Employment Appeal Tribunal refuses bias and jurisdiction appeals


Re: Lyfar-Cisse v Brighton And Sussex University Hospitals NHS Trust [2020] UKEAT 0100_19_2810

The appellant is a clinical biochemist who was employed by the respondent Trust from 1985 until her dismissal in June 2017. In February 2017 she presented a claim form to the Employment Tribunal (ET) alleging direct discrimination on the ground of race and victimisation. These claims were heard by the ET and judgment handed down in January 2019.  The ET dismissed her case, concluding that it did not have jurisdiction to hear the claims because they were time-barred.

In the interim, the appellant had presented a further claim form to the ET in July 2017 following her dismissal. This time she alleged unfair dismissal, discrimination on the ground of race, victimisation contrary to section 27 of the Equality Act 2010 and victimisation contrary to section 47B Employment Rights Act 1996. Judgment in this case was handed down in March 2019, holding that the dismissal of the appellant was fair, and that she had not been discriminated against or victimised.

The appellant appealed both decisions to the Employment Appeal Tribunal, submitting that they were each tainted by bias because the same lay member sat on both panels which resulted in procedural impropriety and denial of a fair hearing.  The appellant also submitted that the first claim was not time-barred.

By contrast, the respondents submitted that no issue of bias arose from the involvement of the same lay member on both panels but that, even if it did, the appellant waived any right to object on that ground. They further submitted that the Tribunal was correct to hold that her claims were time-barred.

HELD: Both appeals refused. In the particular circumstances of the two cases, a fair minded and informed observer would not see a real possibility of bias, nor was there actual unfairness to the appellant in the conduct of either case. Additionally, the tribunal did not err in holding that it did not have jurisdiction to determine her claims.

Thomas Kibling was involved in this case.