Successful defence of a claim that an employment tribunal was biased against the (losing) claimant

The original hearing

Our Client, a listed software company, dismissed its worldwide head of HR for a number of reasons. It did so when she had been employed for about 9 months. This meant, of course, that she couldn’t claim ordinary unfair dismissal. This is because you need 1 year’s service [see update below] to bring such a claim. However, there are a number of exceptions to this 1-year rule. Being dismissed because you ‘blew the whistle’ on wrongdoing is one of these exceptions. It is also an exception to the rule that unfair dismissal compensation is capped. These two exceptions mean that dismissed executives increasingly consider whether they can bring their claim within the whistleblowing exception. Tribunals are alive to this and, therefore, look carefully at all such claims.

In the case we did, the allegation was that the Company dismissed the employee because she had ‘blown the whistle’ on certain wrongdoings. Not only had the Company properly and thoroughly investigated that whistleblowing allegation months before but it had completely ruled out any wrongdoing. Furthermore, at the time of the dismissal, the Company had good grounds to dismiss the employee. The issue for the tribunal was, therefore, what was in the mind of the dismissing manager - in this case, the Chairman. The tribunal found that the Chairman’s decision to dismiss was unrelated to the alleged whistleblowing so dismissed the Claimant’s case.

This should have been the end of this matter but the Claimant appealed to the Employment Appeal Tribunal.

The Employment Appeal Tribunal case

The employment appeal tribunal claim was on the basis that the original hearing was biased. The claim centred on one of the wing members who it was claimed had tutted, scoffed, rolled her eyes, and generally been very and obviously dismissive of the Claimant during her evidence. Another claim was that this particular wing member was completely and obviously on the side of the Company so much so that during the Chairman’s evidence she was nodding and agreeing wholeheartedly with the Chairman. Another allegation was that at one point the wing member described an aspect of the Claimant’s case as ‘ridiculous’. By and large, these allegations were based on truth but we felt that the Claimant’s EAT appeal exaggerated the claims enormously.

As such, we said as much in our affidavit to the EAT. Mr Justice Burton, who is a high court judge, came back to the EAT to hear this case.

The dismissed employee’s case was that the wing member was biased. The wing member’s behaviour had already been the subject of a complaint during the original hearing. That complaint resulted in the wing member apologising if in any way she had given the impression of having made up her mind.

Bias can in an appropriate case be a reason to set aside an original decision. One of the leading cases on this is Porter v Magill which asked: “would a fair-minded informed observer, having considered the facts, conclude that there was a real possibility that the tribunal was biased such as, for example, having a closed mind too early in a case”. The EAT accepted that there had been discourteous behaviour but that it was not evidence of a closed mind.

In preparing for the EAT we had found a case from the supreme court of New Zealand which went into judicial bad behaviour. It said that while such behaviour happens there is normally no reason for it and that the most likely explanation is that the behaviour is a reaction to a bad case being presented. This case was used by Mr Justice Burton to explain what he thought had gone on. This was that there was no ‘closed mind’ but that as the case in the tribunal progressed the wing member concerned reacted badly and rudely to the evidence of the Claimant and the way her case was put. This said Mr Justice Burton was wrong but it wasn’t bias. Thus, he dismissed the case.

In this case, the EAT supported a list of rules for judicial behaviour including that:

(i) members should avoid overt signs of friendliness or hostility towards a party/representative;

(ii) although necessary to be firm with a witness/representative, members should at all times act respectfully and courteously towards people appearing before them;

(iii) members should keep to a minimum, demonstrative reactions to evidence or submissions, save in the form of direct questions;

(iv) members should avoid “asides” [stage whispers], comments and remarks, unless formulated as direct questions to the EJ, witness or representative.

2020 update - you now need 2 year’s service to bring a claim for ordinary unfair dismissal