Kemmeni v The Morse Group Ltd & Ors

For apparent bias, the question is whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias. A tribunal’s adverse view of a litigant on a procedural matter, or criticism of the litigant’s conduct, does not itself establish bias. An appellate tribunal need not recite the test in exact terms or obtain further evidence if it has the relevant facts and reasonably considers its investigation sufficient. Permission to appeal was refused where suspicion that a litigant was secretly recording proceedings did not objectively indicate bias, and where the contractual commission point disclosed no arguable error.

Mr Kemmeni, a black sales executive, brought claims for unfair dismissal, breach of contract and race discrimination. The Employment Tribunal dismissed the claims and ordered him to pay costs for part of the hearing. At a preliminary hearing on 26 September 2002, the Employment Appeal Tribunal allowed two grounds to proceed to a full appeal but refused permission on other grounds.

This was a renewed application for permission to appeal. The principal issue was whether the Employment Tribunal’s suspicion that Mr Kemmeni was secretly recording the proceedings gave rise to apparent bias, and whether the Employment Appeal Tribunal had investigated that allegation sufficiently. A further issue concerned the need to refer to the written employment contract in deciding the commission claim.

1. Application refused. Keene LJ delivered the principal judgment, and Tuckey LJ agreed. The Court of Appeal concluded that none of the matters raised had a real prospect of success.
2. The applicable apparent-bias test was whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the Employment Tribunal was biased. The test was stated in Porter v Magill [2001] UKHL 67, [2002] 2 AC 357. The Employment Appeal Tribunal was not required to reproduce the test in precise and detailed terms.
3. Whether further investigation was required depended on the circumstances. The Employment Appeal Tribunal had the relevant facts, including the Employment Tribunal chairman’s detailed account of the events. It was entitled to conclude that further investigation was unnecessary. The notes of evidence were unlikely to assist because the allegation concerned the conduct of the proceedings rather than the substantive claims.
4. The Employment Tribunal had acted properly in requiring all parties to place electronic devices on a table. Its adverse view of the applicant’s conduct on that procedural issue did not establish bias in determining the substantive claims. Tuckey LJ added that a bare assertion of bias, criticism of a litigant, or rejection of the litigant’s evidence was insufficient; some real ground for believing that bias might exist had to be shown.
5. The contract issue concerned commission on an unexpected Boo.com transaction which the applicant had not handled. Since no specific case had been advanced before the Employment Tribunal that the written contract entitled him to commission on matters with which he had not dealt, the Tribunal was not required to set out the written contract. The Employment Appeal Tribunal had dealt with that issue correctly.

• Court of Appeal (Civil Division): renewed application for permission to appeal refused on 8 May 2003.
• Employment Appeal Tribunal: at a preliminary hearing on 26 September 2002, allowed two grounds to proceed to a full appeal hearing and refused other grounds.
• Employment Tribunal: dismissed the claims for unfair dismissal, breach of contract and race discrimination, and ordered costs for five days of the 12-day hearing.