PRACTICE AND PROCEDURE – Bias, misconduct, procedural irregularity.
On the third day of a difficult Full Hearing and after a number of applications by the Claimant’s counsel had been refused, correctly, by the Tribunal, an adjournment was granted so that the decisions could be explained to the Claimant. Thereafter counsel made further application for an adjournment for the purpose of filing an appeal to the Employment Appeal Tribunal. The Employment Judge mis-heard counsel and thought that the Tribunal had been misled as to the reason for the earlier adjournment. However, when conveying to counsel that there was no need to mislead the Tribunal as no offence would have been taken had leave to appeal been sought, the Judge used inappropriate and intemperate language, including the word ‘lie’. The Claimant contended that this had raised a real possibility of apparent bias.
Held: In the particular circumstances, the fair minded informed observer would conclude that the Judge’s remark, while intemperate and inappropriate, did not raise any general or real possibility of the appearance of bias. The case did not involve the kind of incidental remarks and unwarranted injections of sarcasm that had been the feature of the successful apparent bias claim in El Faragy v El Faragy and Ors [2007] EWCA Civ 1149.
[2018] UKEAT 0252 – 16 – 2509
Bailii
England and Wales
Employment
Updated: 29 December 2021; Ref: scu.632225