Menzies Distribution Ltd v Mendes

Where a judge has already reached and announced a firm conclusion on a disputed substantive issue after hearing evidence and submissions, the judge should not conduct a fresh hearing of that same issue when the original reasons are unavailable. A fair-minded and informed observer would conclude that there was a real possibility of bias.

The proper course is to revoke the unreasoned decision in the interests of justice and remit the issues to a differently constituted tribunal. A decision validly announced under rule 30 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 is not automatically a nullity merely because reasons cannot later be supplied.

The claimant brought employment claims, including disability discrimination. At a pre-hearing review in December 2012, the Employment Judge heard evidence and submissions and announced that she was disabled, but gave no reasons. The recording was lost and the judge later said that he could no longer remember material aspects of the case.

In June 2013, the same judge re-heard the disability issue, again found that the claimant was disabled, and also dealt with extension-of-time and amendment matters. The employer appealed, principally alleging apparent bias. The central issue was whether the judge could fairly re-determine the substantive disability issue after having reached and announced a firm earlier conclusion upon it.

1. Appeal allowed. The June 2013 judgments and consequential orders were set aside. The December 2012 decision and the February 2013 consequential order were revoked, and the outstanding issues were remitted to a differently constituted Employment Tribunal.

2. The applicable test was whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased: Porter v Magill, [2002] 2 AC 357. Such an observer is neither complacent nor unduly sensitive or suspicious: Lawal v Northern Spirit Ltd, [2003] ICR 856.

3. The Employment Judge had heard evidence and submissions in December 2012, had reached and announced a firm, rather than provisional, conclusion that the claimant was disabled, and then purported to decide precisely that factual issue again in June 2013. The observer would reasonably consider that there was a real possibility that the earlier conclusion would influence the later hearing. The common law requirement that justice be seen to be done applied to an Employment Judge deciding this issue.

4. The earlier decision should have been revoked. Although it was validly announced, reasons had not been given and could no longer be provided. The only feasible course was a fresh determination, with revocation in the interests of justice under rule 34(3)(e) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004.

5. Guest v Alpine Soft Drinks Ltd, [1982] ICR 110, did not make the December decision a nullity. It concerned differently worded rules requiring a signed document containing reasons. Under the current rules, the absence of reasons did not itself invalidate an announced decision, but could justify review or an appeal for failure to give reasons.

• Employment Appeal Tribunal: Allowed the employer's appeal from judgments following the 19 June 2013 pre-hearing review. It set aside the June 2013 judgments, revoked the December 2012 decision and a consequential February 2013 order, and remitted the issues to a differently constituted Employment Tribunal.
• Employment Tribunal: The Employment Judge had announced in December 2012 that the claimant was disabled, but gave no reasons. Following a further hearing in June 2013, the judge confirmed that conclusion and dealt with related amendment and limitation issues.