Chalmers v Mentor Graphics (UK) Ltd

An Employment Tribunal must determine only issues properly raised by the pleadings and case-management process. It is not required to decide a potentially complex statutory issue which the claimant did not advance as a basis for resignation or identify as an issue for determination.

Apparent bias is assessed by identifying all relevant circumstances and asking whether a fair-minded and informed observer would conclude that there was a real possibility of bias. An ill-chosen or brusque judicial remark does not establish apparent bias unless, in its context, it creates that real possibility.

The claimant resigned from her employment as Human Resources Manager and brought a claim of constructive unfair dismissal. Her principal case was that the respondent required her to conduct sham redundancy-selection exercises.

The Employment Tribunal at Reading dismissed the claim on 15 May 2013. It found that the redundancy processes were not shams and that the claimant had misunderstood the purpose of a financial spreadsheet.

On appeal, the claimant contended that the Tribunal should have determined whether the acquisition of Flowmaster Ltd involved a TUPE transfer and whether the respondent's response to her concerns entitled her to resign. She also alleged apparent bias arising principally from an Employment Judge's remark during the hearing.

1. Appeal dismissed. The Employment Tribunal correctly understood the issues before it. The claimant's pleaded case, schedule of issues, witness statement and submissions did not allege that a TUPE transfer had occurred, that any proposed dismissal was unlawful for that reason, or that she resigned because of a TUPE-related breach.

2. The question whether Flowmaster employees transferred under Transfer of Undertakings (Protection of Employment) Regulations 2006 was therefore not an issue for determination. It would in any event have required documents, evidence and argument on substantial matters not prepared or identified by either party, including the effect of Regulation 7. The Tribunal was entitled to address the limited complaint concerning the claimant's wish to obtain external legal advice without deciding the TUPE issue.

3. Applying the approach derived from In Re Medicaments and Related Classes of Good (No 2) [2001] 1 WLR 700, and approved in Porter v Magill [2002] 2 AC 357, the Appeal Tribunal considered all circumstances and asked whether a fair-minded and informed observer would see a real possibility of bias.

4. The Employment Judge's reference to “scum rising to the top” was plainly unacceptable and poorly chosen. In context, however, it was an impromptu attempt to clarify the evidence about a process. It did not concern the claimant or identified employees and did not convey a view on the validity or legality of the process. The Judge's direct and sometimes brusque interventions, including keeping the representative to the defined issues, likewise did not establish apparent bias.

• Employment Appeal Tribunal: dismissed the claimant's appeal.
• Employment Tribunal (Reading): dismissed the claimant's constructive unfair dismissal claim on 15 May 2013.