United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR SIMON PRITCHARD (of Counsel) Appearing under the aegis of the Bar Pro Bono Unit
For the Respondent	MR DANIEL TATTON-BROWN (of Counsel) Instructed by Messrs Morgan Cole Solicitors Bradley Court Park Place Cardiff South Glamorgan CF10 3DP


 


SUMMARY

PRACTICE AND PROCEDURE: Bias, misconduct and procedural irregularity

The Appellant alleged bias on the part of an Employment Judge and contended that he erred in rejecting his application to recuse himself.

The outcome of the appeal raised two contested issues of fact: whether information regarding the past connection between the Employment Judge and a witness had been given before or after the parties agreed in writing that the hearing could continue with the ET as then constituted (the 'agreement') and whether the Employment Judge had private conversations with the Respondent's counsel.

Having heard evidence from the Appellant and counsel and solicitor for the Respondent and considering all the relevant material including the observations of the Employment Judge and the members of the ET, the EAT were satisfied that the Employment Judge disclosed his past connection with the witness before the waiver agreement was entered into and that no private conversations took place between the Employment Judge and the Respondent's counsel.

Whilst the past connection with a witness gave the appearance of bias the right to object was effectively waived by the Appellant entering into the agreement. The relevant steps outlined in Jones v Das Legal Expenses Insurance Co Ltd [2004] IRLR 218 were complied with. The appeal was dismissed


 


THE HONOURABLE MRS JUSTICE SLADE

1. Mr Adamson appeals from the decision of an Employment Tribunal ('ET') sitting in Cardiff entered in the Register on 20^th June 2009 refusing his application that Employment Judge Thomas ('EJ Thomas') recuse himself from continuing to hear his claims of unfair constructive dismissal and direct and indirect race discrimination, victimisation and harassment contrary to the Race Relations Act 1976 ('RRA'). These proceedings under case number 1602885/2008 were commenced on 17^th April 2008. The substantive hearing of the Appellant's claims which took place between 14^th and 22^nd April 2009 is currently part heard and is due to resume on 15^th March 2010 for a further seven days. The application which is the subject of the appeal before us was made by the Appellant on 23^rd April 2009 on the basis of apparent bias on the part of EJ Thomas ('the recusal application').
2. Two grounds of appeal have been permitted to proceed following a Rule 3(10) hearing before HHJ McMullen Q.C. on 11^th November 2009. These are that the EJ should have recused himself because apparent bias was established by:

(1) a connection between EJ Thomas and one of the Respondent's witnesses, Jason Williams; and

(2) an allegation that EJ Thomas had two private conversations with counsel acting for the Respondent.

In considering the first of these grounds of appeal we also consider whether any apparent bias caused by a connection between EJ Thomas and Jason Williams had been effectively waived by the Appellant by agreeing that EJ Thomas continue to hear the case. That agreement was reduced to writing in a document signed by the Appellant and X, counsel for the Respondent on 14^th April 2009 'the agreement'. The agreement was in the following terms:

"Following a discussion between the parties and the Tribunal as to the possibility of either Employment Judge Thomas or Mr Clifford Layton-Jones recusing himself by reason of his knowledge of the Respondent's witnesses (in particular Jason Williams) both parties hereby consent to proceed with the hearing before the Tribunal as constituted provided that Jason Williams' evidence at paragraphs 8, 15, 16, 17 and 22 shall not be heard by the Tribunal on account of being in dispute. The balance shall be taken as accepted.

This is without prejudice to any future as yet unknown information pertinent to bias.

The Claimant confirms there no allegation of race discrimination against Jason Williams."

The timing against X's signature is 11.40am and against the Appellant's 11.42am.

3. The Appellant was formerly a PhD student at the Respondent university and was employed as an IT expert. The history of the Appellant's employment with the Respondent and of earlier litigation between the parties is not material to consideration of this appeal.
4. Issues of fact are at the heart of this appeal. Accordingly appropriate orders were made by HHJ McMullen Q.C. in accordance with the guidance given by Lindsay P in Facey v Midas Retail Security Ltd [2000] IRLR 812 which was approved by the Court of Appeal in Stansbury v Dataplus plc [2004] IRLR 466 at paragraph 25. The Appellant made an affidavit in support of his allegations on which EJ Thomas and the lay members of the ET, Mr C L Jones, Mr Ling and Mrs Pridham, commented in writing. The Appellant gave evidence and was cross-examined in the hearing before us. Counsel, X, and solicitor, Ruth Clacey-Roberts, who attended the hearing before the ET for the Respondent made affidavits and attended the hearing before us to give evidence and were cross-examined. Exhibits to their affidavits included notes of the hearing taken by X and Mrs Clacey-Roberts. The Appellant questioned whether all of these were made contemporaneously. Whilst the Appellant was not represented at the hearing before the ET, in the appeal before us he was represented by M  Pritchard and the Respondent by Mr Tatton Brown. The documents before us ran to 537 pages.

The law

5. The principles of law applicable to apparent bias and waiver are well established and were not in dispute. These were conveniently summarised by Elias P (as he then was) in Hamilton v GMB (Northern Region) [2007] IRLR 391 at paragraph 29.
6. The appropriate test in determining an issue of apparent bias is whether the fair-minded and informed observer, having considered all the relevant facts, would conclude that there was a real possibility that the tribunal was biased. (Porter v Magill [2002] 2 AC 357 at paragraph 103 following the analysis of the Court of Appeal in Re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700).
7. A court considering an allegation of apparent bias 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. An appeal court is in as good a position as the original court to assume the vantage point of the fair-minded and informed observer. It must itself make the assessment.
8. 'The relevant circumstances' are:

"…those apparent to the court upon investigation; they are not restricted to the circumstances available to the hypothetical observer at the original hearing …."

(Flaherty v National Greyhound Racing Club Ltd [2005] EWCA Civ 1117; [2005] AER (D) 70 (Sep) at para 27 per Scott Baker LJ).

9. The Respondent accepts that in principle it is irregular for there to be communications between a judge and one party from which the other party is excluded and that the existence of such communications is liable to give rise to apparent bias (Gill v Humanware UKEAT/0312.08/CEA at paragraph 14).
10. Apparent bias can be waived. The Court of Appeal in Jones v DAS Legal Expenses Insurance Co Ltd [2004] IRLR 218 at page 222 paragraph 31 set out the essential requirements for waiver. These are those stated in paragraph 15 of Locabail (UK) Ltd v Bayfield Properties Ltd [2000] IRLR 96:

"…any waiver must be clear and unequivocal, and made with full knowledge of all the facts relevant to the decision whether to waive or not."

Paragraph 26 of Locabail reads:

"If, appropriate disclosure having been made by the judge, a party raises no objection to the judge hearing or continuing to hear a case, that party cannot thereafter complain of the matter disclosed as giving rise to a real danger of bias. It would be unjust to the other party and undermine both the reality and appearance of justice to allow him to do so."

11. The Court of Appeal gave guidance as to the steps which may need to be taken to deal with apparent bias and waiver. These were not a definitive checklist. At paragraph 35 the Court said:

"(iv) A full explanation must be given to the parties. That explanation must detail exactly what matters are within the judge's knowledge which give rise to a possible conflict of interest. The judge must be punctilious in setting out all material matters known to him. …

(v) The options open to the parties should be explained in detail. These options are, of course, to consent to the judge hearing the matter, the consequences being that the parties will thereafter be likely to be held to have lost their right to object. The other option is to apply to the judge to recuse himself. The parties should be told that it is their right to object, that the court will not take it amiss if the right is exercised and that the judge will decide having heard the submissions. They should be told what will happen next. If the court decides the case can proceed, it will proceed. If on the other hand the judge decides he will have to stand down, the parties should be told in advance of the likely dates on which the matter may be re-listed.

(vi) The parties should always be told that time will be afforded to reflect before electing. That should be made clear even when both parties are represented. If there is a litigant in person the better practice may be to rise for five minutes."

At paragraph 36 the Court held:

"As to the second question whether or not he had full knowledge of all the facts relevant to the decision, we have also found this difficult. Waiver would never operate if 'full facts' meant each and every detail of factual information which diligent digging can produce. Full facts relevant to the decision to be taken must be confined to the essential facts."

Evidence relevant to the appeal

12. The substantive hearing was listed to start on 14^th April 2009 before EJ Thomas, Mr Ling and Mr C L Jones.
13. At the commencement of the hearing on 14^th April 2009, EJ Thomas informed the parties that Mr C L Jones sat on the Council for the Respondent university but had not done so in the past two years. Mr C L Jones recognised the name of one of the Respondent's witnesses, Professor Iwan Davies, but could not put a face to the name. EJ Thomas asked the parties to think about the matter. If either party objected to Mr C L Jones sitting, the alternatives were to proceed with one lay member rather than two or to try to obtain another lay member.
14. X then drew the attention of the ET to the fact that one of the Respondent's witnesses, Jason Williams, had in the past lived close to EJ Thomas and may have been a neighbour. She said "We understand that there was no social relationship, perhaps neighbourly 'hellos' ".
15. The first factual dispute between the Appellant on the one hand and the EJ, lay members of the ET and legal representatives of the Respondent on the other is whether EJ Thomas informed the parties of the extent of his connection with Jason Williams before the agreement was signed or whether material information was divulged to the parties after signature. If the former, subject to the issue of whether there had been private communications between EJ Thomas and X about the case, the document would constitute an effective waiver of any appearance of bias. If the latter, the Appellant had retained the right to object to EJ Thomas continuing to hear the case.
16. EJ Thomas tried to recall whether he knew Jason Williams. At paragraph 4 of his affidavit the Appellant wrote that EJ Thomas informed the parties:

"it is possible that he could know of a Mr J Williams, but he cannot think of any involvement, friendship, connection, or personal dealings with this individual …and asked me to consider and draft a document to say I was happy for him to carry on with his very limited knowledge of a Mr J Williams."

17. The Appellant stated that EJ Thomas pointed out difficulties in finding another EJ to hear the case because of their involvement with earlier stages of his case.
18. The Appellant produced a copy of a document in his handwriting which he said he prepared on 14^th April 2009. It bears the time 11.36am and reads as follows:

"I am happy to carry on with the case as the judge has indicated he has no personal or professional relationship with a Mr Jason Williams and family. This is also includes the fact that Mr Clifford Jones has no such relationship. This agreement is subject to the following part… of Mr Jason Williams' statement being excluded. If there is any further or new information arising apart from what is known then I am not forfeiting any of my rights to abort this case with immediate effect."

The Appellant's document was disclosed to the Respondent late the day before the hearing before us. When asked in cross-examination why he did not disclose the document earlier he said that he knew it was not signed and thought it was not relevant. However he said that he gave it to X on 14^th April 2009. She gave it back to him saying that she was not going to accept it. X wrote a new agreement and added references to the contested paragraphs of Jason Williams' statement. The Appellant said that the passage reserving his rights if new evidence of bias emerged was added at his insistence. He then signed the agreement at 11.42am.

19. Shortly after 1pm on 14^th April 2009 Mr C L Jones recused himself because he knew a witness for the Respondent. The Appellant said in evidence that after Mr C L Jones recused himself on 14^th April 2009 EJ Thomas said that the Appellant was no longer bound by the agreement. The hearing recommenced on 15^th April 2009 with a different lay member, Ms Pridham in place of Mr C L Jones.
20. In his affidavit the Appellant stated that it was not until he was being cross-examined on 20^th April 2009 did it become apparent that EJ Thomas did in fact know Jason Williams 'a lot more than he let on before' the agreement was signed. The Appellant was cross-examined on his assertion that he had made allegations of race discrimination in a meeting on 7^th November 2007. The EJ had asked whether there were handwritten notes of the meeting from which a typescript had been prepared. The notes from which the typescript had been prepared made by Jason Williams were referred to at this point in the hearing. The Appellant alleged that EJ Thomas said:

"If I had to choose between your statement and that of Mr Jason Williams, I would choose that of Mr Williams. I can vouch for his credibility and he will not make these statements up. I have known him for 20 years as a family friend and we had a meal together not so long ago. I provided him with a reference for his post at Swansea University. I also offered him advice of some issues he was facing at Swansea University."

The Appellant claimed that it was not until on about 20^th April 2009 when Jason Williams' handwritten notes were called for by the EJ that he learned new information about the connection of EJ Thomas and Jason Williams of which he had not been informed before signing the agreement.

21. In his oral evidence the Appellant said that EJ Thomas stated on 14^th April 2009 that he knew Jason Williams vaguely as a neighbour and knew his parents. He said that on that day EJ Thomas did not inform the parties that he had a meal with Jason Williams seven or eight years ago, had given him employment advice and may have given him a reference which may have been in connection with employment at Swansea University. He maintained that these matters were not mentioned until 20^th April 2009.
22. By an email of 19^th April 2009 to the ET the Appellant complained of bias in that the "respondent would be the only party that would have been given the opportunity to present its case in detail".
23. By email of 23^rd April 2009 the Appellant asked EJ Thomas to step down because the Appellant 'had an imbalance and bias experience of the case…' 'The respondent was given four days in a six day hearing to cross-examine…'
24. Replying to a response by solicitors acting for the Respondent on 11^th May 2009 the Appellant contended that the agreement he had signed on the morning of 14^th April 2009 agreeing to EJ Thomas continuing to hear the case was "nullified … by the stepping down of Judge Clifford Jones at around 2pm".
25. When asked why he had made no reference to this new information when he wrote on 23^rd April and 11th May 2009 complaining of bias on the part of EJ Thomas in other respects the Appellant said:

"I could have made a lot of points in the communication."

26. On 30^th November 2009 EJ Thomas commented on the affidavit of the Appellant. He said that the exchange 'at which Jason Williams was identified as someone having knowledge of me occurred on one occasion only.' This was when X explained Jason Williams' background in some detail.
27. EJ Thomas wrote that between June 1978 and 1986 Jason Williams and his family lived three doors away from him. He visited the house on one occasion only in the early 1990s to give the witness's mother some legal advice. He did not see any of the family again until Jason Williams contacted him to ask for advice relating to employment. He met him in Cardiff over lunch some eight or nine years ago. He thought Jason Williams had recently left university and was seeking a reference. He could not be sure if it was for an application to the University of Swansea.
28. EJ Thomas commented that it was correct that he required a written agreement as to the admissibility of the evidence of Jason Williams. "If there had not been agreement I would have had to consider recusal…"
29. Mr Ling made a statement dated 5^th December 2009. He stated that it was made clear to both parties on day one that Judge Thomas knew the parents of Jason Williams some 30 years ago when they were neighbours.
30. Mr C L Jones wrote on 5^th December 2009 that at the commencement of the hearing on 14^th April 2009 it emerged that EJ Thomas had once been a neighbour of Mr Jason Williams' parents and had known him as a child. He remembered once having a meal with Jason Williams about seven years ago or more. Mr C L Jones was not involved in the hearing after 14^th April 2009.
31. X gave evidence and produced copies of her counsel's notebook showing notes she took on 14^th April 2009.
32. In her affidavit X deposed to the fact that at the outset of the hearing on 14^th April 2009 she raised with the ET Jason Williams' recollection of being a neighbour of EJ Thomas.
33. On reflection EJ Thomas recalled that he lived a few doors away from Jason Williams' parents and knew his father very well. He stated that he had a meal with Jason Williams a number of years ago but had not seen him since. Counsel's note in her notebook records that EJ Thomas said that he had known Jason Williams as a child, that he gave him advice about employment and may have given him a reference.
34. The Appellant said in evidence that X's notes could only have been written after 20^th April 2009.
35. In her affidavit counsel states that EJ Thomas said that his knowledge of Jason Williams might affect his view if he was to be the subject of criticism. He was concerned about the situation looking at it dispassionately even if Jason Williams' evidence was not central to the case.
36. EJ Thomas went through the key points in Jones v Das step by step with the Appellant. There was an adjournment for everyone to consider the position. After taking instructions counsel proposed that Jason Williams would not be called if there were to be no direct allegations against him.
37. There was a further adjournment to establish to what extent the witness statement of Jason Williams was being challenged with the Appellant identifying any paragraphs which contained disputed evidence.
38. After an adjournment of about half an hour counsel informed the ET that the Respondent had decided not to call Jason Williams and not to seek to rely on the disputed paragraphs in his statement. The remaining paragraphs were agreed by the parties. EJ Thomas asked the parties to put their agreement into writing. The parties adjourned to draw up the agreement.
39. X prepared a written agreement in discussion with the Appellant, her solicitor being present at all times. At the Appellant's request she included the words:

"This is without prejudice to any further as yet unknown information pertinent to bias."

X signed the document at 11.40am and the Appellant signed the document at 11.42am.

40. In cross-examination X said that she did not have a recollection of seeing the agreement drafted by the Appellant which had been produced in proceedings for the first time before us.
41. The hearing continued. However at just after 1pm Mr C L Jones recused himself because he knew one of the Respondent's witnesses, Chris West.
42. The solicitor for the Respondent Mrs Clacey-Roberts took a full but not verbatim contemporaneous note of the proceedings. On the morning of 14^th April 2009 when counsel raised the issue of Jason Williams knowing EJ Thomas he said that he lived a few doors away from Jason's parents. He knew Jason Williams' father very well. He said that he met Jason about 10 years ago and they had a meal together but he had not seen him since. He then thought it was 7 or 8 years ago. EJ Thomas said that he thought it might affect his view of the case if Jason Williams is the subject of criticism.
43. X said that the Respondent would prefer to call Jason Williams but if the alternative was to lose the hearing dates the Respondent would proceed without him.
44. Before asking his view, EJ Thomas said that he would explain the law to the Appellant. The relevant case was Jones v DAS. He went through the various considerations set out in that case. He considered whether the case could be allocated to another EJ and said that in this case that was not a possibility. He explained the options. If no application for recusal is made, the parties consent to the EJ hearing the case. However, the party loses their right to object thereafter. He told the Appellant of his right to apply for the EJ to recuse himself. If the EJ stands down the parties should be told of likely future dates.
45. The note made by the solicitor records that EJ Thomas said to the parties:

"You are both determined to avoid going part heard but if in the course of the hearing evidence regarding Jason Williams is required, criticism will arise. Very concerned as to the development of issues on the periphery which may cause problems. If on later examination, we have not considered this it would be a failing of this Tribunal. I do have a friendly relationship with Jason Williams, in that I have known him since he was a child. I may have given him a reference 7/8 years ago. I feel unhappy. I am confident in myself that I could put aside Jason Williams but it may cause concerns as to whether I could look at this dispassionately even if Jason Williams is not central."

The note records that the Appellant said of Jason Williams' evidence:

"You can put it aside and not look at his evidence. …. I am worried if this is revisited but if it is ignored it is OK."

He asked:

"Can you try to go through and identify the pieces of evidence that Mr Adamson objects to and whether they were dealt with in the judgment. I would want Mr Adamson to set out in writing his consent."

The ET adjourned at 10.55. X and the Appellant went through Jason Williams' statement to see which paragraphs the Appellant objected to.

46. The hearing resumed at 11.25. X confirmed that the Respondent was content not to rely on the paragraphs of Jason Williams' statement to which the Appellant took exception and to proceed without calling him.
47. EJ Thomas asked for a short statement setting out the terms on which the parties were prepared to continue. The ET rose.
48. X drafted a document which the Appellant signed at 11.42am. The agreement was in the terms set out earlier in this judgment and which are repeated here:

"Following a discussion between the parties and the Tribunal as to the possibility of either Employment Judge Thomas or Mr Clifford Layton-Jones recusing himself by reason of his knowledge of the Respondent's witnesses (in particular Jason Williams) both parties hereby consent to proceed with the hearing before the Tribunal as constituted provided that Jason Williams' evidence at paragraphs 8, 15, 16, 17 and 22 shall not be heard by the Tribunal on account of being in dispute. The balance shall be taken as accepted.

This is without prejudice to any future as yet unknown information pertinent to bias.

The Claimant confirms there no allegation of race discrimination against Jason Williams."

49. The Appellant started giving his evidence in chief. At 13.01 the hearing was adjourned for lunch but very shortly afterwards the ET returned. After some discussion and consideration by the EJ Thomas, Mr C L Jones recused himself as he knew Chris West one of the Respondent's witnesses. Over lunch a replacement member was found and the hearing recommenced on 15^th April 2009 with Ms Pridham sitting in place of Mr C L Jones.
50. Mrs Clacey-Roberts explained that she dictated her notes of the hearing in conjunction with those of X. She said that there was some tension between the accounts given by Jason Williams and EJ Thomas of their dealings with each other. She agreed that there was no reference in her note to EJ Thomas having given Jason Williams employment advice whereas there was a note to that effect in counsel's notebook. Mrs Clacey-Roberts said that they did not learn about advice given by EJ Thomas to Jason Williams' mother until they had seen his comments on the Appellant's affidavit. Mrs Clacey-Roberts agreed that during the cross-examination of the Appellant the EJ asked whether there were handwritten notes of the meeting of 7^th November 2007. The notes made by Jason Williams were handed to the ET on 20^th April 2009. The Appellant protested about this the next day.

Alleged conversations between EJ Thomas and X

51. In his affidavit the Appellant stated that on 15^th April 2009 EJ Thomas confirmed that he had:

"…discussed with the respondent barrister in person at the tribunal after the hearing on the first day. He said they had discussed how they see the case progressing and this was followed by further telephone conversations between the parties."

The Appellant observed that:

"My experience on the announcement and the handling of the case by Judge Thomas suggests that the discussion did not just involve the progress of the case , but it must have involved giving the respondent advice on how they should conduct the proceedings and what he would do to support their position…"

52. The Appellant alleged in his affidavit that:

"On Friday the 17^th and Monday the 20^th the employment judge made further reference to the conversations; he had previously with the barrister, explaining that the case going part heard and costs were some of the issues they had discussed."

53. EJ Thomas stated in his response to the Appellant's affidavit that he had no discussions with X regarding the case in the absence of the Appellant or at all. He had no telephone conversation with X nor did he give the respondent advice on how they should conduct the proceedings. On neither 17^th nor 20^th April 2009 did he refer to conversations with X about the case. There were no private conversations with X. On occasions the danger of a case going part heard with its associated increase in costs was mentioned.
54. Mr Ling could not accept that EJ Thomas would have spoken to the Respondent on his own. Ms Pridham wrote that she was absolutely certain that she saw no private conversations take place between EJ Thomas and X nor did she have any indication from either party that any such conversations might have taken place.
55. X deposed to the fact that at no time did she have a private conversation with EJ Thomas whether in person or by telephone about any aspect of the Appellant's case. Anything she said to the ET was in open court with her instructing solicitor and the Appellant present.
56. In her oral evidence X categorically denied that she had any private conversation with EJ Thomas. This was a professional slur which she rejected.
57. Mrs Clacey-Roberts stated that she was in X's presence (other than in comfort breaks) each day of the hearing. When they were together X did not have a private conversation with EJ Thomas nor was anything said on the second day of the hearing as alleged by the Appellant or on any other day to indicate that such a conversation had taken place.

Findings of fact relating to waiver

58. We reject the evidence of the Appellant that EJ Thomas did not inform the parties until after the first day that he knew Jason Williams and of the circumstances in which he had come into contact with him.
59. The Appellant stated in his affidavit that on 14^th April 2009 EJ Thomas had merely said "that he could know of a Mr J Williams". If this had been all that had been said, the question of recusal and the treatment of Jason Williams' evidence would not have arisen. Having regard to the wording of the agreement it is not surprising that in his oral evidence he said that EJ Thomas had said that he knew him vaguely as a neighbour and knew his parents.
60. The overwhelming evidence is that EJ Thomas informed the parties on 14^th April 2009 of the extent of his recollection of his dealings with Jason Williams. The EJ and the wing members of the ET as well as X and Mrs Clacey-Roberts gave evidence that EJ Thomas informed the parties that, as had been brought to his attention by X, Jason Williams and his parents had been neighbours in the past. The precise dates are immaterial. Whilst understandably the recollections of some who were present at the hearing is not as complete as that of others it is clear that all relevant information regarding any contact the EJ had with Jason Williams was given to the parties on 14^th April 2009 before the waiver agreement was entered into. Mrs Clacey-Roberts kept a very full note. X also kept a note in her counsel's notebook. The suggestion by the Appellant that X's notes were written after the event to in effect concoct a story is offensive and fanciful. We reject it. The notes are in sequence and show that X noted that EJ Thomas informed the parties that he knew Jason Williams' father well, that he had a meal with Jason Williams but not seen him since and that he gave him advice about employment and may have given him a reference. Mrs Clacey-Roberts noted that EJ Thomas said that he had known Jason Williams since he was a child. He had a meal with him 7 or 8 years ago and may have given him a reference at that time. EJ Thomas wrote that he was contacted to give Jason Williams employment advice. He gave that advice over lunch eight or nine years ago and agreed to give him a reference. He could not be sure if it was for an application for a job with the Respondent. The dealings he had with Jason Williams were not fresh in his memory. The fact that in responding to a request for comments on the allegations of bias by the Appellant, EJ Thomas recalled a connection with Jason Williams which he had not recalled or stated on 14^th April 2009 - giving Mrs Williams advice in connection with a minor motor accident - could not reasonably be regarded as material to the decision of the Appellant to agree that the EJ should continue to hear his case.
61. There is no evidential support for the allegation made by the Appellant that it was not until his cross examination on 20^th April 2009 when he asked to see handwritten notes made by Jason Williams of a meeting of 7^th November 2007 that the EJ revealed that he had the contact with him which other witnesses said was explained by him on 14^th April 2009. Mrs Clacey-Roberts kept a good note of the proceedings. It does not contain any reference to any such revelation on 20^th April 2009. It does contain a note that such information was given on 14^th April before the waiver agreement was entered into. In the waiver agreement the Appellant had insisted on express words reserving the right to ask the EJ to recuse himself in the light of 'any future as yet unknown information pertinent to bias'.
62. Although in his email on 23^rd April 2009, the day after the conclusion of the last day of the hearing the Appellant asked EJ Thomas to step down he did not allege that new information had been revealed about whether and to what extent the EJ knew Jason Williams. Nor was this point made when on 11^th May 2009 the Appellant asked the EJ to step down because he asserted that the waiver agreement was nullified by the recusal of Mr C L Jones. Further we reject the unsupported allegation by the Appellant that he was told by EJ Thomas that the recusal of Mr CL Jones nullified the waiver agreement. In the absence of evidence in addition to the assertion made by the Appellant we do not accept that the EJ would have continued to hear the case without the express written agreement of the parties which was in place.
63. Accordingly we find that the Appellant was given all the relevant information regarding any dealings between EJ Thomas and Jason Williams on 14^th April 2009 before he entered into the waiver agreement.
64. Mr Pritchard properly recognises that if we find as a fact that the Appellant's recollection that the EJ said he had private conversations with the Respondent's counsel in his absence or that he alluded to them was wrong then the issue of bias resulting from such conversations falls away. We have no hesitation in rejecting the Appellant's evidence that the EJ referred to having private conversations with the Respondent's counsel. We unhesitatingly accept X's evidence that no such conversations took place. The EJ also categorically denies that such conversations took place. The Appellant deposed in his affidavit that the EJ had spoken on 15^th April 2009 of such conversations with X. Even on his own evidence the Appellant made no complaint at the time. We condemn the making of such serious false allegations.
65. We had the opportunity of observing the Appellant, X and Mrs Clacey-Roberts give evidence. On the two material factual issues which form the basis for our decision on this appeal we unhesitatingly reject the Appellant's evidence.

Conclusion

66. In our judgment applying the test in Porter v McGill an objective and informed bystander would say that there was a real possibility of bias in EJ Thomas hearing the Appellant's complaints against the Respondent. The EJ knew a witness from the HR department of the Respondent. Although the parties and the EJ sensibly tried to reduce the possibility of difficulties arising by submitting his evidence in written form and by agreeing not to rely on controversial passages, nonetheless there was a risk that there would be a perception that the EJ would favour the party with whom he had some albeit weak connection.
67. We are reinforced in our view that the relationship between EJ Thomas and Jason Williams gave rise to a real possibility of bias by awareness of the judge himself that this could well be the case. According to the note made by Mrs Clacey-Roberts on 14^th April 2009 he said that:

"You are both determined to avoid going part heard but if in the course of the hearing evidence regarding Jason Williams is required, criticism will arise. Very concerned as to the development of issues on the periphery which may cause problems. If on later examination, we have not considered this it would be a failing of this Tribunal. I do have a friendly relationship with Jason Williams, in that I have known him since he was a child. I may have given him a reference 7/8 years ago. I feel unhappy. I am confident in myself that I could put aside Jason Williams but it may cause concerns as to whether I could look at this dispassionately even if Jason Williams is not central."

68. Accordingly we consider whether the Appellant effectively waived his right to object to EJ Thomas on grounds of bias. In our view the agreement signed by the Appellant at 11.42am on 14^th April 2009 did constitute an effective waiver. All the steps recommended in Jones v DAS were complied with. The Appellant was fully informed of the facts relevant to his decision. The options available to the parties were explained. Far more time was given to the Appellant than the five minutes referred to in DAS for an unrepresented litigant to consider his position. It seems that the Appellant, an intelligent PhD student, was sufficiently aware of his rights to prudently insist on reserving his rights to object to EJ Thomas if further hitherto unknown relevant facts emerged. EJ Thomas explained to the Appellant all the steps set out in DAS.
69. The Appellant waived his right to object to EJ Thomas hearing his case. His appeal from the rejection of his application that EJ Thomas recuse himself is dismissed.