The Manchester College v Hazel & Anor

Where new facts raise sufficient concern about apparent bias in an employment tribunal, the Court of Appeal may adjourn the substantive appeal so that the Employment Appeal Tribunal can consider a review application under rule 33(1)(c) of the Employment Appeal Tribunal Rules. This is appropriate where the facts require investigation and the issue concerns the tribunal’s constitution. The appellate court should avoid deciding the merits at that stage. A broad inquiry or delay does not necessarily defeat an adjournment if there is a real issue for review. The Employment Appeal Tribunal decides whether to exercise its discretion and what questions should be put to the judge. An adjournment does not imply that the proposed challenge will succeed.

The respondents succeeded in the employment tribunal and successfully resisted the College’s appeal to the Employment Appeal Tribunal. The substantive appeal to the Court of Appeal concerned the operation of the TUPE Regulations, particularly Regulation 7. Shortly before the hearing, the College sought to add a ground alleging apparent bias after learning that the part-time Employment Judge might belong to the same trade union as the employees. The judge declined to disclose whether she belonged to a trade union. The College alternatively sought an adjournment to apply to the Employment Appeal Tribunal for a review in the interests of justice. The central issue was whether the appeal should be adjourned and remitted for that application, rather than whether the bias allegation was established.

The Court of Appeal unanimously adjourned the substantive appeal and remitted it to the Employment Appeal Tribunal. It did not determine the TUPE issues or the merits of the proposed apparent-bias ground.

1. The new ground was based on circumstances unknown to the College during the employment tribunal and EAT proceedings. The potentially material fact was the Employment Judge’s possible membership of the same union as the employees. Her other professional activities were not regarded as relevant.
2. The appropriate procedural route was an application to the EAT for review in the interests of justice under rule 33(1)(c) of the Employment Appeal Tribunal Rules. The EAT had defined procedures for allegations of apparent bias and was better placed to address the issue in the context of the constitution of employment tribunals.
3. Having been referred to the leading apparent-bias authorities, including Porter v Magill [2002] 2 AC 357, Davidson v Scottish Ministers [2004] UKHL 34 and Helow v Secretary of State for the Home Department [2008] 1 WLR 2416, the court considered that there was sufficient concern to permit the proposed review application. The court deliberately expressed no concluded view on its merits.
4. The EAT would decide whether to exercise its review discretion and what questions, if any, should be put to the Employment Judge. The questions had been framed broadly, but they could be refined. Delay, including a period when correspondence had remained dormant, did not make remittal inappropriate, and the inquiry could not conclusively be dismissed as a fishing expedition at that stage.
5. The EAT review need not be undertaken by the tribunal in its original composition. The Court of Appeal would resume the substantive appeal after the review application had been determined, with any further appeal capable of being joined if appropriate.

1. Court of Appeal (Civil Division) The substantive appeal was adjourned and remitted to the Employment Appeal Tribunal to enable an application for review under rule 33(1)(c) of the Employment Appeal Tribunal Rules.
2. Employment Appeal Tribunal The respondents successfully resisted the College’s appeal from the employment tribunal.
3. Employment tribunal The respondents succeeded in their applications.