H Amin v Manchester Airport Group Plc & Anor

Where claims are automatically struck out for non-payment of deposit orders, the Employment Tribunal need not consider general relief-from-sanctions factors if no substantive application for relief was advanced. A postponement application cannot itself create a proper basis for relief where the claimant’s evidence is absent or inadequate.

Apparent bias is assessed objectively: whether a fair-minded and informed observer would consider that there was a real possibility that the party did not receive a fair hearing. Judicial criticism of an unmeritorious argument, an uncomplimentary description, or directions concerning costs will not ordinarily meet that threshold where the case was handled even-handedly.

The claimant appealed against the reserved judgment of the Manchester Employment Tribunal, sent on 16 January 2024, concerning claims arising from the termination of his employment. The Tribunal had made deposit orders and subsequently concluded that the claims stood struck out because the deposits had not been paid. It refused applications for postponement and relief from sanctions.

The claimant challenged the refusal of relief and alleged that the Employment Judge had displayed bias or animus towards his former representative. Permission to appeal was granted on those issues. The claimant did not attend the EAT hearing, which proceeded after the Tribunal was satisfied that he had been given repeated information about seeking a postponement and could advance the appeal without his former representative.

1. The appeal was dismissed. The EAT proceeded in the claimant’s absence because he had been repeatedly informed how to seek a postponement, had continued to communicate with the Tribunal, and had not shown that his circumstances prevented attendance or an application to postpone.
2. The Employment Tribunal had not erred in law in refusing relief from sanctions. The claimant’s representative accepted that the deposits had not been paid, so the claims stood struck out under rule 39(4) of the Employment Tribunal Rules. The claimant had been ordered to attend and give evidence and to produce the original cheque book stub, but had not done so. Once the postponement application was refused, there was no substantive or reasonable basis for an application for relief remaining. The Tribunal’s reasons adequately explained that position.
3. The Tribunal was not required, in those circumstances, to consider whether the default was deliberate and persistent or whether a fair trial remained possible. The authorities concerning the flexible approach to relief from sanctions did not assist because no application of substance had ultimately been advanced.
4. The apparent-bias challenge failed. The applicable question was whether the conduct or mindset of the Employment Judge gave rise, in the eyes of a fair-minded and informed observer, to a real possibility that the claimant had not received a fair hearing.
5. References to the representative not pressing a recusal application, to his prevarication, to his health, and to the possibility of a costs application did not meet that threshold. Read objectively, the written reasons recorded what occurred, addressed the case even-handedly, and contained no indication that the Judge’s reasonable view that the arguments were unmeritorious had prevented a fair hearing. The cumulative effect of the matters relied upon did not alter that conclusion.

• Employment Appeal Tribunal: The appeal against the Employment Tribunal’s judgment and reasons was dismissed.
• Manchester Employment Tribunal: The claimant’s claims were held struck out for non-payment of deposit orders. Applications for postponement and relief from sanctions were refused.