In order to succeed in a claim that a tribunal has been biased against a party to a case, appellants have to be able to show that a “fair minded and informed observer” would take the same view. In Finlayson t/a Finlaysons v McMahon, the Employment Appeal Tribunal (EAT) held that Mr Finlayson’s allegations of bias had no merit whatsoever and were just attempts to re-argue points of fact.
Basic facts
Ms McMahon worked as a typist/receptionist for Mr Finlayson (a sole practitioner solicitor) between August 2015 and November 2017. He also employed his wife, Joan Finlayson, as an office administrator. At the end of October 2017, Ms Finlayson allegedly noted that Ms McMahon had been using her computer for shopping during working hours, although she did not mention it to her. Ms McMahon went on sick leave the next day due to a “stress related illness”.
On 16 November, Mr Finlayson asked Ms McMahon to attend a disciplinary meeting on the 21st to discuss “internet use during working hours”, among other things. She replied saying that she was not fit to attend partly because of “persistent harassment” from Mr Finlayson. She was promptly dismissed on the basis that her accusation of harassment constituted an allegation of criminal conduct amounting to gross misconduct. She claimed unfair dismissal.
Tribunal decision
The question for the tribunal was whether, having carried out a reasonable investigation, Mr Finlayson (i) genuinely believed that Ms McMahon had accused him of criminal conduct; (ii) held that belief on reasonable grounds; and (iii) reacted to that belief by summarily dismissing her in a way which fell within the band of reasonable responses.
Upholding Ms McMahon’s claim, the tribunal judge decided that “no employer could have formed a reasonable belief that the statement in the context of the letter and the preceding communications amounted to an allegation of criminality”. He ordered Mr Finlayson to pay Ms McMahon a basic award of £524 and a compensatory award of £15,506.14.
Mr Finlayson appealed on multiple grounds, including an argument that the judge was biased against him. This included a reference to a short video clip on the website of the firm of solicitors where the judge worked as a partner, in which he stated that he mainly represented employees who are treated badly by their employers rather than for “powerful corporations”. Mr Finlayson also alleged that the judge was biased when he refused to allow Mr Finlayson’s trainee to appear as a witness on his behalf, had referred to cases that were not cited by either party, and had independently investigated the scope of Income Support.
EAT decision
Applying the test for apparent bias set out in Porter v Magill, the question for the EAT was whether a fair minded and informed observer (someone who was not complacent but was also not unduly sensitive or suspicious) would have concluded that there was a real possibility that this tribunal was biased.
It decided that, on a careful and focussed examination of the hearing, with or without reference to the video, Mr Finlayson’s allegations of apparent bias had no merit whatsoever but were simply attempts to re-argue points of fact. For instance, it found, as a fact, that Mr Finlayson himself had ultimately decided not to call his trainee as a witness and that, although the judge’s self-directions were overly long in places, he had correctly applied the relevant sections of the law.
Whilst accepting that there were some valid criticisms that could be made of certain aspects of the judge’s management of the hearing, the EAT concluded that they could not satisfy the standard set out in Porter. It therefore rejected the appeal.