Apparent bias as a result of ET Judge’s connection with her husband’s law firm

Tue, 03 Dec 2013

By Irvine Maccabe

Turmoil above Ann Summers*

The issue of apparent bias in the Jersey Employment Tribunal system is explored by Irvine Maccabe.

In September, the Royal Court of Jersey Samedi Division (oddly named, as it does not sit on a Saturday) delivered a Judgment in the appeal concerning Newtel Limited v James Devaney. In the Tribunal proceedings, Mr Devaney claimed unfair dismissal and commission payments. The judgment appealed from was the decision of the Jersey Employment Tribunal Chairman, following an interlocutory hearing, not to recuse herself conducting the upcoming trial on the ground of her apparent bias. In trying unfair dismissal cases, it sits as a panel of three.

Basis of legal challenge

The appeal was advanced by the employer on two grounds; firstly under the Human Rights (Jersey) Law 2003 (“the Human Rights Law”) specifically Article 7, which makes it unlawful for a public authority to act in a way which is incompatible with convention rights. As a public authority for these purposes, the Tribunal is required to act in accordance with Article 6 of the Human Rights Law, which provides that everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal.  The Royal Court found this was not engaged, possibly because it found as it did on the second ground: the second ground of the argument was based on the test in the House of Lords case of Porter v Magill [2002] 2AC 357 namely “Whether a fair-minded and informed observer having considered the facts would conclude that there was a real possibility that the tribunal was biased.”

Background

The case was originally assigned to the Deputy Chairman of the Tribunal because the Chairman’s husband is an equity partner in a Jersey law firm that provides employment law advice as one of its services. However, the Deputy Chairman considered that she had a conflict and promptly and properly recused herself. The Chairman, as the only other Tribunal judge in Jersey, took over the case despite the practice or policy of the Tribunal that she should not try a case involving her husband’s firm because it could, in her own words, give rise “to potential misunderstandings”.

The employer sought an alternative appointment, but was advised that despite legislative provision for the appointment of up to five Deputy Chairmen, each appointment had to go through a lengthy appointments procedure, estimated at some 6 months. The delay this entailed was a key factor in the Chairman’s decision not to recuse herself.

Court’s reasoning

The Royal Court referred to the overriding objective of the Jersey Employment Tribunal Regulations 2005, which was to deal with cases justly while ensuring, so far as practicable, that both parties are on an equal footing, that cases are dealt with in a manner proportionate to their complexity and importance and that cases are dealt with expeditiously but fairly while also saving expense. All of this is to be achieved with the assistance of the parties. The Royal Court, not surprisingly, concluded that the perceived integrity and impartiality of a Judge was crucial to the process.

At no point was there a contention of actual bias on the part of the Chairman. The central issue was therefore whether there was a possibility of the appearance of bias from the perspective of the fair-minded and informed observer who had considered all the facts. However, upon reading the transcript, the Deputy Bailiff did make this observation:

“…It is certainly apparent that rightly or wrongly the Representor’s challenge to the constitution of the Tribunal was causing irritation to the Chairman...”

Before the Tribunal, the employer argued that the Chairman’s connection to her husband’s law firm by virtue of her marriage, and his equity status entitling him to a share of all profits, including those of the employment department, gave rise to the appearance of bias. The Chairman rejected this on the basis that the Applicant’s fees would accrue to her husband’s firm, win or lose, and the Tribunal had no power to award costs. The Royal Court did not agree with this, saying “it did not stand up to scrutiny”. It observed that even if fees had been paid in advance, success or failure would be likely to have an impact more generally on her husband’s firms’ reputation in the employment advice and services market, and there thus remained the potential for the appearance of bias in the fair minded and informed observer.

Despite being as anxious as the Chairman to avoid delaying the substantive proceedings, the Royal Court found that this disruption was the fault of the Jersey government by either failing to appoint a further Deputy Chairman in accordance with the Regulations, or by failing to structure the legislation so as to afford power to someone to appoint the equivalent of a Commissioner or Deputy Chairman for the purposes of a particular case.

The problem arose in the first place because the Tribunal Chairman and Deputy Chairman were appointed from Jersey’s close-knit legal community, making it only a matter of time before both were likely to be conflicted in a case.

Outcome

The Royal Court allowed the appeal, finding there was a real possibility of an appearance of bias. It’s solution was, however, hardly satisfactory: it ordered that the Representor was entitled to an order that Chairman recuse herself but that she would be, in effect, unrecused, provided the Applicant gave an undertaking within 28 days not use the Chairman’s husband’s firm in the further pursuit of his case.

By so ordering, the Applicant was placed in the plainly unfair position, because of the default of the Jersey government, of not being able to use the solicitors of his choice. One may have thought that was a cornerstone of the judicial system. The Respondent was left with a Chairman irritated at its temerity in (successfully) challenging her suitability to adjudicate in its cause, and whose right to conduct the trial was left in the hands of the Applicant to, in effect, veto the finding of existing apparent bias. Not much of an application of the overriding objective there, it may be thought. If it is unfair to both, it meets the overriding objective?!

The story, however, has a condign ending for the interests of justice over administrative inconvenience and/or incompetence. The Applicant stoutly declined to give the required undertaking and so the case remains in limbo until the government of Jersey gets round to appointing a further Deputy Chairman. Will it be a lawyer from the close-knit community? Let’s see.

*For those who are perplexed as to the superscription to this article, the Jersey Tribunal sits in rooms directly above the St Helier branch of Ann Summers. It is not difficult to find, if you know where to look.

Please click here to view Irvine Maccabe's profile

[Irvine Maccabe has provided advice to a number of Jersey Law firms for many years on employment issues before the Jersey Employment Tribunal and the Royal Court and has appeared before the Jersey Employment Tribunal on a number of occasions]

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