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Tribunal Bias

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This case is an example of a tribunal decision being set aside because of apparent bias (i.e. where the fair minded and informed observer present at the hearing, not being a party or associated with a party, having considered the facts, would consider that there was a real possibility that the tribunal was biased).

An employment tribunal chair, at the outset of a case, said to the employer's representative (who was not a legal representative) that it "may be in some difficulties in maintaining that the claimant was dismissed by reason of her conduct as it appeared from the [documents] lodged by the [employer] that there was no indication that the reason for the [employee's]dismissal was her conduct."

As a result of that indication, the employer conceded that the dismissal was unfair (a position it had previously challenged). It then appealed.

The EAT (Lady Smith presiding) noted that the representative, also at the EAT, "was anxious, not confident and it was easy to envisage that he would have been vulnerable to pressure".

Against that impression of the representative, and the fact that the chairman had not expressly said "This is only a preliminary view and we are open to persuasion", the EAT considered the test for apparent bias was made out. Accordingly it set aside the finding of unfair dismissal and allowed the employer to withraw its concession.

Chris Project v Hutt