Tue, 03 Dec 2013
By Gemma Roberts
The circumstances in which a Judge or a Tribunal Member might be requested or required to recuse themselves is considered by Gemma Roberts together with the relevant case law.
Most legal representatives will have faced a Tribunal who, for no fathomable reason, has set its face against the case being presented and is dismissive of every word uttered by the client, or will have come across a Tribunal who had previously found against the same client in particularly robust terms. What to do?
As legal advisors, the position is particularly tricky. An unsuccessful application for recusal could, at least on the face of matters, lose the client further favour with the Tribunal and incur wasted time and cost. But the notion of conducting a hearing before a biased tribunal is appalling to most advocates and will surely result in deeply dissatisfied clients.
The basic principles
There are, according to the Court of Appeal in Locabail (UK) Ltd v Bayfield Properties  IRLR 96), three types of bias:
- Actual bias, where the judicial decision maker allows his decision to be influenced by partiality or prejudice
- Bias giving rise to automatic disqualification, where the judicial decision maker is shown to have an interest in the outcome of the case, or where the outcome of the case could, realistically affect their interest (and is hence a ‘Judge in his own cause’).
- Real danger or possibility of bias, arising either from the relationship between the judicial decision maker and a party or witness, or from the conduct of the hearing. The test is objective, would a reasonable independent observer, in full possession of the facts, consider that there was a real possibility of bias, arising either from the relationship between the Judge or member and a party or witness, or the conduct of the hearing?
There are relatively few examples of the second category, ‘bias giving rise to automatic disqualification’.
- Hamilton v GMB (Northern Region)  IRLR 391: a lay member was a high-ranking official in UNISON. The claimant was branch secretary for the GMB and was disciplined for pursuing an alternative strategy for equal pay disputes to that adopted officially by the GMB and UNISON jointly; she brought a claim for victimisation. The EAT held that the legality of a policy adopted by the two unions was in issue, so any reasonable person would take the view, having regard to the position of the lay member within UNISON, and a natural desire to uphold the legality of that policy, that there was a real possibility of unconscious bias. The Tribunal should have recused itself.
- Peninsula Business Services v Rees [UKEAT/0355/08]: a part time Judge was in practice as a solicitor. Her firm advertised itself as offering superior services to that provided by employment consultants [Peninsula being an example]. The EAT found that there was a clear implication that the Judge’s firm, and therefore she, had an interest adverse to that of the party; she should have recused herself.
Where there is a potential conflict of interest the judicial decision maker should alert the parties at the earliest opportunity and seek their consent to continue. The parties may waive their right to object to the Tribunal hearing the case but the situation requires careful consideration. An objection, so long as it is not deemed frivolous or tenuous, is likely to be accepted, but could result in delay and cost.
Known connection with a party or the cause in issue
Another scenario where a “real danger of bias” is possible is where a Judge or member has a known connection to a party or cause in issue.
The following authorities are illuminating as to where the line is to be drawn:
- Galloway v Barnet Enfield and Haringey Mental Health NHS Trust  EWCA Civ 1368: lay member was employed as HR director of another NHS Trust in the same locality. The Court of Appeal held that there was no basis for an allegation of apparent bias. Gross LJ emphasised that the Tribunal systems benefits from the knowledge of its lay members acquired through working in a particular industry. In my view, the situation could be different if the NHS Trusts had common policies that were under scrutiny in the Tribunal; the situation could then be analogous to Hamilton.
- Williams v Cater Link UK [UKEAT/0393/08]: a full time Judge instructed Counsel for one of the parties whilst he had been in practice. There was held to be no perception of bias. In my view, if the Judge was part-time, the outcome may be different, depending upon the frequency of the instructions and the extent or proximity of the professional relationship.
- Bhardwaj v FDA (UKEAT/0157/11): an individual respondent was, whilst the case was proceeding, appointed a lay member of employment tribunals in the region in which the case was being heard. The EAT held that an application to recuse should have been accepted as the lay members on the panel could reasonably be expected to have a different attitude towards a person with whom they might expect to sit as a colleague in future.
Expressing views on the case
In practice, one of the more common situations in which an application for recusal may arise is where the Judge or Tribunal expresses forthright views upon the evidence or issues prior to the conclusion of the case. As the following authorities highlight, there is a distinction between the Tribunal or Judge forming a ‘concluded view’ or merely expressing a ‘preliminary view’. Only the former presents a ‘real danger of bias’ and should give rise to a recusal.
- Peter Simper and Co Ltd v Cooke  IRLR 19: the Judge made a series of comments during the cross examination of the claimant that would reasonably have been understood by an impartial onlooker as meaning that he had formed a concluded view hostile to the employers before they had given evidence. The EAT found that the matter should be remitted to a fresh tribunal.
- Jiminez v London Borough of Southwark  EWCA Civ 502: towards the end of the evidence, the Judge expressed the tribunal’s preliminary view that the respondent’s treatment of the claimant had been ‘appalling’ and encouraged the parties to settle. The Court of Appeal held that a premature expression of a concluded view may amount to an appearance of bias but, there is no reason why a strongly expressed view cannot be a provisional view, leaving it open to the party criticised to persuade the tribunal why that view was wrong.
- Ross v Micro Foods Ltd (UKEAT/0304/09): a lay member showed intemperate conduct and discourtesy by her body language and gestures (nodding and making inappropriate sounds and clearly displaying impatience with questions and an approval of and agreement with answers being given). The EAT found that, notwithstanding the intemperate conduct and discourtesy, or that the Judge had felt it fit to raise the matter with her in private, there was not evidence of a closed-mind or pre-judgment on her part and hence there was no real possibility of bias.
- Greenaway Harrison Ltd v Wiles  IRLR 380 EAT: after making an award of compensation to the claimant, the Judge commented to the members “that will teach them not to settle when I tell them to”. The EAT held that the comment could not justify a finding of a ‘real danger’ of bias and was, if true, no more than a causal remark about the result of the case.
The overall approach
The Court of Appeal in Ansar v Lloyds TSB Bank Plc  EWCA 1462 approved a summary of principles given by Burton J in the EAT in relation to Employment Tribunals:
- The test is whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased
- If an objection is made, the Judge has a duty to consider the application and exercise judgment upon it; it is as wrong to yield to a tenuous or frivolous application as to ignore an objection of substance
- It is important for justice to be done, but also that judicial officers discharge their duty to sit and do not accede too readily to suggestions of bias, so as to encourage parties to believe that seeking disqualification of a judge, their case may be tried by someone thought more likely to decide in their favour
- The mere fact that a judge earlier in the case, or in a previous case, commented adversely on a party or witness, or found their evidence to be unreliable would not, without more, found a sustainable objection
- Parties cannot assume or expect that findings adverse to a party in one case entitle that party to a different judge or tribunal in a later case, something ‘more’ must be shown
- Tribunals need ‘broad backs’, especially where litigants are well aware that to provoke actual or ostensible bias can achieve what an application for an adjournment may not
- If there is any real ground for doubt, it should be resolved in favour of recusal.
In Ansar, Burton J gave the following guidance as to when a “real danger of bias” may arise:
- There is a personal friendship or animosity between the Judge or panel member and a member of the public involved
- The Judge or panel member is closely acquainted with any member of the public involved, particularly if that person’s credibility is significant
- The Judge has previously rejected the evidence of a person involved in outspoken terms so as to throw doubt on his ability to hear that person’s evidence with an open mind on a later occasion
- The judge has expressed views on the issues in question in extreme and unbalanced terms, so as to throw doubt on his ability try the issue with an objective judicial mind
- Any other reason for there to be real grounds to doubt the ability of the Judge to ignore extraneous considerations, prejudices, predilections and bring an objective judgment to bear on the issues.
In every case there is a fine judgment to be made as to whether an application for recusal, entailing allegations of bias, is appropriate. In Bennett v London Borough of Southwark  IRLR 407 the Court of Appeal held that a tribunal had been wrong to recuse itself after the claimant’s black representative accused the tribunal of discrimination for failing to accede to his request for an adjournment, asserting “If I were a white barrister I would not be treated in this way”. The Court of Appeal explained that a Tribunal should not be aborted until a “serious endeavour has been made to defuse the situation”. If serious allegations are made, the representative should be required to justify them (and if justified, recusal seemingly must follow) or withdraw them. If the comments are not withdrawn, however, the tribunal is required to consider where the balance of justice lies: public expense and the cost and inconvenience of the other party may require the Tribunal to proceed, so long as a fair trial is still possible.
In summary, if the Judge or member has an interest in the outcome of the case, the interest should be made known and an opportunity given to the parties to request that the tribunal recuse itself. The test when considering whether there is a real danger of bias is whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. The mere fact that a judge earlier in the case, or in a previous case, commented adversely on a party or witness, or found their evidence to be unreliable, would not, without more, found a sustainable objection and parties cannot assume or expect that findings adverse to a party in one case entitle that party to a different judge or tribunal in a later case; something ‘more’ must be shown. There must be a demonstration that a “concluded view” has been formed.
If an objection is made, the Judge has a duty to consider the application and exercise judgment upon it; but it is as wrong to yield to a tenuous or frivolous application as to ignore an objection of substance.