Suggestion of lying did not show bias, says tribunal

Telling the claimant’s barrister there was no need to “lie” did not demonstrate that the judge was biased, says the Employment Appeal Tribunal (EAT) in Balakumar v Imperial College of Health Care NHS Trust UKEAT/0252/16. 


Part way through the hearing of her unfair dismissal and discrimination claims, Balakumar was granted an adjournment so that her barrister could explain the tribunal’s decision to refuse an application to admit additional evidence. 


When they returned from that discussion, the barrister said she was going to request an adjournment to file an appeal against the decision not to admit the evidence. 


The employment judge thought she was talking about the adjournment they had just had and told the barrister that she did not need to “lie” about the reason. When she realised her mistake, she apologised. 


The tribunal went on to dismiss all Balakumar’s claims and she appealed to the EAT, arguing that the tribunal had shown bias. 


An appeal on the grounds of bias will succeed if it can be shown that a “fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the Tribunal was biased”. 


The EAT said that the use of the word “lie” was both inappropriate and regrettable, but was based on an error that was promptly acknowledged and so did not raise a possibility of the appearance of bias.

www.bailii.org/uk/cases/UKEAT/2018/0252_16_2509.html