W Finlayson, trading as Finlaysons v A McMahon

The Employment Appeal Tribunal refused the appellant's appeal against an Employment Tribunal finding of unfair dismissal. Applying the objective test for apparent bias in Porter v Magill and the guidance in Locabail and Resolution Chemicals, the EAT held that the judge's interventions and case management choices, while occasionally unorthodox, did not give rise to a real possibility of bias. On remedy, the EAT treated criticisms of the Tribunal's assessment of loss and mitigation as impermissible re‑argument of findings of fact and upheld the Tribunal's use of the Burchell test and the Employment Rights Act 1996 (sections 98(4), 122 and 123) in assessing liability and awards.

Background and procedural posture. This appeal arises from an Employment Tribunal at Glasgow judgment of 19 February 2019 which found that the claimant had been unfairly dismissed and awarded a basic award of 524 and a compensatory award of 15,506.14. The appellant appealed to the EAT. A Rule 3(10) hearing in April 2021 permitted most grounds to proceed to a full hearing before Lord Fairley, and the appeal was heard on 27 January 2022 with judgment on 11 February 2022.

Facts. The appellant was a sole practitioner solicitor who employed the claimant as a typist/receptionist from 4 August 2015 to 22 November 2017. A dispute arose after the claimant was accused (indirectly via a colleague's observation) of internet shopping during work. The claimant took sickness absence and produced fit notes. The appellant invited the claimant to a disciplinary meeting; the claimant replied that she was unfit and complained of the appellant's "persistent harassment". The appellant treated that phrase as a serious accusation of criminal conduct, dismissed the claimant summarily on 22 November 2017, and the claimant appealed. The appeal was conducted by the appellant and upheld.

Nature of claim and relief sought. The claimant brought proceedings for unfair dismissal and notice pay. The Employment Tribunal found dismissal unfair and made basic and compensatory awards; the appellant appealed challenging both apparent bias/procedural fairness at the Tribunal hearing and the assessment of compensation.

Issues framed by the EAT. The principal issues were (i) whether the Employment Judge's conduct and case management created a real possibility of apparent bias under the Porter v Magill test and related authorities, and (ii) whether the Employment Judge erred in law in assessing the compensatory award, including alleged misapplication of Income Support rules and findings about mitigation and fitness for work.

Reasoning and conclusions. The EAT reviewed each specific episode relied upon by the appellant: the judge's interventions over the meaning of "persistent harassment"; discussion about calling a trainee witness (Ms McKay); handling of an unlodged document in cross-examination; the judge's questioning about mitigation and job applications; directions about written and oral submissions and threatened costs orders; and references to authorities and independent legal research. The EAT stressed the need to view events in context and applied the objective Porter v Magill test and principles in Locabail and Resolution Chemicals. It concluded that the judge's interventions were legitimate case management and evidence-focusing steps, or at worst unorthodox but not indicative of apparent bias. On remedy the EAT treated the appellant's criticisms as attempts to re-argue factual findings, noted the Tribunal's express finding that the claimant was fit for work from 19 December 2017, and held that analysis of Income Support rules was unnecessary given the Tribunal's factual findings. The appeal was refused.

Appeal dismissed. The EAT held that, although aspects of the Employment Judge's case management were unorthodox and sometimes over-lengthy in legal self-direction, there was no real possibility of apparent bias under Porter v Magill when the hearing is viewed in context. The EAT also held that the appellant's challenges to the compensatory award were re-arguments of fact; the Tribunal's findings (including that the claimant was fit for work from 19 December 2017 and had taken steps to mitigate) were open to it and not vitiated by legal error.

Appeal from an Employment Tribunal, Glasgow (Employment Judge Rory McPherson) judgment dated 19 February 2019 finding unfair dismissal and awarding a basic and compensatory award. A Rule 3(10) hearing in April 2021 permitted most grounds to proceed to full hearing. Appeal heard by the Employment Appeal Tribunal (Lord Fairley) 27 January 2022; judgment delivered 11 February 2022 ([2022] EAT 30).