Factual and Procedural Background
The Plaintiff brought a claim alleging unfair dismissal by the Defendant from her position as an information worker. The initial Employment Tribunal, chaired by Judge MacKenzie, heard the case and issued a decision with extended reasons on 10 June 2005. The Plaintiff sought compensation for unfair dismissal, while the Defendant initially defended the dismissal on grounds of gross industrial misconduct, including alleged criminal conduct related to discrepancies in funds managed by the Plaintiff. The Defendant considered reporting the matter to the police but later conceded the dismissal was unfair during the hearing. Compensation was awarded in the amount of £4,933.84.
The Tribunal had to decide whether to grant the Defendant's application for an adjournment and, if not, whether the Plaintiff was entitled to compensation and the appropriate amount. The Defendant appealed the Tribunal's decision, primarily on the basis that the Tribunal chairman had prejudged the case, influencing the Defendant to concede unfair dismissal.
Legal Issues Presented
- Whether the Tribunal chairman's comments at the start of the hearing gave rise to an appearance of bias and prejudgment.
- Whether the Defendant should be permitted to withdraw the concession of unfair dismissal made during the hearing.
- Whether the Tribunal erred in refusing the Defendant's application for an adjournment.
- Whether the Tribunal properly considered the Plaintiff's mitigation of loss.
- Whether the Tribunal erred in awarding future loss of earnings without sufficient evidential basis.
Arguments of the Parties
Defendant's Arguments
- The Tribunal chairman made a prejudicial comment at the start of the hearing indicating the Defendant would have "an uphill struggle" defending the dismissal, which the Defendant interpreted as prejudgment.
- This alleged prejudgment caused the Defendant's representative to concede unfair dismissal prematurely and unfairly.
- The Defendant sought to withdraw this concession on appeal.
- The Defendant argued that the adjournment requested should have been granted to allow further investigation and that the Tribunal failed to properly consider the Plaintiff's failure to mitigate losses.
- It was contended that the Tribunal's award of future loss of earnings was unsupported by evidence.
Plaintiff's Arguments
- The Plaintiff submitted that the issue of prejudgment was moot following the concession of unfair dismissal.
- There was no justification for further adjournment as the Defendant had ample time to investigate.
- The Tribunal's compensation assessment was reasonable and not perverse.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Ellis v Ministry of Defence [1985] ICR 257 |
Appearance of bias and prejudgment by a tribunal or judge undermines the fairness of proceedings. |
Supported the proposition that a tribunal giving the impression of having a closed mind on a matter before hearing evidence constitutes bias and justifies appellate intervention. |
| Porter v Magill [2002] 2 AC 357 |
Objective test for apparent bias: whether a fair-minded and informed observer would conclude there was a real possibility of bias. |
Applied to assess whether the chairman's comments created an appearance of bias in the Tribunal proceedings. |
| Jiminez v London Borough of Southwark [2003] IRLR 477 |
Clarification of the objective test for bias in administrative and tribunal proceedings. |
Reinforced the standard for determining whether the Tribunal's conduct gave rise to a real possibility of bias. |
Court's Reasoning and Analysis
The Court began by emphasizing the fundamental principle that justice must not only be done but be seen to be done, requiring tribunals to avoid any appearance of bias. The objective test for bias was applied, considering whether a fair-minded observer would perceive a real possibility of bias.
The Court examined the chairman's alleged comment that the Defendant would have "an uphill struggle" to maintain its defence. Although the chairman denied using that exact phrase, he accepted he might have made a comment to the effect that the Defendant's case appeared weak based on the evidence submitted before hearing any oral evidence.
The Court found that such a comment, made before any evidence was led or submissions made, indicated a closed mind regarding the Defendant’s defence. This created an appearance of prejudgment and bias, potentially pressuring the Defendant’s representative to concede unfair dismissal prematurely.
The Court acknowledged that while tribunals can properly explore apparent difficulties in a case to encourage settlement or narrow issues, such commentary must be provisional and clearly indicate an open mind. The chairman’s comment lacked this clarity, increasing the risk of perceived bias.
Given the impact of this apparent bias—namely, the concession of unfair dismissal by the Defendant—the Court concluded that intervention was necessary and allowed the appeal. The Court did not find grounds to interfere with the Tribunal’s decisions on adjournment or mitigation of loss but noted a possible minor error in awarding future loss of earnings without evidence, which was ultimately immaterial.
Holding and Implications
The Court ALLOWED the appeal, permitting the Defendant to withdraw its concession of unfair dismissal.
The case was remitted to a freshly constituted Employment Tribunal for a re-hearing.
The direct effect is that the original Tribunal’s decision on unfair dismissal and compensation is set aside pending the new hearing. No new legal precedent was established beyond reaffirming established principles concerning apparent bias and tribunal conduct.