Peninsula Business Services Ltd v Rees and Others: EAT 23 Jul 2009

peninsula_reesEAT2009

EAT PRACTICE AND PROCEDURE: Bias, misconduct and procedural irregularity
The Appellants are a large organisation offering employment advice and representation before Employment Tribunals and the Employment Appeal Tribunal. The same Employment Judge heard the cases of Mr Rees and others and Miss Malik against Peninsula. Shortly before the resumed hearing of the case of Mr Rees and others, the five partner firm of solicitors in which the then part-time Employment Judge was an employment law specialist, advertised their employment law expertise and denigrated non-solicitor employment law consultants. Although not named, the Appellants are well-known and perhaps the largest such consultants. A fair-minded and informed observer could not have excluded the possibility of bias against Peninsula by the Employment Judge. (Porter v McGill [2002] 2 AC 357 and Locabail v Bayfield Properties Limited [2000] IRLR 96 applied). The judgment in the case of Mr Rees and others is set aside on grounds of apparent bias. The case is remitted for rehearing before a different Employment Tribunal.
In the case of Miss Malik, after recusal of a lay member, the Appellant’s representative consented to the case continuing with the Employment Judge and the remaining lay member. Although consent was reluctantly given it constituted proper waiver of the apparent bias (Locabail and Jones v Das Legal Expenses Insurance Co Ltd [2004] IRLR 218). The presence of the Employment Judge on the Tribunal in that case did not give rise to the appearance of bias on the grounds it did in Mr Rees’ case. The distance in time between the advertisement and the hearing of Miss Malik’s case and the fact that the by now full-time Employment Judge was no longer a partner in the solicitors’ firm removed any real risk of appearance of bias by the presence of the Employment Judge on the Tribunal in that case (Locabail, para 89). The bias ground of appeal in the case of Miss Malik is dismissed. The appeal will be relisted for determination of other grounds of appeal in that case.

[2009] UKEAT 0333 – 08 – 2307
Bailii

Employment, Natural Justice

Updated: 31 October 2021; Ref: scu.361511