United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR ANDREW ALLEN (of Counsel) Instructed by: Messrs Rowley Ashworth Solicitors 247 The Broadway Wimbledon LONDON SW19 1SE
For the Respondent	MR DAMIEN BROWN (of Counsel) Instructed by: Messrs Edwards Angell Palmer & Dodge Solicitors One Fetter Lane LONDON EC4A 1JB

SUMMARY

Practice and Procedure – Bias, misconduct and procedural irregularity

Tribunal employment judge wrongly recused himself on the grounds of apparent bias. He then reconsidered the decision and decided to hear the case after all. The claimant appealed that decision and the EAT upheld that appeal. There were various procedural errors in that determination, including the fact that the decision should have been taken by the whole Tribunal. Moreover, the EAT concluded that in the light of subsequent matters, the only possible decision now that could be reached was that the test for the appearance of bias was satisfied. Accordingly the appeal was upheld and the case was remitted to a fresh tribunal.


 


THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)

1. This is a case in which the claimant has brought certain claims for constructive dismissal and disability discrimination against her former employer, the NSPCC.
2. The claim came before the Employment Tribunal and there were six days of hearing between 11 and 18 April 2007. The claimant became unwell before the hearing had been completed. The case was accordingly adjourned part heard. Her health remained poor and she has not been in a position to continue the hearing for some time. The case has now been listed for a further six days commencing on 3 March.
3. Following the earlier hearing, the claimant was concerned about alleged bias on behalf of the Tribunal judge and on 9 September, her husband wrote to the regional employment judge on her behalf raising a whole raft of concerns about the conduct of the employment judge hearing the case. The letter was stated to be "strictly private and confidential."
4. The details of the complaint are for the most part not material to the issues we have to determine. Suffice it to say that our provisional view is that some, but not necessarily all, of them involve allegations of impropriety and bias that on the face of it could be fully explained by normal robust case management. It is frequently the case that litigants in person feel that the tribunal is biased in circumstances where the employment judge is simply seeking to ensure that the proceedings are conducted within sensible limits, trying to get the parties to focus on what is relevant, and seeking to ensure expedition.
5. However, one of the matters drawn to the regional employment judge's attention by the claimant was the fact that it appeared that the employment judge had been disciplined by the Solicitors Disciplinary Tribunal for conduct unbefitting a solicitor. The claimant's husband was at that time not sure that it was the same employment judge who had been so disciplined, but he had reason to believe that it was.
6. The regional employment judge responded to this application and informed the parties by letter dated 27 September that the employment judge had decided, with the approval of the regional employment judge, to step down. He added:

"This is in no way an admission on his part that there is substance to the complaints. Nevertheless, he considered that there should be no perception of bias."

7. Unsurprisingly, on the 8 October the respondents appealed to this Tribunal on the basis that this decision by the employment judge to recuse himself had been taken without hearing any representations from them and indeed without them having any notion at all as to how the issue had arisen or why the decision had been taken. By then, on 5 October, they had written to the regional employment judge requesting a review of the decision.
8. The regional employment judge wrote to the respondent on 18 October stating that he appreciated that the way in which the employment judge had recused himself had been conducted in a somewhat unorthodox manner. He explained that "matters personal to [the employment judge] are involved. These have not yet been resolved." He indicated that he was not prepared at that stage to divulge further details.
9. The respondent wrote challenging the position and sought an order for disclosure from the EAT. I acceded to that application in part, and by an order dated 26 October I ordered that the Tribunal answer a number of questions including why the Tribunal had acceded to the application, and why the respondent was not given the opportunity to make representations on the issue.
10. This order was overtaken by events. On the 31 October, the regional employment judge conducted a telephone case management conference with the parties. He explained to them that the person disciplined was indeed the same employment judge. This fact had not been known by the regional employment judge nor indeed by the President of the Employment Tribunals. When the matter was drawn to their attention, they did not know whether the Lord Chancellor had been notified (in fact the claimant's Member of Parliament had written to the Lord Chancellor on 13 July.)
11. It was apparently thought to be inappropriate for the employment judge to hear any case until the Lord Chancellor had been informed and the employment judge's position had been determined. However, it now appeared that the Lord Chancellor was going to take no action and therefore the view was taken that there was in principle no impediment to the employment judge continuing to hear the case. He was therefore invited "as soon as reasonably practicable to review his decision in the light of the respondent's detailed application and the respondent's concerns." He was specifically directed to have regard to the criticisms levelled against him by the claimant, and to the fact that there has been a significant delay since her evidence was heard. (We observe that this was probably not a review in the strict sense but rather a reconsideration leading to a decision to revoke an order under rule 11. However, both parties accept that nothing turns on that.)
12. On reconsidering the matter on 6 November 2007, the employment judge resolved to reverse his original decision and to resume hearing the case. The reasons given were that the Tribunal would hear the case fairly and would not demonstrate actual bias; that it would be disproportionate to incur the costs of starting again; and it was emphasised that no provisional view of the merits had been formed. Then the employment judge said this:

"On reflection and considering the authorities I was overhasty in recusing myself once the complaint had been made giving too much weight to the concern raised by Mr Da'Bell from the claimant's point of view only rather than considering whether any reasonable observer would have formed a view or had a perception of bias."

As a consequence, the respondents withdrew their appeal.

13. This decision to accede to the application to review has led to a fresh appeal, this time made by the claimant. In some respects the grounds raised are similar to those raised in the earlier appeal lodged by the respondents.
14. Mr Allen, counsel for the claimant, alleges that there is a series of errors in the way in which this review occurred. First, he submits that there is no power to review the original recusal decision at all and cites in support the authority of Bennett v Southwark [2002] ICR 881 relying on dicta made both by the Employment Appeal Tribunal and also by Lord Justice Ward when the case was considered by the Court of Appeal.
15. Second, the decision should not have been taken by the employment judge alone, as the employment judge has frankly accepted was the case, without the participation of the other two members of the Tribunal. Although the complaint was directed at the conduct of the chairman, in fact it was the whole Tribunal which was having to recuse itself and all members should have been party to the decision.
16. Third, the claimant was not given the opportunity to address the employment judge about whether the case should be reviewed or not. She did make certain observations to the Regional employment judge but not to the Tribunal making the decision.
17. Fourth, no adequate reasons were given for the change of mind; there was no proper attempt to engage with the detailed points made by the claimant in the original letter seeking recusal.
18. It is to be noted that grounds two and three mirror two of the grounds of appeal lodged by the respondents with respect to the original recusal decision.
19. We have in fact been provided with affidavits from the claimant and responses from the employment judge and lay members dealing with the particular allegations of bias. We have also received a statement from the regional employment judge. However, as Mr Allen, in our view rightly, observes, the real issue is not whether the facts did or did not justify or require recusal but whether, that decision having been made, it was proper for the employment judge to reverse it in the manner in which he did.
20. Mr Brown, counsel for the respondents, submits that there can be no doubt at all that the original decision to recuse was unlawful. It was inevitable that an appeal would have succeeded and the case would have had to be remitted to the employment judge to consider the matter again in the light of representations by the parties.
21. Likewise, he concedes that the review decision was also unlawful, since it was taken by the employment judge alone rather than the Tribunal as a whole and without directly hearing any representations from the claimant. He did submit, however, that there was no substance in the original recusal application, and that the reasons given on remission were sufficient for the employment judge to explain why he had reached the decision he had. In particular, the issue of delay was a factor which quite properly weighed with the Tribunal.

Discussion.

22. As all parties accept, this case has gone sadly awry. The problem lies in the fact that, for the very best of motives no doubt, the real reason for the original recusal was never explained to the parties, or at least, not explained until the case management decision directed the employment judge to reconsider the decision to recuse.
23. As both parties accept, the real, or at the very least decisive, reason for the original recusal was plainly the personal difficulty of the employment judge. It was not thought appropriate that he should sit in any case until the issue of the earlier disciplinary proceedings had been resolved.
24. We infer that because once the personal situation had been resolved, the judge considered that there was no need to recuse himself. However, it was impliedly represented, and could reasonably be inferred by any objective observer, that the employment judge considered that there was some merit in the representations made by the claimant. The application for recusal was used as a peg on which to conceal the real reason why it was thought that the employment judge should not sit.
25. We are in no doubt that, as both parties accept, both the original decision to recuse and the decision on review were taken unlawfully. Each application should have been considered by the full Tribunal since the hearing before the whole Tribunal was being aborted. In addition, the other party should have been given the opportunity to make representations. The basic elements of natural justice demand no less.
26. These are, we would have thought, uncontroversial propositions which do in fact have the imprimatur of this court (Browne Wilkinson P presiding) in Peter Simper Ltd v Cooke [1984] ICR 4, 10G-11A. In addition to these grounds, we also accept Mr Allen's submission that given the detailed list of matters alleged to give rise to bias, the reasons are too succinct and do not deal adequately with the points raised. The decision was not, therefore, Meek compliant.
27. In the normal way the effect of these defects would mean that the case would have to go back for the review to be conducted again. (We recognise that in AWG Group v Morrison [2006] 1 WLR 1163, the Court of Appeal, comprising Mummery, Latham and Carnwath LJJ, said that an appellate court could determine this issue of apparent bias itself, but we would be reluctant to do that where the Tribunal had not had an opportunity to consider the original application at all.)
28. However, Mr Allen submits that in a case of recusal, once a tribunal has decided that it should recuse itself, no further review is permissible. As we have said, he relied upon the decision of the EAT and the Court of Appeal in Bennett v Southwark v London Borough Council [2002] ICR 881. In that case the Employment Tribunal recused themselves from hearing a particular appeal on race discrimination because they were accused of being racist by an extremely difficult litigant and felt that they could not thereafter impartially hear the appeal.
29. The Court of Appeal considered, as had the EAT, that the Tribunal had acted prematurely and ought to have allowed time for the temperature to cool with the possible result that the claimant might have withdrawn his remarks. However, both HH Judge Clark, giving the judgment in the EAT, and Ward LJ in the Court of Appeal, recognised that once the Tribunal had formed the view that they could not be sure of their impartiality, they had no option other than to recuse themselves. In the EAT (1273/97) HH Judge Clark observed:

"Having declared themselves, rightly or wrongly, to be incapable of fairly adjudicating on the complaints, it would be patently absurd for us to direct the… tribunal to do just that."

30. Ward LJ reached the same conclusion in the Court of Appeal (para. 44):

"That said, could the tribunal properly have continued to hear this case having decided in the seclusion of the retiring room that it was incapable of hearing it impartially? To that question there is inevitably only one answer. It could not possibly have continued. It was honest enough to admit that it had lost its impartiality. From that moment onwards it was infected with actual bias. To have continued would have been to deny justice being done."

31. Similarly here, says Mr Allen, once the Tribunal had reached the decision that it could not hear the case, it could not conceivably change its mind.
32. We do not agree. In our view there is a significant difference between this case and the Bennett case. In Bennett, the Tribunal recused itself for actual bias i.e. it was not confident that it could with impartiality hear the case. Here the reason for recusal was the perception of bias. The Tribunal was confident that it could properly hear the case without bias, even if the claimant was not convinced of that. In principle, it would then have been possible for the claimant to have received a fair trial from an impartial tribunal.
33. Mr Allen recognised that there was this distinction between the Bennett case and this case, but he submits that it is not a material one. It is now well established that the test for apparent bias is whether "the fair minded and informed observer, having considered the relevant facts, would conclude that there was a real possibility of bias": see Porter v Magill [2002] 2 AC 357 per Lord Hope, para.103. He says that once the Tribunal had expressed the view that there was a perception of bias, an informed observer would have regard to that factor and would, in the light of it, inevitably conclude that there was a perception of bias.
34. Again, we do not agree. We doubt whether the reversal of an initial decision that there was apparent bias is even a factor reinforcing any such perception by an informed observer. Even if it is, it is in our view certainly not decisive of the outcome.
35. It follows that in the normal way this would be a case for remission. However, Mr Allen had one final arrow in his armoury. He submitted that whatever the merits of the original case alleging bias, there are now factors which have emerged since and which decisively establish the appearance of bias. The claimant (who for this purpose must be identified with her husband) has effectively been the whistle blower, drawing the attention of the authorities to the misconduct of the employment judge. That has, no doubt, caused him distress and anxiety.
36. Furthermore, as we learnt today, that has led to him being reprimanded (although we are not quite sure by whom.) Moreover, it appears that even in the last week as a result of the claimant drawing these matters to the attention of the authorities, the employment judge has been prevented - whether permanently or temporarily is not clear - from sitting on the Review Panel of the Legal Services Commission.
37. Mr Allen submits that whether the Tribunal could in fact now hear this case free from bias is not to the point; the test adumbrated in the Magill case is plainly met. Any informed observer would inevitably conclude that there was a real possibility that the Tribunal would be biased. In those circumstances, it would be appropriate for the EAT itself to make the decision which would inevitably have to made on remission in any event.
38. Mr Brown realistically accepts that if that is an inevitable decision, then the appeal must succeed and we should remit the case to a fresh tribunal. However, he contends that it is not a foregone conclusion that the tribunal would have to recuse itself. He points to a number of matters which suggest that they might not have to do so.
39. First, he suggests that the claimant - or more accurately her husband - is not a true whistleblower; he is not motivated by a concern for the public interest but rather is seeking to pursue his antagonistic vendetta against this particular employment judge. That may be so, although Mr Da'Bell denies it, but his motives do not affect the question whether there may be an appearance of bias. Indeed, if anything, if the tribunal perceived him to be acting out of such ill motive, it may be said to reinforce the case that there is a real possibility of bias.
40. Second, he understandably emphasises that considerable cost has been incurred on this case so far, and to abort it when it is more than half way through would involve a considerable waste of private and public money. However, there is authority that this is not a factor which can be taken into account where apparent bias is concerned. In AWG Group v Morrison , to which we have made reference, the Court of Appeal said that disqualification for apparent bias "is not a discretionary case management decision reached by weighing various relevant factors (such as inconvenience, costs and delay) since there was either a real possibility of bias or there was not"(para. 6).
41. Third, Mr Brown submits that the employment judge and the lay members have said in terms that they can hear the case free from bias, and that there was no evidence to show that they were in fact influenced by any hostility towards the claimant. But that cannot be relevant where apparent as opposed to actual bias is concerned. The vantage point is the informed observer, not the subjective views or perceptions of the parties.
42. Having considered these submissions we have each of us unanimously come to the conclusion that in the circumstances of this case, it is not now possible for the claimant to have confidence in the hearing continuing before the same Tribunal. Putting ourselves in the position of the well informed observer, we think that the only possible conclusion is that there would be a real possibility of bias if this case were it to continue before the same employment judge.
43. We would only add that in addition to the matters which we have identified, it seems to us that an additional factor weighing in favour of recusal is that, albeit for the best of motives, the employment judge and the regional employment judge did, in our view, impliedly misrepresent the true reason for the recusal in the first place. It was in reality his personal difficulties which made it difficult for him properly to consider any case rather than his belief that the matters identified by the claimant justified recusal on the grounds of the appearance of bias in her particular case. In our judgment this would justifiably give the claimant a lack of confidence in the employment judge and would be a factor weighing with an informed observer.

Disposal

44. There has been a catalogue of procedural errors in this case. None is of the parties' own making. However, for reasons we have given, we uphold the appeal and reluctantly direct that there will have to be a fresh hearing before a different tribunal. We have every sympathy for the NSPCC in particular since they are the unsuccessful party who have already incurred considerable costs with respect to this case and wish to see it brought to a speedy conclusion. They have been poorly served through no fault of their own. But that cannot be a basis for rejecting this appeal.