EAT Practice and Procedure: Bias, Misconduct and Procedural Irregularity – The Claimant had pursued claims of race discrimination, whistleblowing, and disability discrimination against the First and Third Respondents and of disability discrimination, victimisation and unlawful detriment against the Second Respondent (the trade union of which she was a member). At a Preliminary Hearing the Regional Employment Judge (‘REJ’) heard applications relating to the claims against the Second Respondent (largely relating to whether those claims had been brought in time or whether it would be just and equitable to extend time). Having heard from the Claimant and the Second Respondent, the REJ stated she had reached a decision on these matters but would not announce it at that stage. The REJ turned to the matters relating to the claims against the First and Third Respondents. Having not been able to complete submissions that day, the Claimant and those acting for the First and Third Respondents were permitted to make further written representations, limited to matters raised at the hearing. Upon receiving submissions from the Claimant, the REJ became aware that allegations were being made against a TU representative who was a lay member in that region. She took the view that ‘beyond doubt’ she would not have started to hear the case if she had known this before and set in motion the process of transferring the case to another region. Nonetheless, she proceeded to reach decisions on the matters relating to the claims against the First and Third Respondents, and sent out her Reserved Decisions in this respect (striking out the race discrimination, whistleblowing and unfair dismissal claims and giving directions, including for the joint instruction of a medical expert, in the disability discrimination claim), and to communicate her earlier decision in respect of the claims against the Second Respondent (finding the claims were brought out of time and it was not just and equitable to extend time).
The Claimant appealed on the grounds of apparent bias and on the basis that the ET had improperly failed to consider the Claimant’s case at its highest when deciding to strike it out and/or had applied the wrong test and had also wrongly required the Claimant to participate in the instruction of a joint expert.
Held: Allowing the Claimant’s appeal against the decisions reached in respect of the claims against the First and Third Respondents but dismissing the appeal against the decisions relating to the Second Respondent.
Eady QC HHJ
[2016] UKEAT 0182 – 15 – 1104
Bailii
England and Wales
Employment
Updated: 17 January 2022; Ref: scu.565120