Tribunal’s language suggested bias over question of costs

Case 5: The facts

Ms Oni brought claims of constructive unfair dismissal, race discrimination and victimisation against NHS Leicester City Care Trust. The hearing lasted 13 days.

The tribunal dismissed all the claims and made very critical comments about the claimant’s conduct of the case, strongly suggesting that an application for costs by the employer was likely to be successful.

The claimant asked the Employment Appeal Tribunal (EAT) to order the tribunal to stand aside and let a different tribunal decide the question of costs, because its choice of language would lead any reasonable bystander to think it had already made its mind up.

The ruling

The EAT agreed that although as a general rule, the tribunal hearing the case should also decide any application for costs, in this case the application for costs should be heard by a different tribunal. This was because the tribunal’s language raised legitimate concerns about the appearance of bias.

Just because a tribunal has criticised a claimant in strong terms, it does not follow that the same tribunal should not also decide any costs application.

However, in this case, the language chosen by the tribunal would have suggested to any fair-minded observer that it had already decided the issue before hearing argument from the parties.

Oni v NHS Leicester City Trust UKEAT/0144/12/LA