BLP UK Limited v Marsh

Permission to appeal should be granted where the proposed grounds are arguable and have more than a fanciful prospect of success. In an apparent-bias challenge, it is arguable that the tribunal applied the wrong objective test, improperly considered the decision-maker’s reasons, or relied on disputed facts. A request to hear oral evidence is a case-management matter within the appellate tribunal’s discretion, and a refusal to hear such evidence will not ordinarily justify permission where the tribunal’s reasons are generally sound.

An Employment Tribunal found that BLP UK Limited had unfairly dismissed Mr Marsh. The Employment Appeal Tribunal dismissed the company’s appeal so far as it alleged apparent bias by the Employment Tribunal chair. The company sought permission to appeal, alleging that the EAT had applied too stringent a test, had wrongly considered the chair’s reasons, and had relied on disputed facts. It also challenged the refusal to permit cross-examination of a witness. The central issue was whether the proposed grounds had a real prospect of success.

1. Permission granted in part. The application was allowed on grounds 1, 2 and 3, and a stay of execution was granted. Those grounds were arguable with some real prospect of success.
2. The first proposed ground raised an arguable question whether the EAT, despite referring to the relevant authorities, had applied the wrong test by looking for actual bias instead of assessing apparent bias from the perspective of an objective and well-informed observer.
3. The second ground was also arguable. The EAT might have erred by treating the reasons for the Employment Tribunal chair’s conduct as relevant, particularly where the apparent conduct itself was the subject of challenge. The reference to paragraph 86 of Re Medicaments No 2 indicated that an explanation given by the judge could be a material circumstance, but the issue remained properly arguable on the proposed appeal.
4. The third ground concerned the EAT’s reliance on disputed factual matters. That too had a more than fanciful prospect of success.
5. Permission was refused on ground 4. Whether to permit cross-examination of Mrs Walker was a case-management decision well within the EAT’s discretion. Although the reference to Ladd v Marshall might not have been entirely apposite, the reasons given by the EAT were generally sound and the decision did not appear inconsistent with paragraph 39(v) of Facey v Midas Retail Security.
6. Order: application allowed in part; stay of execution granted; no order as to costs.

• Employment Tribunal: found that the company had unfairly dismissed Mr Marsh.
• Employment Appeal Tribunal: dismissed the company’s appeal on the apparent-bias ground.
• Court of Appeal (Civil Division): granted permission on three grounds, refused permission on the fourth, and granted a stay of execution.