BLP UK Ltd. v Marsh

Apparent bias is determined objectively. The court must ascertain all circumstances bearing on the allegation and ask whether a fair-minded and informed observer would conclude that there was a real possibility of bias.

The observer considers impugned conduct in its full context. A tribunal may form strong provisional views as evidence develops, control irrelevant material and question witnesses firmly. Differential warmth, pointed questioning or discomfort to a party does not establish apparent bias where the conduct is reasonably explained by the proceedings and does not indicate a closed mind.

An employment tribunal upheld an employee’s unfair dismissal complaint and awarded compensation. The employer appealed to the Employment Appeal Tribunal, alleging that the tribunal chairman’s questioning, body language and contrasting treatment of the parties created an appearance of bias. It also relied on the tone of comments which the chairman later supplied in answer to that allegation.

The Employment Appeal Tribunal rejected the bias ground but allowed a separate challenge concerning the reasons for compensation and remitted that issue to a fresh tribunal. The employer appealed on the grounds that the Employment Appeal Tribunal had applied an excessively rigorous bias test, had improperly speculated about the chairman’s reasons for behaving differently towards the parties, and had relied on factual findings challenged for bias.

1. Appeal dismissed. Peter Gibson LJ, with whom Keene LJ and Jacob J agreed, held that the Employment Appeal Tribunal had applied the correct objective test. It repeatedly considered whether the circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility of bias. Isolated language in its judgment did not show that it had substituted its own subjective assessment of the chairman’s impartiality.
2. The Employment Appeal Tribunal was entitled to consider its experience of tribunal proceedings when identifying matters which an informed observer would take into account. The test stated in Re Medicaments v Related Classes of Goods (No 2) [2001] 1 WLR 700, as endorsed with modification in Porter v McGill [2002] 2 AC 357, required consideration of all circumstances bearing on the allegation.
3. The chairman’s conduct could not be assessed in isolation. A tribunal inevitably reacts to the applications, evidence and submissions presented to it. It may form strong developing views about the merits, prevent time being spent on peripheral matters and press a party for answers on points likely to affect the result. Such conduct may be uncomfortable for an advocate or witness, but does not by itself establish apparent bias.
4. The Employment Appeal Tribunal therefore acted legitimately in considering why the chairman appeared less enthusiastic about the employer’s case. A fair-minded and informed observer would know the preceding circumstances, including the weakness of applications and the absence of elementary procedures normally relevant to a capability dismissal. In context, the difference in manner did not indicate a closed mind.
5. The chairman’s later comments were capable of shedding some light on the hearing, but their intemperate tone did not require a finding of apparent bias. They were made months later, after repeated requests for a response to a serious allegation against her integrity, and concerned a different issue from those tried at the substantive hearing.
6. The Employment Appeal Tribunal’s reference to the employment tribunal’s factual findings caused no legal error. Those findings were used only as reassurance after the bias complaint had already failed. Keene LJ described that discussion as a postscript which formed no part of the essential reasoning.

1. Court of Appeal (Civil Division): The employer’s appeal against rejection of its apparent-bias ground was dismissed. The court upheld the Employment Appeal Tribunal’s conclusion that the tribunal hearing did not give rise to a real possibility of bias.
2. Employment Appeal Tribunal: The employer’s bias appeal was dismissed. A separate appeal concerning inadequate reasons for the compensation award was allowed and that issue was remitted to a fresh tribunal.
3. Employment Tribunal: The employee’s unfair dismissal complaint was upheld and compensation of £8,781.30 was awarded.