EAT PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
A lay Member of the Employment Tribunal hearing a claim of unfair dismissal by a former employee of the Appellant (A) had a son who worked for A, was related by marriage to a person who featured in the case (according to the ET1 and ET3), lived close to A’s site, and knew a number of people who worked at the site. He did not declare this at the outset of the case, though the Employment Judge raised with the parties the fact that the other lay member had instructed counsel for the A in a case for her former employers. When A discovered this, and was told that the lay member had made disparaging remarks to his son about one of A’s witnesses, it applied to the ET to recuse itself. The ET did not tell the parties (until delivering its judgment) what, of the alleged facts, the lay member accepted. A subsequent application for a review was rejected as being without prospect of success.
Both decisions were appealed. The EAT held that the well-informed fair-minded observer would think there was a real risk of bias, since it felt bound to conclude on probability that the lay member did not (as he claimed) raise his relationship with A and that his son, and a witness related to him, worked for A on the day of the hearing, in discussions with the EJ; and it followed that the observer would think he was consciously hiding the information, such that there was a real risk of bias.
The EJ indicated that he had known at the time the information which later came to light, he might well have made a different decision. The lay member had since unfortunately reacted to the allegations by accusing counsel for A as having no motive other than to cause him embarrassment, and alleged a conspiracy against himself even though he acknowledged this was without evidential foundation, thereby demonstrating an hostility toward A that made it impossible for him to continue to hear the case. These further matters confirmed the decision to allow the appeals.
Some additional guidance given to assist Tribunals where lay members have knowledge of matters which might be declared.
Langstaff P, J
[2013] UKEAT 0347 – 12 – 2304
Bailii
England and Wales
Employment
Updated: 14 November 2021; Ref: scu.511052