EAT finds "possible bias" in employment tribunal comments

Employment Tribunals will have to re-think their practice of offering "preliminary indications" of their views before cases have ended, following an EAT ruling on 17 June that a comments by an Employment Tribunal showed the possibility of bias against a local authority.

The London Borough of Southwark had employed Mr Jimenez, who had then become ill and finally resigned. He claimed the Council had discriminated against him under the Disability Discrimination Act, had constructively dismissed him, and that the dismissal was unfair. He won his Employment Tribunal case in 1999, but the council appealed.

The Employment Appeal Tribunal heard that the tribunal chairman met the barristers in the case for "the usual sort of discussions that sometimes tribunals have with counsel [to see if] helpful indications can be given". At the meeting, the tribunal chairman said the tribunal’s preliminary view was that "the way the [Council] has treated [Mr Jimenez] was appalling".

In a successful appeal to the EAT - which appears unprecedented - Mr Justice Bell found that these remarks showed that:

"The Tribunal had already reached a fixed, strongly adverse view of the council’s conduct. It…was a clear attempt to put heavy pressure on the council to compensate Mr.Jimenez."

Virtually all the evidence had been given to the tribunal over the 10 days before the meeting took place. But the parties had yet to make their final submissions. The judge in the EAT went on:

"The Chairman’s uninvited expressions of view were both injudicious and untimely, even at the late stage of the proceedings at which they were given… There was a real possibility or a real danger at least that the Tribunal was biased against the Council in the sense of having reached firm and final conclusions against it on important matters before its case, which of course included its final submissions, had been heard".

The Employment Appeal Tribunal ordered that the claim by a Mr Jimenez against the London Borough of Southwark should be heard again by a different Employment Tribunal.

Chris Quinn, the Cloisters barrister who represented Southwark commented:

"The EAT's decision will send shudders through Tribunals, and is likely to revolutionise the Tribunals’ practice of giving "indications" as to its thinking. It was the strong view of the EAT that parties are entitled to have their final submissions fairly heard".
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