Martin v The Co-Operative Group Ltd (t/a The Co-Operative Pharmacy)

Apparent bias is assessed by asking whether, in all the circumstances, a fair-minded and informed observer would conclude that there was a real possibility of bias. A minor connection between a tribunal member and a party does not, without more, satisfy that test, particularly where the connection is disclosed and the parties are given an opportunity to object. A party who, after disclosure and an adjournment, accepts that the tribunal should proceed abandons any right to object on that ground. Tribunals need not record every irrelevant fact, read documentary productions before the hearing, or permit questioning on issues that do not arise for decision.

The claimant, a pharmacist employed as a pharmacy manager, resigned after being suspended following grievances made by two colleagues. The Employment Tribunal dismissed her claims, including unfair dismissal and subsidiary claims for holiday and bonus pay.

On appeal, she alleged apparent bias, inadequate preparation, failure to understand her case, improper restriction of witness questioning and procedural unfairness. The alleged bias relied principally on the Employment Judge’s membership of the Co-operative Society and a lay member’s membership of the Co-operative Party. The central issue was whether the circumstances established apparent bias or any other error of law.

1. Appeal dismissed. The Employment Appeal Tribunal was satisfied that the appeal was not well-founded.
2. The applicable test for apparent bias was whether, in all the circumstances, a fair-minded and informed observer would conclude that there was a real possibility that the tribunal was biased, applying Porter v McGill [2002] AC 357. That test was not met.
3. The reference to the claimant’s Hungarian nationality was neutral background and could be explained by the tribunal’s need to ensure that she understood proceedings conducted in English. The tribunal was not obliged to record that she was a qualified pharmacist because that qualification was irrelevant to the issues decided.
4. The tribunal members had read the ET1 and ET3 before the hearing. They were not expected to read documentary productions in advance. Parties had to refer specifically to documents relied upon during the evidence, so that the material became part of the case.
5. The Employment Judge properly disclosed the Co-operative links, gave the parties an opportunity to object and allowed an adjournment. The claimant then accepted that the tribunal should continue. Applying Jones v DAS Legal Expenses Insurance Co Ltd [2004] IRLR 218, she was taken to have abandoned any right to object on that basis.
6. The tribunal understood the claimant’s case. The relevant question was whether the employer had acted in good faith when suspending her, assessed by reference to the employer’s state of knowledge. The truth or fabrication of the colleagues’ grievances was not itself the issue, so questioning could properly be limited to whether the witnesses had been coached or encouraged by the employer.

• Employment Appeal Tribunal: dismissed the appeal from the Employment Tribunal’s judgment registered on 9 August 2010, which had dismissed the claimant’s claims.