Rowe v Halsall (t/a Malvern Nursing Home)

An allegation of apparent bias requires sufficient evidential material. The burden lies on the party alleging bias. In the absence of such material, the tribunal must assess whether a fair-minded observer, informed of the facts, would perceive a real possibility of bias.

Where an appellant fails without explanation to attend or prosecute an appeal, the appeal tribunal may proceed to determine it on the material available. An unsubstantiated allegation of apparent bias will fail.

The claimant’s claims of race discrimination, victimisation, unfair dismissal and whistleblowing detriment were struck out after non-compliance with unless orders requiring disclosure.

Employment Judge Lancaster refused the claimant’s application for a review. Her appeal against that refusal was permitted to proceed only on an allegation of bias. Although she had sworn an affidavit, she later said that it was invalid and did not provide other admissible evidence supporting the allegation.

Before the Employment Appeal Tribunal, the claimant did not attend, could not be contacted, and had not complied with directions to prepare the appeal. The central issue was whether there was material capable of establishing apparent bias in the Employment Judge’s refusal of a review.

1. Appeal dismissed. The Tribunal was entitled to proceed in the claimant’s absence. It had waited for her, made reasonable efforts to contact her, and received no explanation for her failure to attend or comply with directions for prosecuting the appeal.

2. The only permitted ground was apparent bias. The claimant bore the burden of proving it. Her purported affidavit could not provide the necessary evidential foundation because, in her subsequent letter, she had disowned it. She had supplied no replacement evidence.

3. The Tribunal considered the refusal-of-review letter itself. Bias was not self-evident from that document. On the material available, it could not conclude that a fair-minded observer informed of the facts would consider there to be a real possibility that the Employment Judge was biased.

4. There was therefore insufficient material to support the allegation of apparent bias. The appeal against the refusal to review the strike-out decision failed.

• Employment Appeal Tribunal: the appeal against the refusal of a review was dismissed: [2013] UKEAT 0622_12_2405.
• Employment Tribunal: the claimant’s claims were struck out on 13 July 2012 for non-compliance with unless orders for disclosure. Employment Judge Lancaster then refused a review by letter dated 3 August 2012.