Bias

Case 6: The facts

During the hearing of her claim, which had been adjourned because of her ill health, Mrs Da’Bell alleged that the tribunal had been biased. While her allegation was being considered, it came to light that a complaint had been made about the judge to the Solicitors Disciplinary Tribunal; because of this, the judge recused (removed) himself from the case, but did not explain the reason for this or give the employer a chance to comment on it. When the Lord Chancellor said no action would be taken against him, the judge decided that he should continue to hear the claim after all.

The ruling

The Employment Appeal Tribunal (EAT) held that the judge had acted unlawfully both in recusing and in reinstating himself; the decision should have been made by the full tribunal, not the judge alone, and it is the whole panel that is recused in such situations. Furthermore, the parties in the case should have been allowed to make representations.

The EAT said that, although initially the tribunal may have been able to continue without any allegation of bias, in the wake of the complaints made by Da’Bell an informed observer would now say that there was a real possibility of bias.

The case was sent to a different tribunal for hearing.