W Finlayson, trading as Finlaysons v A McMahon

Apparent bias must be assessed through the eyes of a fair-minded and informed observer, with close attention to the full context of the hearing. Robust or unusual case management, judicial questioning, and steps taken to restore procedural fairness do not establish bias unless they create a real possibility that the tribunal was biased.

In an unfair-dismissal case, the reasonableness inquiry under section 98(4) of the Employment Rights Act, 1996 concerns the employer's belief, its reasonable grounds, the investigation undertaken, and the reasonableness of the response. An appeal cannot re-argue findings of fact on loss, fitness for work, or mitigation in the absence of an error of law.

The claimant, formerly employed as a typist and receptionist, was summarily dismissed after asserting in correspondence that the employer's conduct amounted to persistent harassment. The Employment Tribunal at Glasgow found the dismissal unfair and awarded a basic award of £524 and compensation of £15,506.14.

The employer appealed. He alleged apparent bias and procedural irregularity arising from the Employment Judge's interventions, case management, treatment of a late document, directions concerning submissions, legal research, and an online video made before the Judge's appointment. He also challenged the findings on loss, fitness for work and mitigation.

The central questions were whether the hearing gave rise to a real possibility of apparent bias and whether the remedy decision disclosed an error of law.

1. Appeal refused. The alleged instances of apparent bias, whether considered separately or together, did not satisfy the test in Porter v Magill [2002] AC 357. The required assessment was that of a fair-minded and informed observer, who considers the complete context of the hearing.
2. The Employment Judge's questioning about whether the employer reasonably understood persistent harassment to be an allegation of criminal conduct was legitimate. The employer had made no inquiry of the claimant before dismissing her. The relevant issue under section 98(4) of the Employment Rights Act, 1996, applying British Home Stores v Burchell [1979] ICR 303, included whether that belief was reasonably held after a reasonable investigation.
3. The other challenged interventions were case-management measures, not evidence of partiality. The Judge had permissibly addressed relevance and fairness, prevented the claimant from being ambushed with an undisclosed document, and sought to focus evidence on mitigation. Although some procedure was unusual and threats of costs orders were heavy-handed, the employer identified no resulting unfairness or lost opportunity to make submissions.
4. The Judge's reference to additional authority and Income Support rules did not undermine the decision. The Tribunal had correctly applied sections 98(4), 122 and 123 of the Employment Rights Act, 1996. The statutory rules concerning Income Support were irrelevant to the unchallenged findings that the claimant was fit for work and actively seeking employment.
5. The remedy grounds were attempts to revisit factual findings. There was evidence supporting loss and reasonable mitigation. No perversity challenge or other error of law was shown.

• Employment Appeal Tribunal: Appeal dismissed in [2022] EAT 30.
• Employment Tribunal at Glasgow: On 19 February 2019, found the claimant unfairly dismissed and awarded a basic award of £524 and a compensatory award of £15,506.14.