Lawal v Northern Spirit Ltd.

Factual and Procedural Background

The appeal concerns an objection ("the Recorder objection") raised by the Appellant, acting in person, regarding the potential bias arising when a part-time judge of the Employment Appeal Tribunal (EAT) appears as an advocate before the Appeal Tribunal chaired by another judge sitting with two lay members, one or both of whom have previously sat with the part-time judge. The original proceedings began on 7 October 1999 when the Appellant filed a complaint of racially motivated post-employment reference against the Respondent, alleging race discrimination and victimisation due to the omission of references requested after termination of employment. The Employment Tribunal held it lacked jurisdiction under the Race Relations Act 1976 to hear claims of discrimination post-termination, following precedent. The Appellant appealed this jurisdictional ruling, which was dismissed by the Employment Appeal Tribunal, but permission to appeal was granted and adjourned pending the House of Lords' decision on related cases. The Recorder objection was expedited and heard separately.

Legal Issues Presented

1. Whether a real possibility of bias exists when a part-time judge of the Employment Appeal Tribunal acts as an advocate before the Appeal Tribunal, chaired by another judge sitting with lay members who have previously sat with that part-time judge.

Arguments of the Parties

Appellant's Arguments

• The presence of a lay member who previously sat with the part-time judge acting as advocate creates a violation of the Appellant’s right to an impartial tribunal under Article 6(1) of the European Convention on Human Rights and the common law right to an unbiased judge.
• Lay members, as colleagues of the part-time judges, might be subconsciously influenced by a sense of collegiate loyalty and the authoritative legal role of the part-time judge.
• There is a real possibility of bias without safeguards such as a "cooling off period" between the part-time judge’s judicial and advocate roles.

Lord Chancellor's Department's Arguments

• Lay members possess native wit and intelligence sufficient to distinguish between the part-time judge’s role as a judge and as an advocate.
• There is no hierarchical or institutional link that objectively raises concern about bias given the high calibre and independence of the lay members.
• The presence of another judge during hearings where the part-time judge appears as advocate provides an additional safeguard.
• The Employment Tribunal’s restrictions on part-time chairmen acting as advocates in their region are precautionary and not determinative of the issue in the Appeal Tribunal context.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Post Office v. Adekeye (No 2) [1997] IRLR 105	Limits employer liability for race discrimination claims post-termination.	Followed by Employment Tribunal in jurisdiction ruling.
D'Souza v. London Borough of Lambeth [2001] EWCA Civ 794	Confirmed limits on jurisdiction for post-termination discrimination claims.	Cited by Employment Appeal Tribunal in rejecting adjournment and dismissing jurisdiction appeal.
In re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700	Test for real possibility of bias to maintain public confidence in justice.	Adopted as the objective test for bias applied in this case.
Magill v. Porter & Magill v. Weeks [2002] 2 WLR 37	Defines test for judicial bias: whether a fair-minded and informed observer would conclude a real possibility of bias.	Applied as the controlling legal standard for the bias issue.
Scanfuture UK Limited v. Secretary of State for Trade and Industry [2001] IRLR 416	Emphasizes importance of reasonable inquiries by the observer before concluding bias.	Used to support the approach that the fair-minded observer would seek explanations before concluding bias.
Sengupta v. Holmes [2002] EWCA Civ 1104	Attributes of the fair-minded and informed observer including knowledge of legal culture.	Supported the view of the observer’s informed perspective regarding tribunal impartiality.
Sramek v. Austria (1984) 7 EHRR 351	Legitimate doubts about impartiality arise when tribunal members have hierarchical or institutional links with parties.	Distinguished as facts in current case do not involve such links.
Wettstein v. Switzerland (Application No. 33958/96, 2000)	Even appearances of bias may undermine public confidence.	Referenced for the importance of public confidence but distinguished on facts.
Piersack v. Belgium (1982) 5 EHRR 169	Prior role as prosecutor not alone sufficient to establish bias.	Used to show that prior professional roles do not automatically create bias.
Belilos v. Switzerland (1988) 10 EHRR 466	Conflicting loyalties can undermine tribunal impartiality.	Distinguished as no such conflicting loyalties found here.
R. (Chief Constable of Lancashire Constabulary) v. Crown Court at Preston [2002] 1 WLR 1332	Institutional or organisational ties may affect impartiality.	Found not to apply to lay members in this case.
Boyd & Ors v The Army Prosecuting Authority & Ors [2002] UKHL 31	Detailed safeguards required to avoid bias where junior officers sit as members of courts-martial.	Not implementable in current situation; cited to contrast safeguards.
R v Sussex Justices; ex parte McCarthy [1924] 1 KB 256	Justice must not only be done but be seen to be done.	Foundation for principle of appearance of impartiality.
Porter v Magill [2002] 2 WLR 37	Close relationship between independence and impartiality; objective test for bias.	Applied as guiding authority on impartiality and bias.
Findlay v United Kingdom [1997] 24 EHRR 221	Two aspects of impartiality: subjective freedom from bias and objective impartiality.	Informed the dual aspect test applied by the court.
Johnson (2002) 174 ALR 655	Attributes of the fair-minded and informed observer; importance of public confidence.	Supported the approach to the observer’s perspective.
Southern Equities Corporation Ltd v Bond [2000] SASC 450	Need to avoid attributing judicial qualities to lay observers.	Reinforced objectivity and reasonableness of the observer.
Vakauta v Kelly (1988) 13 NSWLR 502	Judicial qualities not to be assumed in the fair-minded lay observer.	Supported the objective test for bias.
Carmichael v National Power plc 2000 IRLR 43	Employment Appeal Tribunal has lay majority despite jurisdiction on points of law.	Explained the tribunal’s unique composition relevant to the case.
Davies v Presbyterian Church of Wales 1986 IRLR 194	Rule on construction of documents as a question of law.	Referenced to explain the EAT’s legal function.

Court's Reasoning and Analysis

The court began by identifying the relevant facts that a fair-minded and informed observer would consider before concluding on the possibility of bias. It noted the unique structure of the Employment Appeal Tribunal, where lay members with expertise in industrial relations sit alongside legally qualified judges, and that lay members have equal voting rights and may dissent from judges’ views, demonstrating their independence.

The court acknowledged the Appellant's concern that lay members might be subconsciously influenced by a part-time judge who later appears as an advocate before them, due to a sense of collegiate loyalty and the judge’s authoritative role on legal matters. However, the court emphasized that the fair-minded observer would make reasonable inquiries and consider the safeguards in place, including the selection and appointment process for lay members, their expected impartiality, and their ability to distinguish between judicial and advocacy roles.

The court examined Strasbourg case law on bias, noting that violations of Article 6 typically involve specific hierarchical or institutional links between tribunal members and parties, which were absent here. The objection was deemed speculative and based on an unfounded assumption that lay members cannot differentiate between the roles of judge and advocate.

While the Employment Tribunal places restrictions on part-time chairmen to avoid allegations of bias, the court found that these precautions do not determine the existence of a real possibility of bias in the Employment Appeal Tribunal context. The court concluded that the fair-minded observer, informed of the tribunal’s procedures and the professional qualities of lay members, would not perceive a real possibility of bias arising from a part-time judge appearing as advocate before lay members with whom they had sat.

However, one judge dissented, reasoning that the collegiate loyalty and trust developed between part-time judges and lay members during joint sittings would likely undermine public confidence if the judge subsequently appeared as an advocate before those lay members. This judge emphasized the importance of public confidence and the appearance of impartiality, concluding that the procedure diminishes public confidence and creates a legitimate doubt about impartiality.

Another judge concurred with the majority, stressing the absence of any authority supporting a finding of bias on these facts and expressing confidence in lay members' ability to evaluate arguments objectively, regardless of prior judicial collegiality.

Holding and Implications

The appeal on the Recorder objection was dismissed. The court held that there is no real possibility of bias arising from a part-time judge appearing as an advocate before lay members who have previously sat with that judge. The court emphasized the independence and impartiality of lay members and the safeguards inherent in the tribunal’s appointment and operational procedures.

The decision leaves the jurisdictional appeal pending the House of Lords’ ruling on related cases. No new precedent was created concerning the jurisdiction issue.

The ruling affirms that the existing arrangements for part-time judges and lay members in the Employment Appeal Tribunal do not, on their own, undermine public confidence in the administration of justice. The court did not adopt proposals for a "cooling off period" or other procedural safeguards but recognized the importance of the appearance of impartiality and public confidence as guiding principles in judicial conduct.