In Lyfar-Cissƒ v Brighton and Sussex University Hospitals NHS Trust, the question was raised as to whether a tribunal decision was biased by the presence of a lay member at two hearings relating to the same parties. Dismissing the argument, the Employment Appeal Tribunal (EAT) held that "...a fair minded and informed observer would not see a real possibility of bias”.
Basic facts
Dr Lyfar-Cissƒ, a clinical biochemist, had worked for the Brighton and Sussex University Hospitals NHS Trust since 1985. In addition to her clinical duties, she was the lead person in the trust with responsibility for race equality.
Following an investigation by an independent senior barrister, she was invited on 10 August 2016 to a disciplinary hearing. She was given a final written warning in November 2016 by the chair of that hearing, Ms Cashman, for bullying and harassing a member of staff, and for verbally abusing a senior manager in a way that amounted to harassment. In February 2017, Dr Lyfar-Cissƒ lodged a tribunal claim alleging direct race discrimination and victimisation.
She was dismissed in June 2017, following a damning report by the Care Quality Commission which found a culture of bullying and harassment within the trust. One of those found responsible for unlawful discrimination was Dr Lyfar-Cissƒ. She then presented a further tribunal claim in July 2017 alleging unfair dismissal, race discrimination and victimisation.
Tribunal decisions
The February claims were heard by employment judge Bryant and two lay members, including a member called Ms Campbell. The claims were dismissed on the basis that they were out of time. The July claims, heard by employment judge Baron and two lay members, again including Ms Campbell, were also dismissed on the basis that they had no merit.
Dr Lyfar-Cissƒ appealed, arguing that the decisions in both tribunals were tainted by bias as Ms Campbell had been present as a lay member in both tribunals (although the claimant had made no objection at the time). This, she argued, had resulted in procedural impropriety such that she had been denied a fair hearing, given that the decision made by Ms Cashman was relevant to both claims.
Further, she argued that the Bryant tribunal had made a mistake in law when it decided that her claims of discrimination and victimisation were out of time. Instead, she argued that she was entitled to rely on an event after 10 August 2016 on the basis that it was linked to earlier events as part of a course of conduct extending over a period under section 123(3)(a) of the Equality Act 2010 and was accordingly within the primary time limit.
EAT decision
Dismissing the appeal, the EAT held that nothing that Ms Campbell had learned about the substance of the decision taken by Ms Cashman during the Bryant tribunal could conceivably have affected her decision. Likewise, there was nothing in the limited discussion of the Cashman decision during the Bryant tribunal that “would cause the fair minded and informed observer to consider that there was any real possibility of bias in Ms Campbell's consideration of the evidence about the Cashman decision that was led before the Baron Tribunal”.
With regard to the argument that her claim was not time-barred, the EAT held that the Bryant tribunal had considered the effect of section 123(3)(a) and had concluded that, even if it had taken earlier acts as part of an act extending over time, they would still be out of time as the last act on which she had relied was at the end of July 2016.