Bias in appeals

Interesting EAT decision (Scottish employer) on bias in appeals, an issue that comes up often in the smaller employers we deal with.

In Watson v University of Strathclyde EATS/0021/10 ( no relative!) the pursuer worked as a publications officer in the University of Strathclyde. Mr Taylor was the director of marketing and Dr West was the secretary to the University who appointed Mr Taylor. In 2005, Mr Taylor was convicted of a breach of the peace and offered to resign. Dr West decided that this was not required  as this was a personal matter and did not impact on his job.
Before this incident, the pursuer had a history of concern about Mr Taylor's behaviour, which she considered violent and aggressive. This conviction naturally highlighted this concern. Problems with their relationship continued and she submitted a grievance alleging inappropriate behaviour and autocratic management that was rejected. She felt Dr West had a conflict of interest because of his support for Taylor. She then refused to attend an appeal panel because Dr West was a member and subsequently resigned  claiming constructive dismissal.

The ET concluded that Dr West's membership of the appeal panel was not a fundamental breach of contract. However, the EAT found that, for there to be a fair hearing, it must be free not only from actual bias but from apparent bias, and that this applied equally to any hearing that forms part of a grievance process. Any reasonable employer would have considered the claimant's reasonable concern that there was bias and that it would not be fair to her to include Dr West in the appeal panel.

Whilst it is obvious that a person who is the subject of a grievance should not be involved in the hearing of that grievance, employers also need to consider the position of other members of staff who are very closely associated with the subject of the grievance. The EAT is not suggesting that an employer setting up a grievance appeal panel is routinely required to consider specifically whether or not there is "apparent bias" in the panel. However, any reasonable employer is required to have regard to the need to afford an employee a fair hearing of their grievance throughout, including at the appeal stage. It was key in this case that the claimant had raised an allegation of bias.