Bias in the Employment Tribunal

If you find yourself in an Employment Tribunal defending a claim and the Judge appears to be hostile to your case, it’s often the case that the word “bias” is mentioned.  For understandable reasons of judicial independence, its very hard however to claim that a Judge was biased and get the Judgment set-aside and the case considered by another Judge.  

To show bias a Tribunal must have pre-determined a decision it was required to reach and the test is whether a “fair minded observer” would consider there was a real danger of bias.

In an unusual decision (Rolec v Mrs J Georgiou) the Employment Appeal Tribunal (EAT) found that on the facts of this particular case, a Judge had indeed over stepped the line.

In the case the Claimant won the original Employment Tribunal and the Respondent employer appealed to the EAT arguing that the Judge’s conduct during the hearing had shown that he was biased. The Respondent asked for the case to be remitted to a different Tribunal.  The EAT went through the Grounds of Appeal and rejected most of the criticisms of the Judge (such as robust cross examination and other questioning) which fell within the legitimate remit of the Judge.

The EAT however found 3 particular areas merited specific criticism:-

1. The Judge had indicated a witness was in contempt of Court, when in fact there was an issue of over disclosure of notes;
2. There was a dismissive remark about the Respondent’s solicitor’s experience, made by the Judge;
3. Comments that the Respondent’s mitigation evidence was poor was made before the evidence had actually been heard by the Tribunal.

It was also relevant that the conduct of the Judge appeared to affect various parts of the hearing and not one specific aspect and, as such, (applying the objective observer test above) the EAT concluded that such an observer would conclude that the Judge had indeed taken a particular side.

As we said at the start of this article, arguing bias in an appeal is very difficult but this case does show that such an argument is not impossible and, should you as an employer find yourself in a Tribunal with a hostile Judge, it’s certainly worth taking detailed notes.

Don’t forget, this advice is general in nature and will need to be tailored to any one particular situation. As a MILS member you have access to the MILS Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us at any stage for advice and assistance as appropriate.