BLP UK Ltd. v Marsh

Factual and Procedural Background

The appeal arises from a decision of an Employment Tribunal sitting in Sheffield which upheld an unfair dismissal complaint brought by the Respondent employee against the Appellant employer, Company A. The employee had been employed by Company B and transferred to Company A, where his role and responsibilities changed. Difficulties in performance led to disciplinary hearings and ultimately to dismissal without formal warnings or a capability procedure. The employee appealed internally but the appeal was a procedural review and was rejected. The employee then brought a claim of unfair dismissal before the Employment Tribunal, which found in his favour and awarded compensation.

The employer appealed to the Employment Appeal Tribunal ("EAT") on four grounds, including an allegation of bias by the Tribunal Chairman. The EAT dismissed the appeal but granted permission for three of the four grounds to be advanced further, focusing on the alleged appearance of bias by the Tribunal Chairman. The employer then appealed to this court on those grounds.

Legal Issues Presented

1. Whether the Employment Appeal Tribunal applied the correct legal test in determining if there was an appearance of bias by the Tribunal Chairman.
2. Whether the EAT erred in speculating on the reasons for the Tribunal Chairman’s differing conduct towards the parties.
3. Whether the EAT improperly relied on findings of fact from the Employment Tribunal in dismissing the allegation of bias.

Arguments of the Parties

Appellant's Arguments

• The EAT applied too rigorous a test and failed properly to apply the objective test for bias as set out in the leading authorities.
• The EAT wrongly speculated on the reasons for the Chairman’s conduct rather than focusing solely on the impression created on the fair-minded observer.
• The EAT erred in relying on the Employment Tribunal’s factual findings, which were challenged by the employer, in dismissing the bias allegation.
• Affidavits from employer witnesses described hostile and aggressive behaviour by the Tribunal Chairman, including body language and tone suggesting bias.
• The internal appeal process was flawed, and the Chairman’s conduct during the hearing gave rise to a real possibility of bias.

Respondent's Arguments

• The Respondent did not attend or participate in the appeal hearing before this court.
• In a letter, the Respondent stated he did not perceive any preferential treatment or bias from the Tribunal Chairman or lay members.
• The Respondent described the hearing as distressing and stressful but denied the employer’s claim of bias.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the allegations of bias against the legal framework established by the cited authorities, emphasizing the objective test of whether a fair-minded and informed observer would perceive a real possibility of bias. The court found that the EAT had correctly identified and applied this test.

The court acknowledged the employer’s witnesses’ affidavits describing hostile and aggressive conduct by the Tribunal Chairman, including body language and tone. However, the court noted that other Tribunal members did not corroborate these perceptions and that the employer’s own counsel did not endorse all the complaints about body language.

The court agreed with the EAT’s view that Tribunal members are entitled to form strong views and react to evidence, and that such reactions do not necessarily amount to bias. The court also accepted the EAT’s reasoning that the context of the case—an unfair dismissal claim with procedural defects on the employer’s part—justified a less favourable view of the employer’s case by the Tribunal.

Regarding the employer’s argument that the EAT improperly speculated on the reasons for the Chairman’s conduct, the court held that the EAT was entitled to consider the context known to a fair-minded observer, including prior rulings and procedural history, to understand the Chairman’s behaviour.

The court rejected the contention that the EAT erred in relying on the Tribunal’s factual findings, noting that the EAT’s reliance on those findings was limited and that no error of law was demonstrated.

Overall, the court found no basis to interfere with the EAT’s conclusion that the allegation of bias was not made out.

Holding and Implications

DISMISSED

The court dismissed the employer’s appeal against the Employment Appeal Tribunal’s decision. The direct effect is that the original Employment Tribunal’s finding of unfair dismissal and the dismissal of the bias allegation stand. No new legal precedent was established by this decision. The case was remitted to address the quantification of compensation as directed by the EAT, but the substantive ruling on bias and unfair dismissal remains undisturbed.