EAT Practice and Procedure : Bias, Misconduct and Procedural Irregularity
Apparent bias:
Employment Judge’s interventions giving rise to an appearance of bias. In particular, his questions of the Appellant’s first witness lasted some 1 .5 hours, compared to the 1 hour of cross-examination by the employee’s legal representative. His interventions included reminding the witness of her oath in a manner more suggestive of cross-examination than simply a clarification of the meaning of the oath. Further interventions included calling for a document to be adduced into evidence by the Appellant, apparently to make good a point for the employee’s case that the employee was not in fact seeking to make herself. Further exchanges with another of the Appellant’s witness suggested that the Employment Judge was cross-examining the witness rather than simply seeking to clarify her evidence (i.e. pushing for a ‘yes or no’ answer; putting a point some 4-5 times).
Applying the test in Porter v Magill [2002] 2 AC 357, HL, that, having ascertained the relevant circumstances, the court should ask itself whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased, and allowing that those circumstances might include a certain degree of confusion and uncertainty in the Appellant’s case and in its witnesses’ answers, the EAT considered that the Employment Judge in this case had crossed the line and descended into the arena such as to cause the fair minded and informed observer to conclude that there was a real possibility that the tribunal was biased.
Appeal allowed. Case remitted to new Employment Tribunal for re-hearing.
Eady QC HHJ
[2014] UKEAT 0165 – 14 – 1610
Bailii
England and Wales
Employment
Updated: 24 December 2021; Ref: scu.539616