Tribunal: Judge was not biased
A solicitor who sacked a member of staff after she complained he had persistently harassed her while she was off sick has lost his appeal against an unfair dismissal ruling.
William Finlayson said Ashley McMahon had destroyed the employer/employee relationship by making a “serious allegation of criminal conduct”, and dismissed her with immediate effect.
The Employment Appeal Tribunal rejected [1] allegations of apparent bias against the judge at first instance, which Findlaysons Solicitors had sought to magnify by referring to his acting only for claimants when in practice.
Ms McMahon worked for the Scottish solicitor as a typist/receptionist for more than two years.
On 30 October 2017, a colleague told her that his wife, Joan Findlayson, who was the firm’s office administrator, had looked at Ms McMahon’s computer and noted that she had apparently been shopping on the internet during working hours.
The following day, Ms McMahon went off sick, self-certifying her absence for seven days on her doctor’s advice. The following week, at Mr Findlayson’s prompting, she produced a fit note from her GP and later another one, on the basis of a stress-related illness.
On 16 November, while she was still off, the solicitor invited Ms McMahon to a disciplinary meeting, at which “internet use during working hours”, time keeping, productivity and quality would be discussed.
The letter also said Mr Findlayson did not accept that she had been absent from work for legitimate reasons.
In response, Ms McMahon said she was not fit to attend the hearing, adding that “your persistent harassment has prolonged my illness giving me more stress”.
In light of what Mr Findlayson considered this accusation of criminal misconduct, he said: “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.”
Ms McMahon appealed the dismissal but Mr Findlayson, who was the decision-maker in the appeal. upheld his previous decision.
Employment Judge Rory McPherson found the dismissal unfair. He said that, but for the “persistent harassment” comment, Ms McMahon would not have been sacked, and yet Mr Findlayson did not give her an opportunity to explain her meaning before deciding to dismiss.
“There was no compelling reason for the respondent to have acted in such haste [as] the claimant was not scheduled to return to work until 19 December 2018.
“While it is not considered that there is a reasonable inference of an allegation of criminality, the respondent, in any event, failed to carry out any investigation, including questioning of the claimant as to the meaning of the phrase.”
He awarded damages of £16,000.
Many of the solicitor’s grounds of appeal were based on apparent judicial bias, put in the context of the fee-paid judge acting mainly for claimants in practice. Mr McPherson is head of the employment rights unit at claimant firm Thompsons in Scotland.
In the Employment Appeal Tribunal, Lord Fairley was referred to a video clip of Judge McPherson made in 2015 and which remains on the Thompsons’ website.
Lord Fairley recounted: “In the video, the judge makes comments about his firm acting mainly for people who ‘have challenges at work where they are being treated badly by their employers’…
“[He] refers to the fact that his firm does not represent employers: ‘We’re here to represent ordinary people who have difficult disputes with their employers.’”
While Mr Findlayson’s advocate accepted that the video was not, of itself, sufficient to give rise to a perception of bias, he argued that it was “relevant context to what happened at the hearing” and in combination with specific incidents met the test for apparent bias.
Lord Fairley disagreed, holding that “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”.
With or without reference to the video, he said the allegations of apparent bias “have no merit whatsoever”.
He added that criticisms of the judge’s approach to assessment of loss were “simply attempts to re-argue fact”.