BLP UK Ltd. v Marsh

The Court of Appeal dismissed the employer's appeal against the Employment Appeal Tribunal's decision which had rejected a complaint that the Employment Tribunal chair had given the appearance of bias. The controlling legal principle was the objective test of apparent bias: whether a fair-minded and informed observer would conclude there was a real possibility that the tribunal was biased. The court concluded that the EAT had applied the correct test (as explained in Re Medicaments and Porter v McGill) and was entitled to take into account the context of the hearing, the developing views of the tribunal as evidence unfolded and the EAT's own experience when forming the perspective of the hypothetical observer. The chairman's later intemperate commentary did not alter the objective appraisal of events at the hearing, and the evidence of hostile body language was not sufficiently corroborated to demonstrate a real possibility of bias. The appeal was therefore dismissed.

This is an appeal by BLP UK Ltd against an Employment Appeal Tribunal order (19 April 2002) which dismissed BLP's challenge to an Employment Tribunal decision (sent 24 January 2001) that the respondent Anthony Marsh had been unfairly dismissed. The employer alleged that the Employment Tribunal chairman (Miss H A McWatt) gave the appearance of bias at the substantive hearing by hostile body language and an unfavourable tone in subsequent written comments. The appeal to the Court of Appeal concerned whether the EAT had applied the correct objective test for apparent bias and whether its factual and contextual conclusions were permissibly reached.

Background and procedural posture:

• Mr Marsh, transferred to BLP under the business transfer, was dismissed for alleged incapability after customer complaints; he claimed unfair dismissal.
• The Employment Tribunal found the dismissal unfair and awarded compensation.
• BLP complained to the Regional Chairman and appealed to the EAT on four grounds, including appearance of bias and lack of reasons for compensation; the EAT allowed the compensation-ground to be argued fully and gave leave to argue bias.
• The EAT heard affidavits from employer witnesses alleging hostile body language and received comments from tribunal members and the chairman.

Issues framed:

• Whether the EAT applied the correct legal test for apparent bias.
• Whether the EAT erred in considering surrounding circumstances and in speculating about reasons for the chairman's differential treatment of witnesses.
• Whether the EAT improperly relied on findings of fact made by the Employment Tribunal when deciding the bias complaint.

Court's reasoning and disposition:

• The Court of Appeal held that the EAT had correctly stated and applied the objective test (the fair-minded and informed observer test as explained in Re Medicaments and endorsed by Porter v McGill).
• The EAT was entitled to place the conduct complained of in its factual context (including preliminary rulings, late amendments and perceived weakness of the employer's case) because the hypothetical observer would be informed of those surrounding circumstances.
• Although the chairman's later correspondence adopted an intemperate tone, the EAT was entitled to treat that commentary as imperfect after-the-event material and not determinative of what an objective observer would have concluded from hearing conduct in court.
• The EAT did not err in using the Employment Tribunal's factual findings as background reassurance; its decision that the bias ground failed was open to it on the material before it.

The Court of Appeal dismissed the appeal.

This was an appellate appeal and the Court of Appeal dismissed the appeal. The court held that the Employment Appeal Tribunal had applied the correct objective test for apparent bias (the fair-minded and informed observer test as explained in Re Medicaments and endorsed in Porter v McGill), that the EAT was entitled to assess the contested conduct in the factual and procedural context of the hearing and to use its own experience when forming the view of the hypothetical observer, and that the evidence did not establish a real possibility of bias warranting setting aside the Employment Tribunal's decision.

Appeal to the Employment Appeal Tribunal from an Employment Tribunal (Sheffield) decision (Extended Reasons sent 24 January 2001). The EAT gave an order on 19 April 2002 dismissing BLP's appeal on the bias ground (the EAT allowed one ground relating to reasons on compensation to proceed). Robert Walker LJ granted permission to appeal to the Court of Appeal on three of four grounds; the Court of Appeal heard the appeal and dismissed it on 16 January 2003.