Jersey Unreported Judgments

Employment - appeal against the decision of the Employment Tribunal.

[2013]JRC189

Royal Court

(Samedi)

26 September 2013

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Le Cornu and Fisher.

 

Advocate M. L. Preston for the Representor.

The Respondent appeared in person on his own behalf.

judgment

the deputy bailiff:

Introduction

1.        The representation of the representor was brought on 2^nd August, 2013, when the Court ordered the respondent be served.  By its representation, the representor seeks to appeal against the decision of the Employment Tribunal Chairman made on or about 5^th June, 2013, whereby she refused to recuse herself from hearing employment tribunal case number 0802-2013 between the respondent and the representor.  Leave to appeal her decision was granted by the Chairman at an interim hearing on 19^th June, 2013.  The representation was heard on 6^th September and judgment, having been initially reserved, is now handed down. 

2.        The first question to arise is as to the nature of this application.  It is said to be an appeal under Article 94(1) of the Employment (Jersey) Law 2003 ("the Law").  Article 94 is in these terms:-

"Appeals

(1)       An appeal on a question of law shall lie from a decision or order of the Tribunal to the Royal Court with the leave of the Tribunal or of the Royal Court. 

(2)       No appeal shall lie from a decision of the Tribunal refusing leave for the institution or continuance of, or for the making of an application in, proceedings by a person who is the subject of an order under Article 1 of the Civil Proceedings (Vexatious Litigants) (Jersey) Law 2001." 

3.        Paragraph (2) of Article 94 clearly does not apply.  There is a question mark over whether this present application is in reality an appeal under Article 94(1).  It was a decision of the Chairman not to recuse herself but on the other hand it might be thought surprising if all interlocutory decisions of the Tribunal were subject to an automatic right of appeal.  We do not have to decide this.  No objection was taken by either of the parties to my sitting with Jurats, nor indeed could one be reasonably taken as the Inferior Number of the Royal Court is always properly constituted by the Judge sitting with two Jurats.  The answer to the question as to whether this is an appeal properly brought under Article 94 is not necessarily straightforward, but we do not think it matters for the purposes of the present case as the members of the Court are agreed on the outcome. 

Proceedings before the Tribunal

4.        The respondent's claim before the Tribunal is that he was employed as the Business Development Manager of the representor until he was made redundant on 19^th November, 2012.  His claim for compensation in the sum of £16,153.83 and other relief was launched on 7^th February, 2013.  He stipulated that Collette Hunt of Messrs Collas Crill would represent him.  On 1^st March, 2013, Law At Work (Channel Islands) Limited entered a defence of the claim on various grounds but essentially the representor asserted that the redundancy was justified, having regard to the size and administrative resources of its undertaking, and in the circumstances it was reasonable to dismiss the respondent.  It was said that even if not justified on redundancy grounds, it was a course of action that was nonetheless fair on business reorganisation grounds.  Various counter-claims were made for alleged breach of contract. 

5.        On 25^th April, 2013, the Registrar of Appeals in Tribunals gave notice to Law At Work (Channel Islands) Limited, and, we assume, Mr Devaney's lawyers Collas Crill, that a case management meeting would be held on Friday 14^th June, 2013.  The letter indicated that Advocate C Davies, the Deputy Chairman would hear the case.  However on 14^th May, 2013, the Registrar was in touch with Law At Work Limited (Channel Islands) to advise that the Deputy Chairman had identified a conflict such that she should not act.  The email is in these terms:-

"I write to advise you that the Deputy Chairman has bought [sic] to my attention that she is now, unfortunately, conflicted with this case.  As you are aware Collas Crill are acting for the applicant and as a normal matter of course we do not give these cases to our Chairman as her husband works at this firm, although I ought to make it clear that he has no knowledge of Tribunal cases as her husband is not involved with employment law.  The Chairman is quite happy to deal with the case and has asked me to confirm with you as to whether you would have any objection to her sitting. 

I look forward to hearing from you.  If I do not receive a reply by 16^th May I will assume there is not a problem and allocate this case accordingly."

6.        It seems to us that two days' notice to respond to a matter of this kind was insufficient.  At all events, a response was sent to the Registrar on 21^st May, expressing regret but reporting that their client did object to the Tribunal's proposed appointment of the Chairman to this case and a formal letter/application was enclosed for the record. 

7.        The formal objection was in these terms:-

"Further to your email of 14^th May, 2013, we write to confirm that the Respondent objects to the proposed appointment of the Chairman to this case and respectfully request the Tribunal to appoint an alternative Chair to the same. 

With respect, the Respondent does not regard the (hearsay) assertion as to Mr Santos-Costa's involvement in the matter as the relevant test in such cases.  Instead the Respondent admits the Chair is disqualified from sitting in a judicial capacity pursuant to the rule against bias, in particular that the Chair's connection with the applicant's representative, Collas Crill, is such that a reasonable man (as borne out by our instructing client's reaction) would think it likely or probable that there was a real risk of bias on the Chair's part, unconscious or otherwise. 

We note that you do not provide the details of the Deputy Chair's "conflict of interest" and would respectfully ask you to disclose the same, particularly given the above.  As it stands, the Respondent has no objection to the Deputy Chair hearing the case, and is not aware of any reason why that would be inappropriate."

8.        The evidence before us is that there were further telephone conversations between Mr Buckland of Law At Work and the Assistant Judicial Greffier on 24^th May and 27^th May, 2013.  Mr Buckland made it plain that the objections which his client had to the Chairman presiding over the Tribunal had not been withdrawn.  It was not a personal issue, but he was reflecting the instructions he had received. 

9.        There was some email correspondence from 31^st May through to 5^th June the effect of which is that the Assistant Judicial Greffier had tried to find an alternative to the Chairman, but was not able to do so.  Although the Law provided for up to five Deputy Chairmen, each appointment had to go through the full appointments procedure, which would cause a substantial delay.  The last email from Mr Buckland to the Assistant Judicial Greffier confirmed that his client remained of the opinion that it would not be appropriate for the Chairman to hear the case, and considered that although there would be potential to delay, this was better than to proceed and not avoid any possibility of bias.  It was emphasised that the representor did not have any kind of personal issue against the Chairman herself. 

10.      On 5^th June, 2013, the Assistant Judicial Greffier responded in these terms:-

"Thank you for your email.  I am sorry that your client cannot see their way to agreeing to Mrs Santos-Costa dealing with this case and in the light of the fact that it is not possible for us to start the process of appointing any new Deputy Chairman before July at the earliest, the following course of action has been decided upon. 

The CMM scheduled for 14^th June will go ahead as planned.  A CMM, as you are aware, is an entirely administrative meeting and held to discuss case management issues; as the substantive matter is not being dealt with at the CMM there should not be any valid reason for your client objecting to Mrs Santos-Costa chairing this meeting.  It follows that the requirement of your client to file papers by 7^th June also remains. 

Having discussed the matter with both the Chairman and the Deputy Judicial Greffier we are of the opinion that, as Mrs Santos-Costa does not consider herself conflicted, then following the CMM, she will continue as the Chairman of this particular case.  If the matter is not settled prior to any final hearing date and your client is still concerned about any possible conflict then they do have the avenue of an appeal on a point of law to the Royal Court open to them. 

..."

11.      We have had sight of a transcript of the hearings which took place on 14^th June and 19^th June, 2013, before Mrs Santos-Costa as Chairman of the Tribunal.  The respondent was represented by Ms Hunt of Messrs Collas Crill, and the representor by Mrs Peacock and Mr Buckland of Law At Work.  After hearing argument on the matter of her possible recusal, the Chairman reserved her decision on that point.  She did make procedural directions in relation to the substantive dispute.  We have not been referred to these and there has been no argument upon them before us.  In a long and careful judgment delivered on 25^th June, 2013, the Chairman rejected the recusal arguments which had been submitted to her by the representor.  She concluded:-

"In my opinion the facts and circumstances of this case, as set out above, would, if presented to a reasonable, fair-minded observer, lead him to believe that there could be no possibility of the Chairman being considered of exercising any bias in this case whatsoever."

The application before us

12.      The application before us was advanced on two grounds.  The first was that under Article 7 of the Human Rights (Jersey) Law 2000 ("the Human Rights Law"), it is unlawful for a public authority to act in a way which is incompatible with a Convention right.  The Employment Tribunal is a public authority for these purposes.  Accordingly it is required to act in accordance with Article 6 of the Convention which provides that in the determination of his civil rights and obligations, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.  The alternative argument was advanced on the basis of the modern test set out by Lord Hope in Porter-v-Magill [2002] 2 AC 357 at paragraph 103:-

"Whether a fair-minded and informed observer having considered the facts would conclude that there was a real possibility that the tribunal was biased."

This test has been applied in this jurisdiction in Syvret-v-Chief Minister [2011] JLR 343, and in Pitman-v-Jersey Evening Post and First Jersey Limited [2013] JCA 149 at paragraph 8.  Notwithstanding the different legal bases upon which the argument was put, the essential ground of objection was the same.  The Chairman's husband, Advocate Nuno Santos-Costa, is a partner in the firm of lawyers which was acting for the respondent and as a result he had a direct financial interest in the case. 

13.      In Helow-v-Home Secretary [2008] 1 WLR 2416 at page 2418 Lord Hope said this of the fair minded observer:-

"(2)     The observer who is fair minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument.  She is not unduly sensitive or suspicious ... Her approach must not be confused with that of the person who has brought the complaint.  The "real possibility" test ensures that there is this measure of detachment.  The assumptions that the complainer makes are not to be attributed to the observer unless they can be justified objectively.  But she is not complacent either.  She knows that fairness requires that a judge must be, and must be seen to be, unbiased.  She knows that judges, like anyone else, have their weaknesses.  She will not shrink from the conclusion, if it can be justified objectively, that things that they have said or done or associations that they have formed may make it difficult for them to judge the case before them impartially. 

(3)       Then there is the attribute that the observer is "informed".  It makes the point that, before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant.  She is the sort of person who takes the trouble to read the text of an article as well as the headlines.  She is able to put whatever she has read or seen into its overall social, political or geographical context.  She is fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment."

14.      This passage was cited with approval by the Royal Court in Syvret-v-Chief Minister.  

15.      Before going on to consider the application of the Law to the facts of this case, it is appropriate also to have regard to Article 84 of the Law:-

"Declaration of interests, etc.

(1)       If a member of the Tribunal has a personal or pecuniary interest, direct or indirect, in a matter which is the subject of an application or reference to a Tribunal on which the member is sitting, the member shall, as soon as practicable after the commencing of the hearing of the application or reference or after the disclosure of the matter in which the member has such an interest, disclose the fact and shall not take any further part in the hearing or in the decision reached as the result of the hearing. 

(2)       A person who fails to comply with the provisions of paragraph (1) shall be guilty of an offence and liable on conviction to a fine of level 4 on a standard scale. 

(3)       For the purposes of paragraph (1) a member of the Tribunal shall be treated as having an indirect pecuniary interest if the member or any nominee of the member is a partner or an advisor of, or is a member, employee or advisor of a company or other body which is, or is associated with, a party to the issue which is the subject of the application or reference."

16.      It is apparent from these provisions that the States have given careful thought to the need for the Tribunal to be, and to be perceived to be, independent of those who are arguing before it.  It is right to record immediately that the Chairman is not in breach of Article 84(1), nor does she have an indirect pecuniary interest that falls within the terms of paragraph (3) of that Article.  We have considered whether the States were setting a maximum standard by these provisions.  We do not think so.  There would need to be express statutory language to exclude either the Human Rights Law or the established case law and there is none. 

17.      We should finally record that it appears that from time to time in the past, the Chairman has presided over cases before the Tribunal where the case was presented by a member of the firm in which her husband is a partner.  No objection has been taken previously to that course of action being followed.  It has not been a regular occurrence because the Registrar to the Tribunal has followed a general policy of trying to ensure that cases in which Messrs Collas Crill have a representative interest are listed before the other permanent lawyer member of the Tribunal.  This approach is explained at paragraph 2 of the judgment of the Chairman:-

"In accordance with the usual practice of the Employment Tribunal the Registrar put this case onto the list of the Deputy Chairman.  The reason for this practice is that the Chairman of the Tribunal is married to a partner of Collas Crill and it had been decided within the management of the Tribunal that it would avoid potential misunderstandings regarding any conflict of interest by the Chairman if cases involving Collas Crill went straight to the Deputy Chair's list wherever possible."

It may be thought that this general policy of itself reflected a recognition by the Chairman of the potential difficulties which have arisen in this case. 

Discussion

18.      It is apparent to us from reading the transcript that the Chairman felt some frustration at the application that was before her.  She clearly felt no personal embarrassment whatsoever at dealing with the matter, and we can understand why.  Both she and her husband hold judicial positions in the Island and both are lawyers of many years' experience.  Both undoubtedly are aware of the correct ethical approach to take, and, speaking for ourselves, we have no doubt at all that they would both follow the proper ethical approach when dealing with cases before them.  It is in those circumstances very unfortunate that some passages in the transcript could be taken to suggest an irritation with the representor.  It may well have been inspired by a frustration at the Tribunal's inability to deliver justice in the case if the representor's objections were to be upheld.  It is certainly apparent that rightly or wrongly the representor's challenge to the constitution of the Tribunal was causing irritation to the Chairman. 

19.      The Employment Tribunal Regulations 2005 contain a reference to the overriding objective at paragraph 1:-

"1. The overriding objective of these regulations is to enable the Tribunal to deal with cases justly, which includes, so far as practicable:-

(a)       Ensuring that the parties are on an equal footing;

(b)       Dealing with cases in a manner which is proportionate to their complexity and importance;

(c)       Dealing with cases expeditiously and fairly;

(d)       Saving expense;

(e)       and it shall be the duty of the parties to assist the Tribunal in achieving this overriding objective."

20.      It is clear from the Chairman's judgment that she was very much exercised by the delay which recusing herself would cause the applicant (respondent).  Time estimates of at least 6 months have been given before another Deputy Chairman could be appointed.  We assume for present purposes that those time estimates are correct, although we will have something to say about the appropriate regulations later in this judgment.  We commend the Chairman's emphasis on the need to provide expeditious justice. 

21.      There is also an implication running through some of the papers that we have seen that the representor is taking the current objection merely for tactical reasons, hoping to exhaust the insurance monies available to the respondent to pay for his legal fees.  We do not have the information on which to make any assessment of that issue.  Nor in our judgment does it matter.  Whether the point is taken for tactical or for genuine reasons, the representor is entitled to a hearing before a fair and impartial tribunal in accordance with the Law. 

22.      We take first the argument under the Human Rights Law, only because it is unnecessary to decide this case on that basis.  The process of dealing with the representor' s civil rights is a two part process - one part before the Tribunal and the other part by way of appeal on a point of law to the Royal Court.  It is not contended that the Royal Court is not a fair and impartial Tribunal.  These arrangements are similar to those which were considered in the case of R-v-Secretary of State for the Environment, Transport and the Regions ex p Holdings & Barnes Plc [2001] UKHL 23, (the Alconbury decision), involving the planning process in England and Wales.  There the appellant has the advantage of a full merits appeal before a planning inspector, with a right of appeal to the Court on a point of law.  The appeal to the inspector was clearly not human rights compliant.  It was relevant in that case that the decision involved a substantial consideration of policy and the public interest, and accordingly there was much emphasis given to the desirability that such decisions should be made by public officials who were responsible to the legislature.  That accorded with principles of democracy.  A similar approach was taken in the case of Tower Hamlets LBC-v-Begum (Runa) [2003] UKHL 5, where the question at issue was the lawfulness of a decision by a local authority as to whether accommodation offered to the appellant was "suitable".  Once again, the House of Lords appears to have considered that in schemes where social welfare was at the heart of the decision under review, there was a need to ensure that the sovereignty of Parliament was respected in making arrangements for efficient administration. 

23.      A slightly different line was taken by Moses J in R (on the application of Bewry)-v-Norwich CC [2001] EWHC Admin 657, where he distinguished a challenge to a decision made by a local authority on the entitlement of housing and other benefit upon the basis that this was not a question of policy but the judgment below was on a finding of fact.  In such a case, the Court on judicial review could exercise only limited control, and could not substitute its views as to the weight of evidence.  This was a view taken up and endorsed by Lord Bingham in Begum (supra). 

24.      These English cases were considered by the European Court of Human Rights in Tsfayo-v-United Kingdom [2007] BLGR 1.  The case involved a review of a decision by the Housing Benefit and Council Tax Benefit Review Board, which was found by the European Court to be lacking in structural independence.  In Tsfayo, the Board was deciding a straightforward question of fact, and in such cases the power of the High Court to quash a decision on judicial review was not sufficient to make the overall process compliant with Article 6 of the Convention.  There is thus at least room for a doubt as to whether the utilitarian arguments which were adopted by the House of Lords in Alconbury and Begum would hold sway today.  Nonetheless, we have not been addressed on this at all, and we therefore merely note, without deciding it, that there is at least an argument for concluding that the overall process in relation to handling employment disputes under the Law is human rights compliant, even if criticism made of the process before the Tribunal could be justified on human rights grounds. 

25.      We instead consider the constitution of the Tribunal against the ordinary principles which disqualify judges from presiding over courts or tribunals.  The first principle is that a judge is disqualified if there is actual bias.  The second principle is that "Justice should not only be done but should manifestly and undoubtedly be seen to be done", as Lord Hewart CJ put it in R-v-Cranbourne Justices ex p Pearce [1955] 1 QB41 at 52.  The latter part of the phrase emphasises that the integrity of the decision making process as a whole must stand up to scrutiny.  The former part of the phrase is encapsulated by the maxim nemo iudex in sua causa (no one should be judge in his own cause), which is construed widely to mean that no one should act as judge where he has a conflicting interest.  For the same reason one cannot be both judge and attorney of any of the parties. 

26.      Courts have long recognised that it is undesirable to have to conduct an enquiry into whether a judge is actually biased, not just because of the confidential nature of the decision taking of judges but also because there is recognised to be a risk of subconscious bias, whether that works in favour of or against the reason for the bias.  Without applying his mind closely to the thought making process, a judge may be inclined against a party he might be expected to favour simply because he recognises subconsciously the need to be fair.  Thus has developed the approach of considering the appearance of bias where the established test set out by Lord Hope is as to whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the Tribunal was biased. 

27.      It is also important to note the comments of Beloff JA in Pitman and Another-v-Jersey Evening Post Limited and Another (supra) at paragraph 9:-

"In the Bailiwick the chances that persons (Jurat, jurors or judges) may have encountered someone involved in proceedings before them will be greater than in other larger territories; see Drew-v-AG [1994] JLR 1 at para 33 cf, Barrette-v-AG [2006] JCA 128 at paras 53-61.  This reality may require, if not disapplication, at any rate adaptation in application of the general principle, but in any event I do not consider that the single fact that someone has served as a Jurat at the same time as someone involved in proceedings before him or her can by itself be a basis for recusal; otherwise it might on occasion be impossible to find anyone eligible to sit on a case where a Jurat was involved as a party or key witness, see Fordham Judicial Review 6^th edition para 6.1.37 (apparent bias and function/necessity/reality) and the cases there cited."

28.      The doctrine of necessity has been held to apply where the person who makes the decision is biased but cannot effectively be replaced - for example if a quorum could not be formed without him.  The doctrine has also been invoked where the administrative structure inevitably leads to an appearance of bias, such as a position where proceedings are brought against all superior judges.  In other cases the judges might all have a pecuniary interest - see for example The Judges-v-Attorney General for Saaskatchewan [1937] 53 TOR 464, where the judges were required to rule on the constitutionality of legislation rendering them liable to pay more income tax. 

29.      Given the effect of Article 6(1) of the European Convention on Human Rights, it may well be difficult now to reach a conclusion that the doctrine of necessity triumphs over the legal right to have an independent and impartial tribunal.  It would certainly seem from Kingsley-v-United Kingdom [1996] COD 178, that the doctrine of necessity does not apply where the allegation is of actual bias, and it would seem difficult to justify in those circumstances the assertion that it should apply in cases where there was an appearance of bias.  On the face of it, the choice for the Court might have to be that the legislative structure which established the court or tribunal as the case might be was incompatible with a Convention right, and the legislature would have to give consideration to such a conclusion at a later date. 

30.      In any event, for the reasons which we give later in this judgment, we do not think that the doctrine of necessity, even if it does apply in theory still, notwithstanding the Human Rights Law, applies in this case. 

31.      Beloff JA in Pitman then went on to consider the issue in more detail in the context of a suggestion of personal friendship between the two Jurats which, as he put it, "prompts closer enquiry".  We consider the same approach needs to be taken here.  As was put trenchantly by Mrs Peacock to the Chairman at one point in the hearing on 19^th June, 2013:-

"I think this might be at the root of it but I don't know how more simply to put it other than, and if you will forgive me for saying this as bluntly as this, madam, the Respondent [Representor] sees you as the wife, and you are the wife, of the recipient of the applicant's money.  And I am sorry if that has a bad turn of phrase, that's just the facts."

32.      The Chairman dealt with this at paragraph 17 of her judgment, rejecting the argument for the reason that the firm of Collas Crill would be paid its fees by the applicant, whether the applicant won, lost or settled his claim.  She therefore rejected the view that she could have any particular interest in the outcome of the case as the respondent/applicant's fees would accrue to her husband's firm whatever the outcome, and whoever chaired the hearings.  It was relevant in her judgment that the Employment Tribunal does not have the power to award costs following the hearing, so the Chairman's appointment could not be considered as a means of benefitting her husband's firm in that manner either. 

33.      We think this argument needs to be broken down but before doing so, we first posed ourselves the question as to what the position would be if the Deputy Chairman, who is currently a lawyer in practice, were to preside over a case in which her business partner represented one of the parties.  In that hypothetical situation, she would have a direct pecuniary interest in the subject matter of the case which she was trying, even more direct than an interest arising from having recently acted for one of the parties, which caused her to recuse herself in this case.  She would have a direct pecuniary interest in the subject matter of the case actually before the Tribunal.  The fees would be due whether her partner won the case or not.  It could be said that the fees would be more easily recovered if the client won.  It does not seem to us to matter that the Tribunal would have no power to award costs.  The fees would be due in any event.  In a very real sense, one of the parties to the proceedings would actually be paying the judge. 

34.      The only difference between the hypothetical scenario in the preceding paragraph and the instant case is that the Chairman is not herself a partner in the firm which represents one of the parties to the proceedings; but her husband is.  It is against that background that we have asked ourselves what a fair-minded and informed observer would make of those facts.  If there were joint finances then it may be that the automatic disqualification principle would apply as one party would indeed be paying the judge.  But it seems to us that the informed observer would be likely to start from the assumption, unless there was some evidence to the contrary, that the family finances of husband and wife were sufficiently linked that one could say that each of them had some benefit from the earnings of the other.  We do not in the circumstances think that there is any significant difference between the hypothetical situation involving the Deputy Chairman, which we have used by way of example above, and the actual situation involving the Chairman which we now have before us. 

35.      We do not think the Chairman's reasoning set out in paragraph 30 above stands up to scrutiny.  First of all, her husband has a direct financial interest in the case.  It is not material that such interest is not contingent upon the success of his firm's client, but even if it were, the question of success does not seem to us irrelevant.  If the fees have not yet been paid in full, they are more likely to be recoverable if the client succeeds.  Even if the fees have been paid in full in advance, success or otherwise is likely to have an impact on the relationship between this client and her husband's firm and, more generally, on that firm's reputation at large in employment matters. 

36.      It follows from these views that the lack of any jurisdiction to award costs is not material.  That inability may remove a potential further ground of criticism but it does not cure the problems which do exist. 

37.      There are a plethora of decisions in the English courts where the possibility of bias arising from the professional business or other vocational relationships of an adjudicator with a party before him has been considered.  In Thellusson-v-Rendleshan [1859] 7HLC 429, it was found improper for one person to act both as judge and advocate.  In R-v-Brekenridge [1884] 48 JP 293, it was found improper for the clerk of the court to act as solicitor for a party.  Similarly in R-v-Sussex Justices ex p McCarthy [1924] 11 KB 256, it was improper for the clerk to the justices to sit where a party was convicted of a criminal offence arising out of a motoring accident where the solicitors firm of which the clerk was a member acted for the party in civil proceedings arising out of the same accident.  In all these cases involving magistrates' clerks, the decisions of the magistrates were quashed for apparent bias. 

38.      In a decision going the other way, the Court of Appeal has held that the fact that the husband of the judge was a barrister in chambers that undertook work for one of the parties did not in the circumstances of that case lead to any implication of bias - see Jones-v-DAS Legal Expenses Insurance Co. Limited [2003] EWCA Civ 1071. 

39.      Friendships and family relationships often give rise to the suspicion of bias.  In Locabail Limited-v-Bayfield Properties Limited [2000] 1 All ER 65, Lord Bingham CJ gave consideration to the principles and guidelines which might apply to the disqualification of a judge on the grounds of bias.  In particular he noted that there was a distinction to be drawn between members of the bar who sat judicially and partners in a firm of solicitors.  Whereas the former would know of their own affairs and would be expected to know of any past or continuing professional or personal association which might be thought to impair their judicial impartiality, the position of a solicitor judge was more complex because the solicitor, as partner in a firm of solicitors, was legally responsible for the professional act of his partners, and he owed "a duty to clients of the firm for whom he or she personally may never have acted and of whose affairs he or she personally may know nothing" (see paragraph 20).  At paragraph 25 of his judgment, Lord Bingham said this:-

"It would be dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias.  Everything will depend on the facts, which may include the nature of the issue to be decided.  We cannot, however, conceive of circumstances in which an objection could be soundly based on the religion, ethnic or national origin, gender, age, class, means or sexual orientation of the judge.  Nor, at any rate ordinarily, could an objection be soundly based on the judges social or educational or service or employment background or history, nor that of any member of the judge's family; or previous political associations; or membership of socials or sporting or charitable bodies; or masonic associations; or previous judicial decisions; or extra-curricular utterances (whether in text books, lectures, speeches, articles, interviews, reports or responses to consultation papers); or previous receipt of instructions to act for or against any party, solicitor or advocate engaged in a case before him; or membership of the same Inn, circuit, local Law Society or chambers ....  By contrast, a real danger of bias might well be thought to arise if there were personal friendships 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, particularly in the course of the hearing, 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.  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 party or witness to be unreliable, would not without more found a sustainable objection.  In most cases, we think, the answer, one way or the other, will be obvious.  But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal.  We repeat; every application must be decided on the facts and circumstances of the individual case.  The greater the passage of time between the event relied on a showing a danger of bias and the case in which the objection is raised, the weaker (other things being equal) the objection will be."

40.      We find that set of guidelines to be helpful in the instant case. 

41.      In our judgment, the informed observer would consider that there was a real possibility of bias in circumstances where a judge had before him or her an advocate representing a party where that advocate was a member of the firm in which the spouse of the judge had an equity interest and therefore a direct pecuniary interest in the fees which were liable to be paid by one or other party to the proceedings, whether on an own client basis or by recovery following a costs order. 

42.      In Pitman-v-Jersey Evening Post (supra), it was said that the general principle may need to be adapted in the context of this small island where there are increased chances of persons involved in the judicial process encountering others who are before them as parties or otherwise.  We recognise and accept that adaptation of the general principle may be necessary.  However we do not think that such a rule could possibly take us into territory where one party to proceedings is in effect paying the judge. 

43.      We are conscious of course that in the case of Barra Hotel Ltd-v-AG [2000] JLR 370, the Court of Appeal decided that the Crown must have been aware that at the time of the appointment of the then Attorney General, his brother was Bailiff and that the Crown must therefore have been satisfied that the appointment was not going to lead to any lack of compliance with these principles which are required to be met in order to secure a fair trial.  If that is so in relation to brothers, is it the same with spouses?  It could be said here that the States must have been aware when appointing the Chairman that her husband was a lawyer in a local law firm.  First of all, we think the spousal relationship is different and gives rise to more obvious anxiety in this context than that of brothers. Secondly, the States also were aware that when appointing the Deputy Chairman she was actually in private practice herself.  We have asked ourselves the question whether the States would have expected her to preside over a case where her business partner was representing one party.  We think it is obviously not so.  Such a possibility would not have been considered by the States, not least because the relevant legislation makes provision for up to five Deputy Chairmen, but also the provisions of Article 84(3) of the Law show that she could not be expected to sit in those circumstances. 

44.      It appears to us that if one is looking at what adaptions might be acceptable, one could conclude that no objection should be taken where the judge's spouse had no equity, management or socially close connection with the representative of one of the parties in the proceedings.  The Island's judiciary, and the Island's bar, are both large enough to cope with that sort of constraint without impinging upon the ability to do justice day in, day out.  Nonetheless, we hesitate to give examples of what might be in order because objections of this kind are always specifically fact based, and should be considered in that light as the occasion demands. 

45.      We mention two other points.  The first is that it was said to us that the impact, in terms of perceived bias, was very slight because it was only one member out of three in the Tribunal who could be the subject of criticism in this way.  We reject that argument.  If there is any real possibility that one of three judges is biased, that is a very large advantage for the party in whose favour the bias might be thought to exist.  The second relates to necessity and the overriding objective. 

46.      The Employment Tribunal (Jersey) Regulations 2005 provide that the Jersey Employment Tribunal shall consist of the Chairman, at least one and not more than five Deputy Chairmen, and no fewer than two or more than eight other members, being persons with knowledge or experience of or interest in trade unions or matters relating to employees, and a similar number in relation to employers' associations or matters relating to employers generally.  By Regulation 3:-

"(1)     The recruitment of members shall be overseen by, and conducted in accordance with the guidelines produced by, the Jersey Appointments Commission.  

(2)       The members of the Tribunal shall be appointed by the States on the recommendation of the Minister after consultation with the Jersey Appointments Commission."

47.      By Regulation 7, in proceedings before the Tribunal which relate to an individual employment dispute, the Chairman or Deputy Chairman shall constitute the Tribunal, albeit that the Chairman can, if she thinks it desirable, direct that in a particular individual employment dispute, the Tribunal shall be constituted with other members representing employee and employer interests. 

48.      In circumstances where there is only one Deputy Chairman, who has already recused herself on the grounds of appearance of bias, there therefore arises the difficulty that, the membership of the Tribunal being as it is currently constituted, there is no one to preside if the Chairman does not do so. 

49.      We do not consider that this fact engages the doctrine of necessity, even on the assumption that that doctrine still exists and is compatible with the Human Rights Law.  We reach that conclusion because although there will undoubtedly be a delay as a result of our decision, the administrative structure is not such that there will inevitably be an appearance of bias, nor is it such that there can be no effective replacement of the Chairman in this particular case.  It is open to the States to appoint more than one Deputy Chairman.  The Minister may well wish to consider recommending to the States the appointment of at least one person from outside the Island to act as Deputy Chairman.  Quite apart from that, the Minister would want to revisit the question of recommending to the States other appointments of on-Island persons as Deputy Chairman. 

50.      This takes us to the overriding objective. 

51.      The Chairman was anxious, as are we, that the respondent in this case is going to face a long delay before he gets his claim heard in the Employment Tribunal.  It is not the fault of the Chairman, nor is it the fault of the representor or the respondent that this is so.  It is, regrettably, the fault of the States either by failing to appoint further Deputy Chairmen in accordance with the Regulations, or by failing to structure the legislation in such a way that someone had power to appoint the equivalent of a Commissioner or Deputy Chairman for the purposes of a particular case, whether that person be the Bailiff, or the Chairman of the Tribunal, perhaps with the consent of the Bailiff.  In the Royal Court, the facility of appointing a Commissioner has been drawn upon frequently; sometimes where there is some particular expertise in a specialist area of law which makes it desirable; sometimes when the case is a very long one and it is desirable not to tie up the Bailiff or Deputy Bailiff indefinitely; but also in some cases where it has been considered desirable to have someone outside the Island preside over the case to ensure that allegations of bias on the part of the Court have no traction.  It may well be that a solution of this kind ought to be considered by the Minister, initially, and thereafter by the States. 

52.      In the circumstances, we are in no doubt that the representor is entitled to an order that the Chairman should recuse herself from the current proceedings.  We have been told by the respondent that Messrs Collas Crill are no longer acting for him, but it is not clear that they will not be reinstructed later on the process, at the time of the final hearing.  In the absence of an undertaking from the respondent not to reinstruct Messrs Collas Crill - and whether or not he should retain that firm is a matter solely for him and for them - we consider the Chairman cannot preside in the Tribunal on this case.  For the avoidance of doubt, if such an undertaking were given, there being no allegations of actual bias, the Chairman would be able to preside in the Tribunal on this case. 

Authorities

Employment (Jersey) Law 2003.

Human Rights (Jersey) Law 2000.

Porter-v-Magill [2002] 2 AC 357.

Syvret-v-Chief Minister [2011] JLR 343.

Pitman-v-Jersey Evening Post and First Jersey Limited [2013] JCA 149.

Helow-v-Home Secretary [2008] 1 WLR 2416.

Employment Tribunal Regulations 2005.

R-v-Secretary of State for the Environment, Transport and the Regions ex p Holdings & Barnes Plc [2001] UKHL 23.

Tower Hamlets LBC-v-Begum (Runa) [2003] UKHL 5.

R (on the application of Bewry)-v-Norwich CC [2001] EWHC Admin 657.

Tsfayo-v-United Kingdom [2007] BLGR 1.

R-v-Cranbourne Justices ex p Pearce [1955] 1 QB41 at 52.

The Judges-v-Attorney General for Saaskatchewan [1937] 53 TOR 464.

Kingsley-v-United Kingdom [1996] COD 178.

Thellusson-v-Rendleshan [1859] 7HLC 429.

R-v-Brekenridge [1884] 48 JP 293.

R-v-Sussex Justices ex p McCarthy [1924] 11 KB 256.

Jones-v-DAS Legal Expenses Insurance Co. Limited [2003] EWCA Civ 1071.

Locabail Limited-v-Bayfield Properties Limited [2000] 1 All ER 65.

Barra Hotel Ltd-v-AG [2000] JLR 370.