It is a basic tenet of the tribunal system that all parties to a complaint are entitled to a fair hearing.
In Rolec (Electrical and Mechanical Services) Ltd v Georgiou, the Employment Appeal Tribunal (EAT) held that because the tribunal judge had made a number of questionable interventions, the decision had to be set aside so that the company could get a fair hearing in another tribunal.
Basic facts
Ms Georgiou started working as the company’s office administrator and alarms/CCTV supervisor in February 2011. In March 2018, the company’s managing director, Mr Barrett, told her that he intended to sell the alarms business but gave no indication as to when it might happen nor what impact it might have on her position.
Nothing more was said to her until the Christmas party on 7 December 2018 when one of the directors, who had had too much to drink, told her that she was sacked. When she objected to the way he had spoken to her, another director who was also drunk raised his hand near her face and said: “You’re not listening”. Both of them apologised to her the following day.
On 22 January 2019, Mr Barrett told her that the sale of the alarms business was due to go ahead on 1 March and that he would discuss the implications of it for her at a meeting on 25 January. She waited anxiously all day for him to contact her but when she heard nothing, she went to his office at 3.40 pm and asked if they could have their meeting, only to be told that he was too busy and that it would have to wait until Monday.
Ms Georgiou handed in her notice on 28 January, claiming constructive unfair dismissal.
Tribunal decision
The tribunal judge held that by cancelling the January meeting, the managing directory had acted in breach of the implied contractual term of trust and confidence as Ms Georgiou had been “on tenterhooks” about her future since being told at the Christmas party that she was going to be sacked.
He then went on to hold that even if cancelling the meeting was not in itself a breach of the term, it formed part of a course of conduct that, taken cumulatively, amounted to a breach and that she had, therefore, been constructively dismissed.
The company appealed, arguing that the judge had intervened during the hearing in a way that suggested he was biased against them.
EAT decision
The EAT held that the question to answer was whether there had been “a real danger of injustice” if the judge had indeed been biased. As “real” meant not without substance, the EAT held that a “real danger” involved “a real risk or a real possibility” of danger.
Adopting the “neutral position of the informed impartial observer”, the EAT judge rejected most of the objections that the company had made about the tribunal judge but accepted that there were at least three occasions during the relatively short hearing when he had given the appearance of having taken a side, thereby denying the company a fair hearing.
This was not limited to a particular part of the case but was apparent in the interventions made generally by the judge when the company’s witnesses were giving evidence. Accepting that the company might be wrong to see each of the judge's interventions as evidencing apparent bias, the EAT acknowledged that once the judge’s behaviour had crossed a line, indicating a closed mind, “every intervention is then viewed with suspicion, even if only in hindsight”.
It, therefore, set the judgment aside and remitted the matter to a new tribunal.
Comment
This is an unusual case in which the EAT intervened not because of an error of fact or law by the tribunal, but because of the conduct of the tribunal judge during proceedings. Whilst the circumstances are somewhat extreme, lawyers should be mindful of anything going beyond natural perceived bias on the part of the judge.