Albion Hotel (Freshwater) Ltd v Silva & Anor

A tribunal’s procedural error in relying on authorities without inviting submissions does not, without more, establish bias or apparent bias. An appellate tribunal has a discretion when remitting a case and is not subject to a general rule requiring rehearing by a differently constituted tribunal. Relevant considerations include the scope of the remitted issue, the length and cost of a rehearing, tribunal resources, and practical justice. A late allegation of bias, which could have been raised earlier, will ordinarily be rejected. Remitting a narrow issue to the original tribunal does not of itself breach natural justice or Article 6 of the European Convention on Human Rights.

Managers of a hotel brought claims including automatically unfair dismissal under Employment Rights Act 1996, alleging that their dismissals followed assertions of entitlement to unpaid bonuses. The Employment Tribunal found in their favour.

On appeal, the Employment Appeal Tribunal identified a procedural failure because the Tribunal had relied on three authorities without giving the parties an opportunity to make submissions. It remitted the narrow issue to the original Tribunal, subject to a proviso concerning practical impossibility or impracticability. Albion later alleged bias and sought permission to appeal against that remittal order and an earlier order. The central issue was whether justice, natural justice or Article 6 required a differently constituted tribunal.

1. Application dismissed. Permission to appeal was refused.
2. The Employment Appeal Tribunal’s proviso was properly construed. It contemplated subsequently arising events, such as death or incapacity of a tribunal member, not a bias allegation raised for the first time after the relevant order. Albion’s challenge to that construction was also substantially out of time.
3. A litigant is not entitled to choose the tribunal before which the case is heard. Dissatisfaction with a decision does not establish actual or apparent bias. The Tribunal’s failure to invite submissions on authorities was an error of judgment and a procedural failure, but it did not demonstrate bias.
4. There was no general rule that a case affected by serious procedural error must be remitted to a differently constituted tribunal. The Employment Appeal Tribunal had a complete discretion. It could consider the narrow scope of the remitted issue, the previous three-day hearing, the costs and practicality of a rehearing, and the waste of tribunal resources.
5. The lay members could fairly reconsider the matter in light of the further submissions and the Employment Appeal Tribunal’s decision. There was no breach of natural justice or Article 6. McGonnell v The United Kingdom concerned a materially different institutional situation, while Porter v Magill confirmed that Article 6 issues had been considered by the House of Lords.

• Employment Tribunal: found that the respondents had been automatically unfairly dismissed because of an unlawful deduction of bonuses under section 104 of the Employment Rights Act 1996.
• Employment Appeal Tribunal: allowed the procedural ground of appeal and remitted the narrow issue to the original Tribunal, later dismissing Albion’s challenge to that course.
• Court of Appeal (Civil Division): dismissed the application for permission to appeal.