Factual and Procedural Background
This appeal arises from a decision of the Stratford Employment Tribunal dated 1 November 2002, which upheld the Applicant's complaints of unfair dismissal and sex discrimination against the Respondent, Company A. The Respondent appeals not on the substantive findings but on the ground of apparent bias, contending that the Chairman of the Tribunal should not have sat on the case, rendering the decision unsound.
The background includes an earlier hearing on 15 June 2001 before the same Chairman involving two former employees of Company A who complained of unlawful deduction of wages. The Respondent was represented by a principal of Company A, referred to as Mr Reilly, who alleged that the Chairman made disparaging remarks about him and the firm during that hearing. This led Mr Reilly to instruct Counsel to represent the Respondent after lunch. The Tribunal awarded costs against the Respondent in that earlier case, describing Mr Reilly's conduct as vexatious and unreasonable.
Following the earlier hearing, Mr Reilly made formal complaints about the Chairman's conduct to the Regional Chairman and the Lord Chancellor's Department, alleging bias and inappropriate behaviour. No effective response was received, and no further pursuit of the complaint occurred.
The present case, brought by the Applicant against Company A, was listed for a 10-day hearing commencing 1 July 2002, with the same Chairman allocated to hear the matter. The Respondent objected to the Chairman sitting due to the prior allegations of bias. The Tribunal refused the recusal application, reasoning that the Chairman was only one of three members, that the complaint was not pursued earlier, and that the cost of delay to the Applicant was significant.
The Employment Appeal Tribunal heard full argument and reserved judgment, ultimately determining that the Chairman should have recused himself due to the real possibility of bias, thus undermining the Tribunal's decision.
Legal Issues Presented
- Whether the Chairman of the Employment Tribunal should have recused himself due to an appearance of bias arising from prior conduct and complaints.
- What is the appropriate test to apply when determining apparent bias in Employment Tribunal proceedings.
- Whether the presence of lay members on the Tribunal negates the risk of bias arising from the Chairman's involvement.
- The effect of delay and procedural timing on applications for recusal.
Arguments of the Parties
Appellant's Arguments
- The Chairman’s prior conduct during the 2001 hearing included disparaging remarks about the Respondent and its principal, Mr Reilly, undermining impartiality.
- The complaint made by Mr Reilly was genuine and corroborated by his subsequent formal complaints to the Regional Chairman and the Lord Chancellor’s Department.
- The Chairman’s refusal to recuse himself despite these circumstances created a real possibility of bias, which cannot be outweighed by considerations of delay or the presence of lay members.
- The Tribunal’s assurance of impartiality by the Chairman is insufficient given the insidious nature of bias.
- The recusal application should not be dismissed simply because it was not raised earlier; delay affects costs but not the substance of bias concerns.
Appellee's Arguments
- The substantive findings of the Tribunal were not challenged, implying acceptance of the Chairman’s impartiality.
- The costs order and critical comments about Mr Reilly’s conduct were justified and do not alone establish bias.
- The objection to the Chairman sitting was raised late, on the first day of the hearing, and not at interlocutory stages when the Chairman was allocated.
- The presence of two lay members alongside the Chairman provided a safeguard against any potential bias.
- The Chairman’s denial of making disparaging remarks and his assurance of impartiality should be given weight.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Porter v Magill [2002] 2 AC 357 |
Test for apparent bias: whether a fair-minded and informed observer would consider there is a real possibility of bias. |
Adopted as the core test for assessing the Chairman’s alleged bias in the Employment Tribunal context. |
| Lawal v Northern Spirit Ltd [2003] IRLR 538 |
Modification of the bias test to align with ECHR Article 6 requirements and explanation of the informed observer standard. |
Confirmed the test and described the characteristics of the informed observer, guiding the assessment of bias in this appeal. |
| R v Gough [1993] AC 646 |
Original common law test for bias, modified by Porter v Magill and Lawal. |
Referenced as the predecessor test, showing the evolution of bias jurisprudence. |
| Locabail (UK) Ltd v Bayfield Properties Ltd [2000] IRLR 96 |
Guidance on factors relevant to real danger of bias and the importance of case-specific assessment. |
Applied to emphasize that the presence of lay members does not negate bias risk and to caution against over-reliance on judicial assurances. |
| Lodwick v London Borough of Southwark [2004] EWCA Civ 306 |
Reaffirmed the Porter v Magill test and discussed the role of the Employment Appeal Tribunal in reviewing recusal decisions. |
Used to assess the Tribunal’s refusal to recuse and to highlight that adverse comments in prior cases do not automatically require recusal without more. |
| Kingston upon Hull County Council v Dunachie (No. 3) [2003] IRLR 843 |
Clarification on costs awards in Employment Tribunal proceedings, especially concerning litigants in person. |
Referenced to show that the costs awarded in the earlier case were unusual and made on a notional basis, contributing to the appearance of bias. |
| Taylor and Another v Lawrence and Another [2003] QB 528 |
Definition of the informed observer as aware of legal culture but neither complacent nor unduly suspicious. |
Informed the characterization of the observer applying the bias test in this appeal. |
| Vakauta v Kelly (1989) 167 CLR 568 |
Examples of circumstances that may give rise to bias, including prior adverse comments by a judge. |
Supported the analysis of whether prior adverse comments by the Chairman could affect impartiality. |
| Johnson v Johnson (2000) 200 CLR 488 |
Consideration of the attitude of the informed observer towards judicial impartiality standards. |
Helped define the balanced approach of the informed observer in the bias test. |
Court's Reasoning and Analysis
The court began by affirming the applicable legal test for apparent bias as set out in Porter v Magill and Lawal: whether a fair-minded and informed observer would perceive a real possibility of bias. This test reflects a shift from the traditional common law approach to align with Article 6 of the European Convention on Human Rights, emphasizing public confidence in judicial impartiality.
The court examined the factual background, focusing on the prior hearing where Mr Reilly alleged disparaging remarks by the Chairman. Although the Chairman denied these remarks, the court noted the insidious nature of bias and held that the Chairman’s denial carried little weight. The fact that Mr Reilly had made formal complaints, and the Tribunal’s robust and critical costs order against him, reinforced the appearance of bias.
The court rejected the Tribunal’s reasoning that the presence of two lay members could counterbalance any bias by the Chairman, emphasizing the presiding member's influential role. It also dismissed reliance on assurances of impartiality from the Chairman and the timing of the recusal application as justifications for refusal.
The court found a close factual connection between the prior hearing and the present case, increasing the risk of bias. The Tribunal’s failure to recuse the Chairman was held to have undermined the fairness of the proceedings. The court emphasized that the risk of bias could not be outweighed by concerns about delay or procedural convenience.
Accordingly, the court concluded that the fair-minded and informed observer would perceive a real possibility of bias, necessitating recusal and a rehearing before a differently constituted Tribunal.
Holding and Implications
The Employment Appeal Tribunal ALLOWED the appeal on the ground of apparent bias.
The Tribunal's decision was set aside and the matter was remitted to a freshly constituted Employment Tribunal with a different Chairman and lay members to rehear the case. The court emphasized that the failure to recuse the Chairman who was subject to a real possibility of bias rendered the original decision unsound.
The direct effect is that the parties must undergo a new hearing before an impartial Tribunal. No new legal precedent was established beyond the application of established principles concerning apparent bias and recusal in Employment Tribunal proceedings.