Southwark v Jiminez

Factual and Procedural Background

The appeal concerns an allegation of apparent bias by an Employment Tribunal in proceedings involving an employer, Company A, and its employee, the Plaintiff. The Tribunal found that Company A had unlawfully discriminated against the Plaintiff under the Disability Discrimination Act 1995 and that the Plaintiff was unfairly dismissed by constructive dismissal. Company A appealed to the Employment Appeal Tribunal (EAT), which held that apparent bias had been shown due to comments made by the Tribunal Chairman before hearing final submissions. The EAT allowed the appeal and ordered a rehearing before a differently constituted Tribunal. The Plaintiff sought permission to appeal this decision to the higher court, which was initially refused but later granted on most grounds.

The Plaintiff had been employed by Company A in senior roles but suffered from serious health issues, including myalgic encephalomyelitis and depression, which led to extended absence and eventual resignation, alleging constructive dismissal. The Tribunal hearing spanned multiple sessions over several months, with evidence largely completed by March 1999 but submissions and some witness evidence pending. On 12 March 1999, the Tribunal Chairman expressed strong preliminary views critical of Company A’s conduct before final submissions were made, which gave rise to the bias allegation.

Company A initially appealed on various grounds but did not specifically raise the bias complaint until later amendments to the grounds of appeal. The EAT considered the bias issue and found a real possibility of bias based on the Chairman’s comments. The higher court then directed that the Tribunal Chairman be given an opportunity to comment on the bias allegations, following which the court reconsidered the matter.

Legal Issues Presented

1. Whether the Employment Tribunal displayed apparent bias against Company A by expressing strong preliminary views before hearing final submissions and all evidence.
2. Whether such expressions of preliminary views amounted to a closed mind or a concluded view hostile to Company A, thereby vitiating the Tribunal's decision.
3. Whether the Employment Appeal Tribunal erred in law by finding apparent bias without first obtaining the Tribunal Chairman’s comments on the allegations as required by procedural rules.

Arguments of the Parties

Appellant's Arguments (Company A)

• The Tribunal Chairman’s comments on 12 March 1999 demonstrated a concluded, hostile view against Company A before hearing all evidence and submissions, amounting to apparent bias.
• The use of strong language such as "appalling" indicated that the Tribunal had closed its mind to Company A’s case.
• The Tribunal’s conduct was oppressive and unreasonable, including attempts to pressure Company A to settle the claim prematurely.
• Company A’s legal representatives did not consent to the Tribunal expressing such views and expected only a list of matters for submissions, not an expression of decided views.
• The Employment Appeal Tribunal erred in not following procedural rules requiring the Tribunal Chairman’s comments before deciding on bias.

Respondent's Arguments (Plaintiff)

• The expression of preliminary views by the Tribunal was appropriate and helpful, not indicative of bias.
• The parties’ representatives had agreed that preliminary views would be given to assist in focusing submissions.
• Strong language does not necessarily indicate bias if the Tribunal remains open to persuasion and has not made a final decision.
• The Tribunal’s encouragement of settlement was proper and does not amount to bias.
• The Employment Appeal Tribunal correctly applied the law on apparent bias.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first acknowledged the well-established legal principle that both actual and apparent bias can invalidate judicial decisions, with the test being objective and based on the perception of a fair-minded and informed observer. It recognized that premature expressions of concluded views or a closed mind by a tribunal may amount to apparent bias.

However, the court distinguished this case from those where hostile conclusions were expressed before the opposing party’s case was opened. Here, the majority of evidence had been heard by the time the Tribunal expressed its preliminary views. The court found that the Tribunal’s comments were explicitly labelled as "preliminary" and were intended to highlight concerns to assist the parties in focusing their final submissions and possibly adducing further evidence.

The court noted that the Tribunal Chairman’s comments were made after agreement by the parties’ counsel and that the Tribunal remained open to persuasion, as evidenced by the detailed points it invited Company A to address. The court rejected the argument that the strong language used necessarily indicated a closed mind or bias, emphasizing that a strong provisional view can be expressed without finality.

The court also found that the Employment Appeal Tribunal erred in not obtaining the Tribunal Chairman’s comments on the bias allegations before deciding the appeal, as required by procedural rules. Having now considered those comments, the court concluded that the Tribunal’s conduct did not amount to apparent bias.

In sum, the court held that the Tribunal’s expression of preliminary views was a legitimate part of the adversarial process and did not demonstrate a closed mind or bias against Company A.

Holding and Implications

The court ALLOWED THE APPEAL, set aside the order of the Employment Appeal Tribunal, and restored the original decision of the Employment Tribunal.

The direct effect of this decision is that the original Tribunal’s findings of unlawful discrimination and unfair dismissal against Company A stand. No new precedent was established beyond clarifying the application of apparent bias principles in the context of preliminary views expressed late in Tribunal proceedings. The ruling underscores the importance of procedural fairness, including the requirement to seek Tribunal comments on bias allegations before appeal determination.