EAT Practice and Procedure : Case Management – Bias, misconduct and procedural irregularity
Review
The Claimant brought proceedings which were vigorously contested. She sought to establish that she had suffered an unfair (constructive) dismissal. The hearing was fixed over two days. On the first day the Claimant unsuccessfully sought an adjournment. The Employment Tribunal read the witness statements and pleadings before the hearing commenced.
The Employment Judge gave a Case Management ruling on the order in which witnesses should be called to accommodate a witness travelling from abroad. The Claimant strongly disagreed with the decision of the Employment Judge and left the hearing making it clear she would not return. The Employment Judge advised her that the Employment Tribunal had noted that in order to establish her case the Claimant had to show that her evidence would be accepted rather than that of the Respondent’s witnesses. She was advised that if she declined to give evidence she ran the risk of her case being dismissed in her absence. The Claimant refused to stay. The Employment Tribunal went on to consider the case in her absence and dismissed her claims. The Claimant then sought a review of the judgment and requested that the original Employment Judge should not undertake the preliminary consideration of the application of review pursuant to rule 35(3) of the Employment Tribunal Rules of Procedure on the grounds that the Employment Judge was biased. An allegation of bias was wholly without merit and the only complaint against the Employment Judge was that she had made a ruling not to the Claimant’s liking. The Employment Judge did not consider that the mechanism of review was appropriate for allegations of bias, she declined to recuse herself and refused an application for a review on the basis that no grounds for her to order the review had been made out; it was not in the interests of justice for the decision to be reviewed.
On appeal the Claimant maintained that by reason of the allegation of bias that it was not ‘practicable’ for the original Employment Judge under the application to have the decision reviewed. The Employment Appeal Tribunal held that, ‘practicable’ meant ‘feasible’ rather than inconvenient and that it was wholly appropriate and sensible for the original Employment Judge to carry out the preliminary consideration of the application as provided for by the rule.
Judge Serota QC
[2013] UKEAT 0124 – 12 – 0306
Bailii
England and Wales
Employment
Updated: 04 December 2021; Ref: scu.526124