EAT PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
Procedural irregularity/fair hearing
Allowing the appeal on this basis. On the Second Respondent’s application for wasted costs against the Appellant, the Employment Tribunal (‘ET’) hearing had ended with a lack of certainty as to how matters were to proceed in terms of evidence as to means (which potentially went both to the question whether any award should be made and as to the amount of such an award if made). It having been accepted that the Appellant was entitled to be afforded the further opportunity to adduce such evidence, the Appellant had not unreasonably understood that the ET would give further directions for the submission of that evidence in due course, if it considered its wasted costs jurisdiction had been engaged. Subsequently, no written record as to how things had been left was sent out to the parties. The different records available to the Employment Appeal Tribunal (‘EAT’) served only to confirm the potential ambiguity as to how things had been left. Thereafter, one of the ET lay members had died and the further directions that were required seemed to have been forgotten as a result. This had meant that the Appellant had been denied the opportunity to submit further evidence on a matter that was relevant to the ET’s ultimate decision to award wasted costs against it. The award was thus rendered unsafe and the matter would be remitted for consideration afresh.
Apparent Bias
There had been a number of errors in the ET proceedings (including the irregularity described above). The Appellant argued that these had to be seen in the light of the Employment Judge’s gratuitous disclosure of irrelevant information in the appeal proceedings, apparently designed to prejudice the Appellant in the EAT’s eyes. This was a slipping of the mask and, although occurring some time after any relevant decision, this would cause the informed, fair-minded observer to conclude there was a real risk of bias undermining the ET decision in issue.
Refusing the appeal on this basis. While a number of unfortunate difficulties had arisen during the course of the ET proceedings, none gave rise to anything that would cause the informed, fair-minded observer to conclude there was a real possibility of bias. The Employment Judge’s response to the EAT did not change that position. It was plainly some time after the relevant decisions and provided in a context which allowed a different explanation. No issue of relevant bias arose relevant to the decision in issue in the appeal.
Disposal
The Employment Judge’s response in the appeal proceedings was, however, relevant to the question of remission. It meant that the Appellant had lost confidence in obtaining a fair hearing before this ET. The matter should be remitted to an entirely fresh ET for re-hearing.
Eady QC HHJ
[2015] UKEAT 0382 – 14 – 2003
Bailii
England and Wales
Employment
Updated: 30 December 2021; Ref: scu.547129
