University Hospital Coventry & Warwickshire NHS Trust v Burns

An Employment Tribunal does not show apparent bias merely by asking appropriate questions to clarify evidence on issues which it reasonably understands to be live, particularly where one party is unrepresented. The objective question is whether the fair-minded and informed observer would see a real possibility of bias.

A late amendment may properly be allowed where the Tribunal applies the Selkent balancing exercise, considers limitation and prejudice, and can fairly mitigate prejudice by permitting further evidence and response. An appeal outcome may be relevant to the overall dismissal and to disability-discrimination complaints, but the scope of the pleaded claim must be clarified.

The Claimant, a litigant in person, was dismissed for ill-health capability while on long-term sickness absence. She brought unfair dismissal and disability-discrimination claims under sections 15 and 21 of the Equality Act 2010. Her internal appeal against dismissal was subsequently dismissed.

During the full merits hearing, the Employment Tribunal understood the discrimination claims to extend to the appeal outcome. When the Respondent asserted that they did not, the Tribunal questioned the appeal officer and invited the Claimant to apply to amend. It granted the amendment and refused the Respondent’s application for recusal based on apparent bias. The Respondent appealed both interlocutory decisions.

1. Appeal dismissed. The Employment Tribunal was entitled to refuse recusal. Applying the objective test in Porter v Magill, the fair-minded and informed observer would not conclude that there was a real possibility of bias.

2. The Tribunal’s questions to the appeal officer were proper uses of its power under Rule 41 of the Employment Tribunals Rules of Procedure 2013. The Tribunal reasonably understood issues about the appeal to be in play. Its questions sought to clarify evidence relevant to those issues; it did not introduce evidence of its own or construct a party’s case. Although questions during cross-examination would preferably have been deferred until its conclusion, they were neither unduly leading nor indicative of partiality.

3. The Tribunal also acted fairly in explaining that, if the discrimination claims did not already include the appeal outcome, an amendment was required. It was entitled to draw this procedural issue to the attention of an unrepresented claimant. Its intervention arose from late-emerging uncertainty about the scope of the claims, rather than from a reaction to the Respondent’s closing submissions or an attempt to favour the Claimant.

4. The amendment decision was within the proper exercise of the Tribunal’s discretion under Selkent. It correctly treated the amendment as substantial and substantially out of time, considered whether it was just and equitable to extend time under section 123(1)(b) of the Equality Act 2010, and balanced the parties’ prejudice. It could accept the Claimant’s explanation and mitigate prejudice to the Respondent through further particulars, a response, supplementary evidence and further questioning.

5. It would generally have been preferable to require the proposed amendment in writing before deciding it. That omission was not fatal here because its factual substance was already known and the Respondent could fully oppose it. The case was remitted to the Tribunal to continue the part-heard merits hearing.

• Employment Appeal Tribunal: Dismissed the Respondent’s appeal against the Employment Tribunal’s decisions to permit amendment and to refuse recusal.
• Employment Tribunal: During a part-heard full merits hearing, granted an amendment to the disability-discrimination claims and refused the Respondent’s apparent-bias recusal application in reasons sent on 22 August 2019.