Dorbcrest Homes Ltd v Fishwick

A tribunal member should recuse themselves where they have already given a formal and apparently definitive decision on issues which a newly constituted tribunal must decide afresh. The question is one of apparent fairness: a fair-minded and informed observer must consider whether there is a real risk that the other tribunal members may feel inhibited from reaching a different conclusion. Actual influence or pressure need not be shown. A fresh tribunal is required where the unfairness arises from the chair having already committed themselves on the substantive issues. This differs from a rehearing ordered because of misdirection or fresh evidence, where the same tribunal may sometimes fairly reconsider the matter.

The respondent brought proceedings concerning entitlement to a redundancy payment following lay-off. His claim was later amended to include unfair dismissal. Employment Judge O’Hara, sitting alone, determined the unfair-dismissal claim even though the required written consent to a judge-alone hearing had not been given.

On review, the unfair-dismissal decision was revoked and the claim was listed before a full tribunal chaired by the same Employment Judge. The appellant applied for her recusal, arguing that she had already decided the central issues. The application was refused. The appeal concerned whether the judge’s previous formal decision created apparent unfairness and whether the objection had been waived.

1. Appeal allowed. The appellant was entitled to have the substantive unfair-dismissal claim heard by a tribunal whose three members could each reach their own view on the evidence.
2. The Employment Judge had previously given a formal judgment determining the principal liability issues: whether there had been a constructive dismissal, its reason, and whether it was unfair. When she later chaired the full tribunal required to decide those issues afresh, a fair-minded and informed observer would see a real risk that the two lay members might feel inhibited from reaching a different conclusion. That was sufficient apparent unfairness, regardless of whether the lay members were in fact influenced.
3. The objection did not depend on proving actual bias. Labels were secondary to the substantive question of apparent fairness. Lawal v Northern Spirit Limited [2003] ICR 856 illustrated the importance of ensuring that lay members do not appear liable to undue influence by the judge with whom they sit.
4. The analogy with R v Bow Street Metropolitan Stipendiary Magistrate, ex p. Pinochet Ugarte (no 2) [2000] 1 AC 119 supported a rehearing before a differently constituted tribunal where members of the original decision-making body had already expressed conclusions on the issues.
5. The objection was not waived by being raised after the jurisdiction point under section 32 of the Employment Act 2002 had been determined. That point concerned an issue on which the judge had not previously adjudicated, and it was sensible to hear it first.
6. The claim was remitted to a fresh tribunal. Findings not expressly revoked by the review order remained binding, but whether the claimant had been dismissed remained live. The section 32 point and the related costs order could not be reopened.

• Employment Tribunal: Employment Judge O’Hara, sitting alone, found unfair dismissal and awarded compensation. The decision was later revoked on review because the tribunal was not properly constituted, and the claim was ordered to be reheard by a full tribunal.
• Employment Tribunal: The full tribunal, again chaired by Employment Judge O’Hara, rejected the recusal application, found unfair dismissal and awarded £17,016.10.
• Employment Appeal Tribunal: The appeal was allowed. The unfair-dismissal claim was remitted to a fresh tribunal.