London Borough Of Southwark v Jiminez

A complaint that an employment tribunal was biased or acted improperly must be raised through the procedure in paragraph 9 of the Practice Direction (Employment Appeal Tribunal - Procedure) 1996. The complaint must be fully particularised, supported by evidence where appropriate, and put to the tribunal members so that they have an opportunity to comment. An Employment Appeal Tribunal should be cautious about permitting a complaint to be developed at the appeal hearing when that procedure has not been followed. This is particularly important where the impugned remarks may have been made during a consensual hearing to receive the tribunal’s tentative view after most evidence had been heard.

The Employment Tribunal found for Mr Jiminez on claims including disability discrimination and unfair dismissal. Southwark appealed. On 17 July 2002, the Employment Appeal Tribunal allowed the appeal on those issues, set aside the tribunal’s decision and remitted them for rehearing by a differently constituted tribunal.

Mr Jiminez renewed his application for permission to appeal. The proposed appeal challenged the EAT’s conclusion that events on 12 March 1999 demonstrated bias or procedural impropriety. The complaint had been developed through amended grounds and later affidavits, but the Employment Tribunal members criticised had not received those materials or an opportunity to comment under paragraph 9 of the Practice Direction (Employment Appeal Tribunal - Procedure) 1996. The central issue was whether permission should be granted and whether the tribunal’s account of the hearing’s context should first be obtained.

Lord Justice Kennedy gave the reasons for the court. Lord Justices Mummery and Longmore agreed.

1. Permission and scope. The renewed application was allowed. Permission to appeal was granted in relation to grounds 1 to 4, but not ground 5, which had little merit. The order concerned permission only and did not finally determine the appeal.
2. Procedural safeguard. Paragraph 9 of the Practice Direction (Employment Appeal Tribunal - Procedure) 1996 requires a complaint about an employment tribunal’s conduct, including bias or procedural irregularity, to be fully particularised in the notice of appeal. It also provides for affidavits and other relevant material to be supplied to the tribunal chairman and, where appropriate, the lay members, so that they may comment. Complaints of that kind should not be raised or developed at the appeal hearing unless the procedure has been followed.
3. Materiality of the omitted opportunity. The EAT was aware that the procedure had not been followed, but treated the material facts concerning 12 March 1999 as common ground. The Court of Appeal was concerned that the tribunal members had not been shown the amended grounds, later affidavits or respondents’ notice, although those materials developed the allegation on which the EAT relied.
4. Further factual clarification. The evidence suggested that the hearing might have taken place with both parties’ consent so that the tribunal could express a tentative view after hearing almost all the evidence. That context could materially affect the assessment of bias. The Employment Tribunal was therefore invited, if it chose, to comment on the relevant materials and to explain why the parties were seen in chambers and why no shorthand writer was present. The matter was to proceed on grounds 1 to 4.

• Court of Appeal (Civil Division). On 31 July 2002, the court allowed the renewed application for permission to appeal, granting permission on grounds 1 to 4 but refusing it on ground 5: [2002] EWCA Civ 1435.
• Employment Appeal Tribunal. On 17 July 2002, the EAT allowed Southwark’s appeal on disability discrimination and unfair dismissal, set aside the Employment Tribunal’s decision and remitted those issues for rehearing by a differently constituted tribunal.
• Employment Tribunal. The tribunal had found for Mr Jiminez; its judgment was sent to the parties on 13 September 1999.