Whyte v The London Borough Of Lewisham

An allegation of judicial bias, once withdrawn, may be dismissed. Such allegations are serious and should be supported by proper particulars and evidence.

On a preliminary appeal concerning unfair-dismissal compensation, a full hearing is warranted where the material arguably shows that the tribunal miscalculated benefit recoupment or overlooked material evidence. A redeployment policy preserving the pay rate of a former post does not, without clear words, displace other contractual terms, including sick-pay provisions.

The claimant had succeeded in an unfair-dismissal claim before the Employment Tribunal, which made a remedy award of £5,404.63. He appealed against the remedy judgment and the refusal of a review application.

At this preliminary hearing, he withdrew allegations that the Employment Judge had been biased or that the proceedings had been procedurally unfair. Two compensation grounds remained. The first concerned whether benefits had been overstated in the calculation of compensation. The second concerned whether designation as a corporate redeployee entitled the claimant to full pay despite sickness absence.

1. The appeal was permitted to proceed only on the benefits issue. The available material arguably showed that the claimant had received only about £211 in benefits, whereas the remedy calculation appeared to attribute about £3,000 to benefits. If so, the Employment Tribunal may have made an arithmetic error or failed to acknowledge material evidence. That issue was directed to a full hearing.
2. The allegations of bias, apparent bias and procedural unfairness were dismissed. They had been expressly withdrawn. The tribunal nevertheless observed that allegations against judicial officers are serious, require proper supporting material, and had no substance on the facts asserted.
3. The redeployment ground was dismissed as having no reasonable prospect of success. The policy maintained the pay rate applicable to the former post until redeployment. Properly construed, it operated within the employee’s other terms and conditions. It did not override the sick-pay scheme or confer an unconditional entitlement to full pay during certified sickness absence. The point could therefore be dismissed even though the Employment Tribunal had not expressly addressed that precise construction argument.

• Employment Appeal Tribunal: This preliminary hearing allowed the appeal to proceed to a full hearing on the benefits calculation only, and dismissed the remaining grounds.
• Employment Tribunal, London South: The tribunal found the claimant unfairly dismissed on 28 September 2009. Its remedy judgment, sent with reasons on 10 May 2011, awarded £5,404.63. It also refused a review application in reasons sent on 20 May 2011.