Employment lawBy Martin Edwards, Mace & Jones, LiverpoolAllegation of biasFacey v Midas Retail Security and Whitgift Centre Management (2000) IRLR 812The Employment Appeal Tribunal (EAT) has set out important guidelines...Allegation of biasFacey v Midas Retail Security and Whitgift Centre Management (2000) IRLR 812The Employment Appeal Tribunal (EAT) has set out important guidelines on the approach to be followed in a case where there is a sharp conflict of primary fact, the resolution of which will play a material part in an informed decision as to whether an employment tribunal or any member of it was biased or prejudiced.

The appropriate course for the EAT to follow is:l the steps outlined in the EAT practice direction paragraph 9(3) should be taken and unsworn comments may then be taken by the chairman and, if necessary, other members of the employment tribunal under paragraph 9(4);l the EAT may next require sworn witness statements (or further ones) from persons not including members of the tribunal;l the EAT may then invite (but cannot require) the chairman or other members of the tribunal to provide sworn written evidence-in-chief as to primary fact;l it will in a suitable case be possible, after such an invitation, for adverse inferences to be drawn from a members failure without good reason to provide sworn written evidence-in-chief of primary fact.l if, notwithstanding the material already collected, including whatever has been collected by way of disclosure orders, the EAT is of the view that such cross-examination will materially assist it, it may require the attendance for oral cross-examination of deponents, but not including the chairman or other members of the tribunal;l the EAT is not to hear a members cross-examination, whether it be as to primary or secondary fact, even where the member in question has agreed to attend;l the EAT is not to require the attendance of a member of a tribunal for cross-examination nor to require disclosure of documents from him or her; andl the EAT is not to draw adverse inference from a members failure to attend for cross-examination.At each step the EAT can move to the next only if in its view a sufficiently informed decision cannot be arrived at on the balance of probabilities without the taking of a further step or steps.

Given the expense in time and money of directions hearings and of the production and giving of evidence, the EAT should carefully scrutinise whether a further step or steps are truly needed.

Time limitsRelaxion Group plc v Rhys-Harper (2000) IRLR 810The EAT ruled that an applicant cannot bring a complaint under section 6(2) Sex Discrimination Act 1975 in respect of an act of discrimination that took place after employment has ended, other than a claim of victimisation.

The effect of Coote v Granada Hospitality Ltd (1998) IRLR 656, (1999) IRLR 452, is not to take all claims under the 1975 Act out of the ambit of the reasoning of the Court of Appeal in Adekeye v The Post Office (No.

2) (1997) IRLR 105, that is to say that discrimination legislation protects only those whose employment continues at the time of the act of discrimination.

In cases other than those of victimisation under section 4 of the 1975 Act, Adekeye must be followed.

In this case, the majority of an employment tribunal misdirected themselves in finding that the effective date of termination of the applicants employment was the date her appeal against dismissal was rejected, rather than the date on which her notice of dismissal expired.

Accordingly, her claim that a complaint of sex discrimination that she brought after her dismissal was not investigated adequately could not be heard unless it could be treated as a free-standing claim.