Dealing with allegations of tribunal bias

When and how is it appropriate to argue bias on the part of an Employment Judge or Tribunal? Jonathan Gidney looks at this important issue and explains how to defend the allegation if it is made.

Employment Tribunal advocates will be familiar with the interventions of Employment Judges during the course of a case. On most occasions such interventions are appropriate and balanced, but what of those few occasions when it seems the Judge or the Tribunal has crossed the line? When is it appropriate to raise the issue of bias? If it is raised by an opponent in the hearing or as a ground of appeal, what is the appropriate response?

It is of the utmost importance that judges should be independent and impartial in order to preserve public confidence in the administration of justice as recognised by Article 6 of the European Convention on Human Rights. This principle is keenly felt in the Employment Tribunals. The relative informality of the Tribunal system is one if its virtues, with a much wider range of advocates able to represent the interests of the parties.

The value of this informality, and the Judge’s practice of intervening has been recognised as a true benefit, as Mr Justice Peter Gibson observed in Peter Simpler & Co Ltd v Cooke: “there should be no underestimation of the value … of the dialogue that frequently takes place between the … Tribunal and a party or his representative. No doubt should be cast on the right of the Tribunal, as master of its own procedure, to seek to control prolixity and irrelevancies.”

At one end of the spectrum there are occasions when representatives may feel that the Tribunal, in exercising its right ‘to control prolixity and irrelevancies’ has over stepped the mark and has appeared to be biased against them. At the other end, an allegation of bias can be the last attempt of a desperate litigant to salvage a case that is doomed to fail.

As Rimer J. observed in Hackney v Sagnia, “allegations of bias against employment tribunals are raised as grounds of appeal to this tribunal with what appears to be increasing frequency … which on analysis commonly amounts to no more than the deployment of the fallacious proposition that: (i) I ought to have won; (ii) I lost; (iii) therefore the tribunal was biased.”

There are two types of bias: actual and apparent. Actual bias is rare and requires establishing that the Judge has an actual interest in one of the parties. A celebrated case of actual bias was R v Bow Street Metropolitan Magistrate, ex parte Augusto Pinochet, Amnesty International & Ors Intervening in which Pinochet challenged a House of Lords determination that he did not have immunity from extradition on the grounds that one of the Law Lords was an unpaid director of Amnesty International, which had intervened in the proceedings.

Judicial guidance on actual and apparent bias was given by Elias P. in Hamilton v GMB (Northern Area). The claimant, a GMB union shop steward, had been disciplined for encouraging members to seek full back pay in equal pay litigation, against the GMB’s policy of compromising back pay claims. The Tribunal union lay member had been instrumental in drafting a similar policy for UNISON. The EAT held that there was a good argument of apparent bias on the part of the lay union member as a result. The following principles emerged:

• Where the judge has an interest in the outcome of any litigation then the disqualification is automatic. The rationale of the rule is that a man cannot be a judge in his own cause and therefore it may extend beyond purely financial or economic considerations
• That justice must be seen to be done
• The basic test to be applied is this: whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased
• Accordingly, the court must first ascertain all the relevant circumstances which have a bearing on the allegation of bias; and then assess that information as would a fair-minded and informed observer
• In determining the relevant circumstances, regard must be had to the judge's actual knowledge of the conflict of interest which is said objectively to give rise to the potential bias
• Where there is a real possibility of bias but that is not appreciated until sometime into the course of the trial, the fact that it would be extremely inefficient in terms of time and cost to abort the trial at that stage is strictly irrelevant, and
• The possibility of bias can be waived but only in circumstances where the party waiving it is aware of all the material facts and of the consequences of the choice to him, and has been given a fair opportunity to reach an un-pressured decision.

When is it appropriate to assert bias? There are three possibilities. The first is a recusal application made before the Employment Tribunal by the party alleging bias against it. Waller LJ set out the relevant principles to be considered at such a recusal application in Ansar v Lloyds TSB Bank Plc & Ors:

• If an objection of bias is then made, it will be the duty of the Judge to consider the objection and exercise his judgment upon it. He would be as wrong to yield to a tenuous or frivolous objection as he would to ignore an objection of substance
• It is important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that they will have their case tried by someone thought to be more likely to decide the case in their favour
• The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection
• Courts and tribunals do need to have broad backs, especially in a time when some litigants and their representatives are well aware that to provoke actual or ostensible bias against them can achieve what an application for adjournment cannot
• In any case where there is real ground for doubt, that doubt should be resolved in favour of recusal
• Whilst recognising that each case must be carefully considered on its own facts, a real danger of bias might well be thought to arise if:
• there were personal friendship or animosity between the judge and any member of the public involved in the case, or
• if the judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case, or
• if, in a case where the credibility of any individual were an issue to be decided by the judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person’s evidence with an open mind on any later occasion, or
• if on any question at issue in the proceedings before him the judge had expressed views in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind, or
• if, for any other reason, there were real ground for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues before him.

A party seeking a recusal will need a clear evidence of actual bias or a very good note of the circumstances leading to an allegation of apparent bias (this is easier said than done, due to the often ‘heat of moment’ nature in which exchanges capable of sustaining a bias allegation are sometimes made). So, for example, if an application for disclosure or new witness evidence is rejected in terms that might be considered to be ‘over the top’ an application could be made at that point or at the beginning of the following day. Where bias can be asserted at the outset of a case (if, for example, unduly adverse comments were made by the same Judge at a CMD or if the Judge is personally known to a party) the application should be made at the outset. The application would need to cover the principles set out above. If the application is made out, the cost and inconvenience of restarting afresh are irrelevant.

In resisting the application, the other side need do little more than expound the differences between the allegations made and the sort of evidence needed to sustain apparent bias (set out above). The party resisting the application is likely to benefit from the Tribunal’s natural inclination to proceed although the defence must meet the allegations of bias rather then focusing on the costs of starting again.

The second possibility is a review application after judgment. The same principles set out above will apply. The third possibility is before the EAT. Appellants presenting Notice’s of Appeal which raise bias must proceed with caution. Section 11 of the Practice Direction (Employment Appeal Tribunal Procedure) 2008 specifically puts such Appellants on notice that unsuccessful bias applications are likely to face a costs order. If the Notice survives the sift, it is likely to be returned with directions requiring a sworn affidavit of the evidence used to support the allegations of bias, to which both the Respondent and the Judge and lay members will be able to respond. Directions will also invite the parties to agree a note of the hearing (again, good ‘heat of the moment’ notes are essential) and in the absence of an agreed note, the EAT may order the production of the Chairman’s note of evidence. The EAT will be likely to hear oral evidence from both the Appellant and Respondent as to what was said, and also consider the Tribunal’s response. Whilst the Tribunal members are not called to give evidence, the EAT will consider their actual recollection and records of what was said, and disregard any assertions by them that they were not bias. Submissions will need to include observations on the principles set out above.

Some recent cases are illustrative of the approach taken by the appellate Courts. In Ezsias v North Glamorgan NHS Trust the Claimant’s claim was dismissed at a PHR. In listing the PHR the Judge stated: “… I would go further and say that I have no doubt that [the Claim] is bound to fail in that any reasonable tribunal will find that public interest disclosure was not the principal reason for dismissal”. The Claimant appealed on the grounds that the Judge had predetermined the case in advance of the PHR. The EAT and Court of Appeal agreed, holding that the Judge’s comment made at the listing stage would have a lead a fair-minded and informed observer to believe that there was a real possibility that she had a concluded view or a closed mind regarding the employee's prospect of success.

In City & County of Swansea v Honey the EAT provided some useful guidance when considering the ‘fair minded and informed observer’ test, namely, that the reference to the ‘possibility’ requiring to be ‘real’ excludes fanciful possibilities but that if there is real ground for doubt then that doubt should be resolved in favour of recusal. In that case the union lay member had previously criticised the Respondent in very outspoken terms in connection with a taxi licensing dispute.

The EAT reiterated that an impartial tribunal is of fundamental importance. The EAT, in allowing the appeal, commented that union officials should be able to identify cases in which there is likely to be contention and that it was a surprise that the prior dispute had not been flagged by the union lay member or that the Tribunal had not recognised the issue when asked to do so at the review hearing.

Conclusions

Cases of actual bias are rare. Where an interest arises it is likely that it will be declared by the Judge or lay member and the decision to recuse will be taken consensually. If, often after the event, an interest is discovered, good evidence of it will be needed to mount any challenge of actual bias.

It is more likely that advocates will, at some point, deal with the making or disputing of allegations of apparent bias. Both sides will need excellent notes of what was said, and more often or not, its context. For those seeking to challenge a decision, the fact that they lost is plainly inadequate. Pre-determination or criticism of such an extreme nature that doubt can be cast on the appearance of impartiality by the Judge is the sort of evidence that is required. Successful bias challenges are difficult and rare. Those contemplating such a challenge would be well advised to resist it, unless the evidence for it is compelling.

Jonathan Gidney is a barrister at St Philips Chambers in Birmingham.

Cases Referred to:

Peter Simpler & Co Ltd v Cooke [1986] IRLR 19 EAT at para 17

Hackney v Sagnia [2005] All ER (D) 61 (Oct) at para 63

Hamilton v GMB (Northern Area) [2007] IRLR 391 EAT at paras 28 - 29

Ansar v Lloyds TSB Bank plc [2007] IRLR 211, CA

Ezsias v North Glamorgan NHS Trust [2007] 4 All ER 940 CA

City & County of Swansea v Honey [2008] UKEAT/0030/08