Factual and Procedural Background
The Appellant, a former employee of the Respondent, brought proceedings under the Race Relations Act 1976 alleging racial discrimination after the Respondent declined to provide a reference following termination of employment. The Employment Tribunal dismissed the claim, holding (in line with an existing Court of Appeal authority) that the Act protected only current employees.
The Appellant appealed to the Employment Appeal Tribunal (“EAT”). During that appeal a Queen’s Counsel (“the Recorder”) appeared for one party. The Recorder had previously sat as a part-time judge of the EAT with one of the two lay (“wing”) members listed for the hearing. The Appellant objected, contending that the composition of the tribunal infringed the common-law rule against bias and Article 6 of the European Convention on Human Rights.
The EAT, now chaired by Judge Lindsay and re-constituted with two different wing members, dismissed both the procedural objection and the substantive appeal. The Court of Appeal, by majority, likewise rejected the procedural objection. The Appellant obtained leave to appeal to the House of Lords, where the Respondent took no part. The appeal was argued by counsel acting as amicus curiae for the Appellant and by counsel for The Department, which intervened to support the existing practice.
Legal Issues Presented
- Whether a hearing before the EAT is compatible with Article 6 of the European Convention on Human Rights and the common-law test of apparent bias when a Queen’s Counsel who has previously sat as a part-time EAT judge appears as advocate before lay members with whom he or she has sat.
- Whether the systemic practice permitting such appearances should be discontinued.
Arguments of the Parties
Appellant’s / Amicus Arguments
- The presence of a Recorder-advocate who had earlier sat judicially with wing members creates, for a fair-minded and informed observer, a real possibility of subconscious bias contrary to the Porter v Magill standard.
- Comparable restrictions already prevent part-time Employment Tribunal chairmen and Recorders in criminal courts from appearing before lay participants with whom they have previously served; the same principle should govern the EAT.
- Public confidence in the administration of justice demands that the practice be prohibited, regardless of any evidence of actual bias.
The Department’s Arguments
- Wing members are experienced individuals capable of distinguishing between a Recorder’s neutral judicial role and his or her partisan role as counsel; any risk of bias is speculative and remote.
- Discontinuing the practice could deter leading employment specialists from accepting part-time judicial appointments, to the detriment of the EAT.
- The existing arrangements have functioned without criticism until the present challenge and should be upheld.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Porter v Magill [2002] 2 AC 357 |
Established the test: whether a fair-minded and informed observer would conclude there is a real possibility of bias. |
Adopted as the governing test for deciding the Recorder objection. |
| In re Medicaments (No 2) [2001] 1 WLR 700 |
Modernised the common-law bias test to align with Strasbourg jurisprudence. |
Cited to show the evolution of the bias test subsequently approved in Porter v Magill. |
| R v Gough [1993] AC 646 |
Earlier formulation of the bias test. |
Referred to illustrate how the test was modified by later authorities. |
| Belilos v Switzerland (1988) 10 EHRR 466 |
Emphasised the need for public confidence in tribunals. |
Used in support of the importance of perceived impartiality. |
| Wettstein v Switzerland (App No 33958/96) |
Reiterated Article 6 impartiality requirements. |
Cited to align domestic analysis with Strasbourg standards. |
| Johnson v Johnson (2000) 200 CLR 488 |
Described the balanced perspective of the reasonable observer. |
Quoted to define the characteristics of the hypothetical observer. |
| R v Hoyland-Thornton [1984] Crim LR 561 |
Held that a Recorder must not appear before jurors he previously directed. |
Analogised as a precedent showing the justice system’s intolerance of similar risks of bias. |
| Adekeye v Post Office (No 2) [1997] IRLR 105 |
Authority that the Race Relations Act 1976 protects only current employees. |
Formed the basis of the Employment Tribunal’s dismissal of the substantive claim. |
| D’Souza v London Borough of Lambeth [2003] UKHL 33 |
Subsequent House of Lords decision on the same statutory point. |
Noted as potentially determinative of the substantive discrimination issue on remittal. |
| Taylor v Lawrence [2003] QB 528 |
Observed that an informed observer is aware of legal culture yet not complacent. |
Referred to when assessing contemporary public expectations of impartiality. |
Court's Reasoning and Analysis
The House began by identifying the sole material circumstance: a Queen’s Counsel, also a part-time EAT judge, appeared before lay members with whom he had previously sat. Applying the Porter v Magill test, the Court considered whether a fair-minded and informed observer would think there was a real possibility of subconscious bias.
Three analogies informed the analysis:
- Statutory and ethical restrictions preventing Recorders who are elected officials from sitting in their own constituencies or councils.
- Criminal-court practice barring a Recorder from appearing as counsel before jurors over whom he had previously presided, a breach of which led to the conviction being quashed in R v Hoyland-Thornton.
- Terms of appointment that forbid part-time Employment Tribunal chairmen from appearing as advocates before tribunals in the same region, a rule viewed by the Court as closely analogous and even more compelling in the EAT context because the EAT deals exclusively with points of law.
Taking these analogies together, the Court held that the public would likely perceive an enhanced degree of authority, collegiality and influence flowing from the prior judicial association between the Recorder and wing members. This perception risked undermining confidence in the tribunal’s impartiality. While acknowledging that EAT lay members are highly experienced, the House emphasised that the test is one of appearance, not actual bias. Evolving public expectations, coupled with the systemic nature of the practice, required its cessation.
The majority judgments below (Judge Phillips MR and Judge Mummery) were respectfully rejected. The House preferred the dissenting analysis of Judge Pill, concluding that public confidence would be diminished unless the practice were changed.
Holding and Implications
APPEAL ALLOWED ON THE RECORDER OBJECTION; MATTER REMITTED.
The House declared that the Appellant was entitled to succeed on the procedural objection and remitted the case to the Court of Appeal to consider the substantive discrimination claim in light of D’Souza. It further directed that part-time EAT judges must no longer appear as advocates before panels that include lay members with whom they have previously sat. The decision aligns EAT practice with that of Employment Tribunals and criminal courts, reinforcing public confidence but setting no new test beyond confirming the Porter v Magill standard.