Employment Flash - 20th November 2009

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Bias is in the impression of the fair minded, not unduly sensitive, issue knowledgeable, not associated with a party, reasonable observer...

Ross v Micro Focus Ltd [2009] UKEAT 0304 09 SM

Claim for unfair dismissal and whistleblowing. Principal complaint of bias arose from behaviour of wing member during the course of a 30 minutes passage in the cross examination of M's first (and as it turned out, only) witness. The following were complained of: (a) smiling at M's Counsel; (b) laughing/smirking at questions put by R's Counsel; (c) raising eyebrows at a question by R's Counsel; (d) making huffing/sighing noises when R's Counsel was asking questions; (e) nodding head in agreement with the witnesses answers; (f) shaking head in disapproval of questions asked by R's Counsel; (g) wringing hands in exasperation; (h) crossing arms and sitting back in chair; (i) adopting an aggressive tone when questioning R; (j) in response to late disclosure by R stated "ridiculous, it's just too late". [If any of this reminds you of anyone this particular ET sat in Reading].

Counsel for R raised the issue with the ET itself and after a short adjournment the EJ stated that the wing member concerned apologised if in any way she had given the impression of having made up her mind; reiteration that a decision can only be made once all the evidence and submissions have been heard.

Porter v Magill test applied by EAT: would a fair minded informed observer, having considered the facts, conclude that there was a real possibility that the tribunal was biased; with the gloss from Helow v Sec State Home Department [2008] 1 WLR 2416: the observer is to be fair minded and not unduly sensitive. What is objectionable is a closed mind too early in a case. As the evidence progresses so to normally will the judicial thought processes so that gradually a decision will be arrived at by the time the evidence and submissions close. A strongly expressed view can still be a provisional view.

In dealing with this concatenation of judicial non-conformity the EAT accepted that there had been intemperate and discourteous behaviour but not evidence of a closed mind; there is a substantial gap between falling below the standard for professional judging and evidence of bias. However, the intemperance was generally related to what was seen as inappropriate questioning of the witness: the witness was the Chairman of the company, the winger had been the Chairman of a FTSE 250 company and the questions betrayed a lack of knowledge of what a Chairman's role is.

The EAT were attracted by R's (new) Counsel's list of rules for judicial conformity: (i) members should avoid overt signs of friendliness or hostility towards a party/representative; (ii) although necessary to be firm with a witness/representative, members should at all times act respectfully and courteously towards people appearing before them; (iii) members should keep to a minimum demonstrative reactions to evidence or submissions, save in the form of direct questions; (iv) members should avoid "asides" [stage whispers], comments and remarks, unless formulated as direct questions to the EJ, witness or representative.

Employment Team