EAT Practice and Procedure : Bias, Misconduct and Procedural Irregularity – The Employment Judge held a Pre-Hearing Review on 6 December 2012 on the question of whether the Claimant had a disability. He heard evidence and submissions. He reached a decision, namely that the Claimant was disabled, and announced that orally at the end of the hearing. He gave no reasons, orally intending, it seems, that the reasons be given in writing. The tape of the hearing was lost. The Employment Judge indicated that he could no longer give reasons as he could no longer remember part of the case and there would need to be a re-hearing of the issue as to whether the Claimant was disabled.
He then conducted the re-hearing himself on 19 June 2013. He heard evidence and submissions and reached the same conclusion as he had on the earlier occasion. In his written reasons, he stated that he had reached a firm conclusion on the issue on 6 December 2012. He also indicated that he did not need to recuse himself from the hearing on 19 June 2013 as he had not given an indication of his conclusion and the rule against the appearance of bias did not reply.
In the circumstances, a fair-minded observer, knowing the facts, would consider that there was a real possibility of bias at the hearing on 19 June 2013. The Employment Judge had announced a firm conclusion – not a provisional view – at the hearing on 6 December 2012. In those circumstances, a fair minded observer would consider that there was a real possibility that the Employment Judge could not consider the issue impartially on 19 June 2013 but would be bound to be influenced by his earlier decision.
Lewis J
[2014] UKEAT 0497 – 13 – 2003
Bailii
England and Wales
Employment
Updated: 04 December 2021; Ref: scu.526523