Solicitor who dismissed receptionist after period of anxiety leave loses appeal against unfair dismissal decision

About this case:

• Citation:
  [2022] EAT 30
• Judgment:
  External link
• Court:
  UK Employment Appeal Tribunal
• Judge:
  Lord Fairley

The appellant, Mr W Finlayson (trading as Finlaysons) argued that there had been apparent bias in the proceedings, which were raised by Miss A McMahon after her dismissal in 2017, and that the employment judge had erred in awarding compensation to the respondent.

The appeal was heard by Lord Fairley. Mr A Ardrey, solicitor, appeared for the appellant and Mr E Mowat, solicitor, for the original claimant and respondent.

Persistent harassment

The respondent had worked for the appellant as a receptionist between August 2015 and November 2017. On 30 October 2017, the appellant’s wife, who also worked for him as an office administrator, told him that she had viewed the respondent’s work computer and noted that she had been shopping online during working hours. The following day, she commenced a period of sickness absence for anxiety-related issues.

Upon her return to work, the respondent was invited by the appellant via letter to attend a disciplinary meeting to discuss her productivity at work. The letter also stated that the appellant did not accept that she had been absent from work for legitimate reasons. After she indicated that she was not fit to attend the hearing on the specified date and accused the appellant of “persistent harassment”, the appellant wrote to her again to dismiss her from employment.

In his letter of 22 November 2017, the appellant stated that the respondent’s allegation was one of criminal conduct which destroyed their working relationship. He went on to say: “I cannot envisage how you can possibly ever come back to work for me now. In these circumstances I now consider that you have committed an act of gross misconduct warranting instant dismissal.” The respondent made an appeal against the decision, in which the appellant, acting as decision-maker, upheld his own previous decision to dismiss her.

It was averred by the appellant that the employment judge had acted irregularly during proceedings, especially in relation to the meaning of “persistent harassment” and the lodging of evidence from the appellant’s trainee Ms McKay. It was also submitted that the judge, who when not working as a fee-paid employment judge was a partner in a firm of solicitors who acted predominantly for claimants in employment disputes, and comments he had made in a video produced for the firm supported the appellant’s claim of bias.

Counsel for the respondent submitted that the test for apparent bias had not been met in this case. Each of the specific episodes founded upon by the appellant was, in context, legitimate case management, and the criticisms of the judge’s approach to compensation were illegitimate attempts to appeal issues of fact.

No merit whatsoever

In his decision, Lord Fairley said of the employment judge’s task in this case: “The Employment Judge struggled – ultimately without success – to limit the scope of the evidence and submissions to matters that were relevant. That is the context against which each of the particular criticisms of bias now made against him falls to be judged by the fair minded and informed observer.”

Turning to the judge’s interventions on the issue of harassment, he said: “The particular context that the fair minded and informed observer would have seen was of the Appellant requiring to rely upon a proposition that was, on the face of matters, surprising: viz, that the only possible interpretation of the expression ‘persistent harassment’ in the Claimant’s letter was that she was accusing him of the commission of a crime.”

He continued: “In those circumstances, the fair minded and informed observer would have concluded that it was plainly legitimate – and indeed necessary – for the Judge to explore and test the reasonableness of the Appellant’s belief on which his position on liability inevitably depended. It was also necessary for the Judge to try, in accordance with the over-riding objective, to confine the hearing to matters of relevance. That he sought to do both of those things was not an indicator of apparent bias.”

On Ms McKay’s evidence, Lord Fairley noted: “It is difficult to understand why any comments that the Judge may have made about the admissibility, relevance, credibility or weight which might be attached to Ms McKay’s evidence could reasonably be thought to be an attack on the honesty or integrity of the Appellant. It was also procedurally unusual for the Judge to allow the Appellant, whilst he was still on oath, to interrupt his evidence in order to confer with someone who he might intend to call as a supporting witness. None of this is, however, an indicator of apparent bias.”

He concluded: “Whilst criticisms can be made of certain aspects of the Judge’s management of the hearing, none comes close to forming any basis for a conclusion of apparent bias. On a careful and focussed examination of the hearing, with or without reference to the video, the Appellant’s allegations of apparent bias, whether considered individually or collectively, have no merit whatsoever. All of the Appellant’s criticisms of the Judge’s approach to assessment of loss are simply attempts to re-argue fact.”

The appeal was therefore refused.