman Dated: 21 June 2017
and Reasons sent to the parties on
21 June 2017