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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Breeze Benton Solicitors (A Partnership) v Weddell [2004] UKEAT 0873_03_1805 (18 May 2004) URL: http://www.bailii.org/uk/cases/UKEAT/2004/0873_03_1805.html Cite as: [2004] UKEAT 0873_03_1805, [2004] UKEAT 873_3_1805

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APPEARANCES

 

For the Appellant	MR SIMON DEVONSHIRE (of Counsel) Instructed by: Messrs Breeze Benton Solicitors Fleur de Lys House 94 Bow Road London E3 3AB
For the Respondent	MR MARK MULLINS (of Counsel) Instructed by: Messrs Walter Jennings & Son Solicitors 259/263 Kentish Town Road London NW5 2JT

SUMMARY

Practice and Procedure

Appeal based on refusal of ET Chairman to recuse himself following previous proceedings involving the same Respondent and his complaint to the LCD concerning the Chairman's conduct. Appeal allowed. Case to be reheard by different ET.


 


THE HONOURABLE MRS JUSTICE COX

1. This is an appeal by the Respondent, Breeze Benton, from a decision of the Stratford Employment Tribunal, promulgated on 1 November 2002, upholding the Applicant's complaints of unfair dismissal and sex discrimination. The grounds of appeal do not seek to challenge the Tribunal's findings and conclusions on the substantive complaints. It is contended, rather, that the entire decision was undermined by the appearance of bias in that the Chairman should not have sat on this case and his decision to do so renders the whole decision unsound.
2. Leave to pursue this ground of appeal was given following a preliminary hearing at this Employment Appeal Tribunal on 2 February 2004 and pursuant to this Tribunal's directions and paragraph 11 of the Practice Direction, relevant affidavits and other documents have now been prepared and were all before us in an agreed bundle.
3. The judgment now given orally is the judgment of all three members of this Appeal Tribunal following full argument on 13 May last and judgment then being reserved to enable us to consider and decide the matter. With the consent of the parties, and in order not to delay matters further, it is given in the absence of the two lay members, who are unable to be present today but are in full agreement with the decision and the reasons for it contained in this judgment.
4. It is common ground that the test to be applied in cases where, as here, apparent bias is being alleged, is that enunciated by the House of Lords in the case of Porter v Magill [2002] 2 AC 357, and followed in Lawal v Northern Spirit Ltd [2003] IRLR 538, namely whether a fair-minded and informed observer, having considered the facts, would consider that there was a real possibility that the Tribunal was biased.
5. This test involved a modification of the common law test of bias established in R v Gough [1993] AC 646, in order to bring the common law rule into line with the jurisprudence of the Strasbourg Court on the effect of Article 6 of the European Convention on Human Rights and the requirement of a fair hearing by an independent and impartial Tribunal. This modification marked what was described by Lord Steyn in the Lawal decision as "a small but important shift" which had at its core the need for the confidence which must be inspired by the courts in a democratic society.
6. The informed observer referred to in that test was recognised in Lawal at paragraph 22 as someone who today:

"…can perhaps 'be expected to be aware of the legal traditions and culture of this jurisdiction' as was said in Taylor v Lawrence [2003] QB 528, per Lord Woolf CJ … at paragraphs 61-64. But he may well not be wholly uncritical of this culture … he would be 'neither complacent nor unduly sensitive or suspicious' …"

7. In the circumstances of this case the informed observer would in our view be expected to have a working knowledge of the Employment Tribunal's jurisdiction and, in particular, of the very limited circumstances in which Tribunals ordinarily award costs in Tribunal proceedings.
8. It is also common ground that the starting point in any case where apparent bias is alleged is a careful analysis of the facts. One starts by "identifying the circumstances that are said to give rise to bias": see paragraph 20 in Lawal. We therefore turn to consider the factual background to this appeal.

The Facts

9. The history of this matter began with a hearing in an earlier case in the Stratford Employment Tribunal on 15 June 2001 where the Chairman was Mr Pritchard-Witts. The decision in that case was promulgated on 28 June 2001 and is in our bundle at page 128.
10. Proceedings had been brought in that case against the same Respondent as in the present case by two former employees complaining of unlawful deduction of wages. They had left the Respondent's employment in December 2000 and brought claims for unpaid salary, overtime payments and a Christmas bonus. One of the Respondent's two principals was Michael Reilly. The Applicant (and Respondent to the present appeal) was called as a witness by the two complainants, as is clear from paragraph 25 of the Extended Reasons. The case was listed for hearing on 15 June 2001 and was called on at about 12.22 pm, before a Tribunal chaired by Mr Pritchard-Witts. At that time the Applicants were conducting the case in person and Mr Reilly was appearing for the Respondent firm as its representative. It is accepted that references in the decision to a Mr Davis are an error.
11. There had been an unfortunate procedural history which the Employment Tribunal refers to in detail at paragraphs 1 to 18 and it is clear from paragraphs 19 to 20 that the first 30 minutes of the hearing were taken up with preliminary matters including the question whether the Respondent had entered a proper notice of appearance and whether Mr Reilly should be heard. There is a dispute however about what was said by the Chairman during this initial period.
12. In his affidavit Mr Reilly alleges that, during the discussion which took place between them and before any evidence was called in the case, the Chairman made a number of disparaging remarks about both him and the Respondent firm. In particular, it is said that the Chairman stated that he was surprised that the Respondent was still in business; that he suggested that the claims were only being defended because the Respondent was in financial difficulties and shortly to become insolvent; and further that he said he found the behaviour of the Respondent and of Mr Reilly difficult to understand, unprofessional and not the conduct of a solicitor. The Chairman does not accept that he made these comments and we shall return to this dispute later.
13. As a result of the Chairman's conduct towards him during this preliminary period, Mr Reilly states that he considered these comments to be entirely prejudicial to the Respondent's position and that his role as an advocate in the case had been undermined. He therefore decided to instruct Counsel to continue with the case after the lunch adjournment. The reason recorded by the Tribunal at paragraph 21 for Mr Reilly absenting himself was as follows:

"Mr Reilly then revealed at 12.50pm that he had something else to do in the afternoon and would not be appearing before the Tribunal when the case was called on. After expressing some surprise in the light of the applications he had just been making the Chairman enquired of Mr Reilly what he proposed to do. Mr Reilly stated that "someone would appear" and deal with the matter whilst he, in the meantime, would contact his accounts department in an attempt to agree the figures concerning the salary complaint with the Applicants."

It is not in dispute that Mr Reilly would probably have explained his absence to the Tribunal in this way.

14. The hearing resumed at 2.00 pm when no-one was in attendance representing the Respondent and the Tribunal decided to continue with the case in the Respondent's absence "in the interests of justice". At about 2.08 pm however, Counsel came into the room having been instructed to appear by Mr Reilly over the lunch hour. He was granted some time to prepare properly to conduct the case and the hearing resumed at 2.30 p.m. Mr Reilly was not present during the afternoon. Counsel then indicated that he had instructions not to contest the claims for unpaid salary and overtime payments. The only issue to be determined was therefore the claim for bonus payments amounting to just over £200 for each Applicant.
15. After hearing evidence the Tribunal rejected these claims. However, they awarded costs to each Applicant in the sums of £279 and £130 respectively. As is clear from paragraph 32 of the reasons, these awards did not represent the costs or disbursements that each Applicant had in fact incurred but a notional evaluation of the time each Applicant had spent on the preparation of her case.
16. The Tribunal's conclusions and reasoning in relation to costs appear at paragraphs 30 and 31 of the decision and are important in the context of this appeal. They were expressed as follows, after referring to the provisions of Rule 12 of the relevant procedural regulations relating to costs:

"30. The Applicants submit that Mr Reilly has effectively been extending the process of litigation in order to defer the inevitable, namely that he had to pay the wages that his staff had earned. Mr Reilly had never taken the point concerning incorrect service or the incorrect description of the Respondent party. This he has raised in an opportunistic way in order to criticise the Applicants before the Tribunal today. The position is that it is not until the case is actually started that any final indication is given that a small proportion of the claim actually in dispute. In the meantime the Applicants have suffered considerable financial stress and embarrassment as is clear from the testimony they have given before the Tribunal. Furthermore, the Applicants submit that the Tribunal has only got to cast its mind back over the events that unfolded before it between 12.22 pm and 2.08 pm this afternoon to gain an accurate impression of what they have been up against. The Applicants submit that the Tribunal could not have had a better view of the type of Respondent that it is dealing with and the way in which Mr Reilly on behalf of the partnership cares to conduct its legal and business affairs.

31. The Tribunal is unanimously of the view that it agrees entirely with the submissions made by both of the Applicants. They are young solicitors attempting to make their way in the world who, no doubt, work hard in a difficult area of the law and are perfectly entitled to be paid their wages. The Tribunal is in no doubt whatsoever that the conduct of Mr Reilly, given that he is a senior figure in a firm of solicitors, has been vexatious and unreasonable. Therefore the provisions of Rule of Procedure 12 are completely fulfilled and the Tribunal makes the following costs order against the partnership of M J Reilly and J M B Perrigo trading as Breeze Benton Solicitors."

17. A further complaint is made by Mr Reilly about the Chairman's conduct at this hearing. It is said that Counsel reported to him after the proceedings had concluded that the Chairman had behaved very brusquely towards one of the Respondent's witnesses on the bonus issue, a Ms Camenzeuli, who had been reduced to tears and had come away feeling that the Chairman was biased in favour of the Applicants.
18. There is no statement before us from this witness or from Counsel who conducted the hearing and Mr Devonshire on behalf of the Appellant concedes that Mr Reilly's evidence on this point is hearsay evidence. It is also disputed by the Applicant who was there and states that she spoke to this witness after the conclusion of the hearing observing her to be entirely unaffected by the proceedings.
19. Following this hearing and before the decision was promulgated and sent to the parties Mr Reilly wrote to the Regional Chairman on 22 June 2001 indicating that he proposed making a formal complaint to the Lord Chancellor's Department as to the Chairman's conduct at the hearing on 15 June and asking for a handwritten note or tape recorded version of the Chairman's comments during the proceedings. He stated that:

"We would wish copies of any contemporaneous records prior to compiling our own contemporaneous notes as to what we consider to be his prejudice, rude and bombastic behaviour towards the Respondents and witnesses throughout the hearing."

20. The Regional Chairman replied by letter dated 29 June 2001 informing Mr Reilly that Employment Tribunal proceedings are not tape recorded, that there would therefore be no such record of the proceedings and that the Chairman would refer to any notes he took in the event that a complaint was made to the Lord Chancellor's Department and his comments were sought on that complaint.
21. Subsequently, on 6 July 2001 Mr Reilly wrote a letter addressed to "The Lord Chancellors Department, House of Lords, London SW1" in which he complained about the conduct of the Chairman "in relation to his comments directed at the writer and this firm" in the course of the hearing on 15 June 2001. In this letter Mr Reilly complained in the following terms:

"In proceedings taken by employees against this company and where the Writer appeared in person in the proceedings he showed prejudice, bias both towards the Writer and a witness called on our behalf Miss Zoe Camenzuli. In terms he commented whilst I was an advocate representing the Firm:

1. I am surprised this Firm is still in business;

2. Is this claim being defended because the company is bust;

3. He demanded I sat down when I attempted [to] remonstrate in respect of 1 and 2 above;

4. He said he found the behaviour of the Firm and my own behaviour difficult to understand;

All of this was whilst the claim was still pending and was regarded by the parties as being an independent assessor of the claim the Writer noted the embarrassment of his colleagues but the Chairman seemed bombastic and rude and determine[d] to ignore them.

In the afternoon the Writer was too embarrassed to attend and instead instructed Counsel, however, our Accounts Assistant who gave evidence and who had never been in a Court before reported back in an extremely distressed state that the Chairman had been aggressive and rude to her constantly interrupting her and questioning her figures but "as nice as pie" to the other side and as she definitely considered he displayed bias against the Respondent and favoured the other side which was the impression gained by me in the morning when I considered these interventions unprofessional and lacking in dignity in the holder of a judicial office and therefore we would very much wish these matters investigated on this Firm's behalf.

We look forward to hearing from you."

22. It was accepted by the Tribunal that this letter was written and sent. However, no response was received from the Lord Chancellor's Department, perhaps because the incorrect address was used, and no further letter pursuing the matter was ever written by Mr Reilly. The matter was thereafter said to have "run into the sand".
23. The Applicant in this case had also resigned from the Respondent's employment in the same month as the two applicants in the earlier proceedings for whom she gave evidence. She herself commenced proceedings in the Employment Tribunal on 1 March 2001 complaining of direct sex discrimination and unfair constructive dismissal. The complaint was denied and the parties prepared for hearing in the usual way.
24. A directions hearing was held on 17 October 2001 when the case was listed for a 10-day hearing commencing on 1 July 2002. This hearing, where the Respondent was represented by Counsel, took place before a different Chairman but, both on 2 January 2002 and subsequently on 24 January, it is clear from the correspondence that Mr Pritchard-Witts made interlocutory orders in this case relating to discovery and inspection. It is accepted that at no stage was any issue raised by the Respondent as to the possibility of Mr Pritchard-Witts being the Chairman allocated to hear the case, or any application made that a different Chairman should be allocated in view of the previous complaint.
25. On 25 June 2002 telephone attendance records before us show that Mr Reilly asked his secretary to ring the Tribunal to ask if Mr Pritchard-Witts was sitting on the case and to let him know if that was the case. Two days later an attendance note confirms that Mr Reilly himself rang the Employment Tribunal on 27 June to make enquiries about the Chairman and to object to Mr Pritchard-Witts hearing the case. In the attendance note the response was noted as "can't assist – will note objections on file". Mr Reilly states in his affidavit that he was told that no chairman had yet been allocated.
26. In his letter to this Appeal Tribunal dated 25 November 2003 the Regional Chairman has observed, firstly, that the Chairman would not in fact have been allocated until 28 June and, secondly, at this time the standing instructions to staff at the Stratford Employment Tribunal were that any party enquiring as to the identity of the Chairman assigned to the case would be told that such information could not be given. That practice has apparently since changed. It is accepted, therefore, that Mr Reilly would not have been told who the Chairman was even if he had telephoned on 28 June after the case was allocated.
27. The parties arrived at the Tribunal for the hearing on Monday 1 July 2002, not 2 July (as it is agreed the Tribunal have incorrectly recorded the date), and realised upon arrival that Mr Pritchard-Witts was in fact the Chairman who had been allocated. The Tribunal clerk told the parties that the Chairman was running late and that he wanted both sides to agree a schedule of issues if possible before the hearing started. Discussions between Counsel for both parties then took place and Counsel for Mr Reilly indicated that he was going to object to Mr Pritchard-Witts sitting as Chairman because of "apparent bias" given the previous case. There is no evidence that this information, relayed in Counsel to Counsel discussions, was passed onto the Chairman before the parties were called into the Tribunal at 10.30 am.
28. In this context it is significant in our judgment that one of the lay members on the Tribunal, Mr Shaw, recalls in his statement, prepared for this Appeal Tribunal, that:

"At our discussion immediately prior to the start of the hearing, Mr Pritchard-Witt made it known to Mrs Wilsher and myself that Mr Reilly, on behalf of Breeze Benton, would most likely request a replacement chairman. He told us that he had discussed it with the Regional Chairman - Mr I Lamb - and the outcome had been that a replacement chairman to cover a scheduled 9 day case could not be found for a tribunal to begin that day. Further, that Listings had been consulted and could not find a slot for such a multi-day case until well into 2003…"

We consider this to indicate that before the parties were called into the Tribunal and before any intimation had been given of a recusal application, that the Chairman himself anticipated that Mr Reilly would object to his involvement in the case.

29. The agreed notes of the hearing before us record, at page 119 of our bundle, that the Chairman's first observation to the parties upon their arrival in the Tribunal room concerned the availability of the schedule of issues for which he had asked and not, as one might have anticipated if he had known about the application, that he understood that the Respondent was to make an application.
30. Further, it is clear from the Regional Chairman's letter that he was away on leave as from 1 July 2002 so that the discussions between him and Mr Pritchard-Witts about a replacement Chairman or an alternative listing would seem to have taken place on the previous Friday, that is 28 June, when the case was allocated.
31. Counsel for the Respondent then made the application that the Chairman recuse himself drawing attention to the events at the previous hearing on 15 June 2001, which he described as a "very emotional" hearing. He submitted that Mr Reilly left at lunch and instructed Counsel to attend because he felt that "stinging comments" had been made by the Chairman about the Firm and about him personally. Reference was made to the letters sent to the Regional Chairman and to the Lord Chancellor's Department and Counsel emphasised that in this case Mr Reilly was the central witness and that he did not feel he would have a fair hearing if the case continued before this Chairman. A copy of the letter to the Regional Chairman was on the file and a copy of the letter sent to the Lord Chancellor's Department was made available to the Tribunal.
32. The Chairman said that he would find and read his notes relating to the previous hearing and having done so told the parties he had found no evidence of any stinging comments, although before us both parties accepted that it was unlikely such comments would be found. The agreed notes of the hearing record that Mr Mullins, appearing then for the Applicant as he does now in this appeal, informed the Tribunal that the Applicant's memory of events was that "Chair just asked "is firm still practising?" She cannot recall any other "stinging comments"."
33. After considering the matter the Tribunal refused the application and set out the facts and their reasons for refusal at paragraphs 7 to 21 of the Extended Reasons. These included the following:

(a) The contested matter that the former Tribunal had to decide was resolved in favour of Mr Reilly and Miss Camenzeuli was held to have provided accurate evidence in the case (para. 12).

(b) The award of costs to the Applicants related to "relatively modest amounts of money" (para. 13).

(c) Mr Reilly had done nothing to pursue his complaint to the Lord Chancellor's Department (para. 14).

(d) The matter had not been raised at an earlier interlocutory stage so that the allocation of the case might "avoid the appointment of this Chairman" (paras. 14 and 15).

(e) The matter was raised for the first time on the first morning of the hearing.

(f) The Chairman was not sitting alone on the previous occasion but was a member of a Tribunal constituted by three individuals and it was open to the two members on this occasion to dissent from the Chairman's view which was a "reasonable safeguard".

34. The Tribunal stated that they had considered whether the circumstances would lead a fair-minded and informed observer to conclude that there is a real possibility or real danger (that then being the test) of the Tribunal being biased if the same Chairman remained to participate in the hearing.
35. At paragraph 19 they stated that in reaching their decision the Tribunal "has considered the interests of both parties and the interests of the public" and that "the Tribunal must take a balanced view as to the interests and human rights of both parties to this action". Taking the fear of Mr Reilly "to be a genuine one" the Tribunal said they had to consider the history of the case and the complaints raised and that "it must be made clear to Mr Reilly that the allegations made by him against the Chairman are not accepted by the Chairman".
36. The Tribunal referred, finally, in paragraph 21, to the need to bear in mind the "practical effect" of the recusal application, if successful, in that the case could not proceed and could not be relisted until approximately April 2003.
37. It seems clear that in arriving at their conclusion the lay members placed considerable weight on the Chairman's assurance that he was not or would not be biased. Mr Shaw stated:

"After detailed arguments from both parties the Tribunal deliberated at length the interests of Ms Weddell [the Applicant] in getting a speedy hearing of her complaint against the possibility of Mr Reilly receiving an unfair hearing. Ms Wilsher and I questioned Mr Pritchard-Witts as to the previous appearance of Mr Reilly before him. He assured us that it in no way pre-disposed him in any way as to the merits of the case we were to hear. With this in mind the decision was reached that by adjourning the case until 2003 would have on balance a more detrimental effect on Ms Weddell than on Mr Reilly."

The Law

38. We have referred already to the legal test which must be applied. In addition dicta in three recent cases merit attention in considering the issues arising in this case. In the case of Locabail (UK) Ltd v Bayfield Properties Ltd [2000] IRLR 96 the Court of Appeal stated at paragraph 25:

"It would be dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias. Everything will depend on the facts, which may include the nature of the issue to be decided…"

In giving examples of some of the many factors which might arise for consideration, they stated a little later on that:

"…a real danger of bias might well be thought to arise if there were personal friendship or animosity between the judge and any member of the public involved in the case; or if the judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case; or if, in a case where the credibility of any individual were an issue to be decided by the judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person's evidence with an open mind on any later occasion; or if on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind (see Vakauta v. Kelly (1989) 167 CLR 568); or if, for any other reason, there were real ground for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues before him. The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection. In most cases, we think, the answer, one way or the other, will be obvious. But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal. We repeat: every application must be decided on the facts and circumstances of the individual case. The greater the passage of time between the event relied on as showing a danger of bias and the case in which the objection is raised, the weaker (other things being equal) the objection will be."

At paragraph 19 of the judgment the Court of Appeal stated:

"While a reviewing court may receive a written statement from any judge, lay justice or juror specifying what he or she knew at any relevant time, the court is not necessarily bound to accept such statement at its face value. Much will depend on the nature of the fact of which ignorance is asserted, the source of the statement, the effect of any corroborative or contradictory statement, the inherent probabilities and all the circumstances of the case in question. Often the court will have no hesitation in accepting the reliability of such a statement; occasionally, if rarely, it may doubt the reliability of the statement; sometimes, although inclined to accept the statement, it may recognise the possibility of doubt and the likelihood of public scepticism. All will turn on the facts of the particular case. There can, however, be no question of cross-examining or seeking disclosure from the judge. Nor will the reviewing court pay attention to any statement by the judge concerning the impact of any knowledge on his mind or his decision: the insidious nature of bias makes such a statement of little value, and it is for the reviewing court and not the judge whose impartiality is challenged to assess the risk that some illegitimate extraneous consideration may have influenced the decision."

39. In the case of Lawal v Northern Spirit Ltd [2003] IRLR 538 the House of Lords approved the modification to the test in R v Gough, enunciated by the House of Lords in Porter v Magill, in order to ensure conformity between the common law rule and Strasbourg jurisprudence. At paragraphs 21 to 22 they held as follows:

"21. The principle to be applied is that stated in Porter v Magill, namely whether a fair minded and informed observer, having considered the given facts, would conclude that there was a real possibility that the tribunal was biased. Concretely, would such an observer consider that it was reasonably possible that the wing member may be subconsciously biased? The observer is likely to approach the matter on the basis that the lay members look to the judge for guidance on the law, and can be expected to develop a fairly close relationship of trust and confidence with the judge. The observer may also be credited with knowledge that a Recorder, who in a criminal case has sat with jurors, may not subsequently appear as counsel in a case in which one or more of those jurors serve. Despite the differences between the two cases, the observer is likely to attach some relevance to the analogy because in both cases the judge gives guidance on the law to lay men. But the observer is likely to regard the practice forbidding part-time judges in the Employment Tribunal from appearing as counsel before an Employment Tribunal which includes lay members with whom they had previously sat as very much in point. The Editor of the Industrial Relations Law Reports has argued "that a rule to the same effect is even more necessary in the EAT": [2002] IRLR 225. In favour of this view there is the fact that the EAT hears only appeals on questions of law while in the Employment Tribunal the preponderance of disputes involve matters of fact. The observer would not necessarily take this view. But he is likely to take the view that the same principle ought also to apply to the EAT.

22. In the EAT Lindsay J was alive to the possibly that "some . . . practices will fall prey to increasing sensitivity" (para 33(10)). What the public was content to accept many years ago is not necessarily acceptable in the world of today. The indispensable requirement of public confidence in the administration of justice requires higher standards today than was the case even a decade or two ago. The informed observer of today can perhaps "be expected to be aware of the legal traditions and culture of this jurisdiction" as was said in Taylor and Another v Lawrence and Another [2003] QB 528, per Lord Woolf CJ, at pp 548-549, at paras 61-64. But he may not be wholly uncritical of this culture. It is more likely that in the words of Kirby J in Johnson v. Johnson (2000) 200 CLR 488, 509, para 53, he would be "neither complacent nor unduly sensitive or suspicious": compare also [2002] IRLR 225 (second col.)."

40. More recently, the Court of Appeal in the case of Lodwick v London Borough of Southwark [2004] EWCA Civ 306, after referring to the Porter v Magill test, at paragraph 18 said as follows:

"That is the test which the Employment Tribunal were required to apply when deciding whether the Chairman should recuse himself. Before the Employment Appeal Tribunal, it was necessary first to test the Employment Tribunal's decision as to recusal in that way but also to consider the proceedings before the Employment Tribunal as a whole and decide whether a perception of bias had arisen."

41. The court decided that on the particular facts which arose in that case the Employment Appeal Tribunal should exercise its powers of obtaining information directed to the bias issue in accordance with the Practice Direction before reaching its decision on the issue. However, at paragraphs 20 and 21 Pill LJ, with whom the other members of the court agreed, said as follows:

"20. … I do not consider the first of the reasons stated by the Employment Tribunal as to why the Chairman need not stand down, that the Chairman "was only one of three members of Tribunal all with equal vote," to be as a good one. Particularly as the legally qualified and presiding member of a Tribunal of three, his position was an important one and any apparent bias on his part is not nullified by the presence of two lay members who might outvote him. In present circumstances, if grounds are found to be present which would lead the appropriate observer to conclude that there was a real possibility that the Chairman was biased, it could not properly be held that the requirement of a fair hearing was satisfied by the presence of the lay members. Whether reliance on that reason by the Tribunal in itself affects the overall position will be for the Employment Appeal Tribunal to consider.

21. Detailed guidance is given in Locabail (UK) Ltd v Bayfield Properties Limited & Anr [2000] IRLR 96, mentioned by the judge in his ruling, as to how the question should be approached. In the present context, I would specifically draw attention to the statement of this court, presided over by the Lord Chief Justice, at paragraph 25:

"The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party of witness to be unreliable, would not without more found a sustainable objection".

I consider that principle to be an important one in the administration of justice and one which applies with at least as much force to previous adverse comments upon a representative as upon a party or witness. A party cannot normally expect a judge to recuse himself because the judge has previously made adverse comments about him, in the course of a case or cases, though the circumstances of each situation will need specific consideration. Neither can parties assume or expect that findings adverse to a party in one case entitle that party to a different judge or tribunal in a later case. Something more must be and, it is claimed in this case, is shown. As to the relevance of the result of cases in this context, it must be borne in mind that it is at least possible that a litigant or representative who has behaved unreasonably, or worse, in one case will do so in a later case in which he or she appears."

42. On the facts of that case the "something more" was considered to be, firstly, an unusual costs order and, secondly, adverse comments which the Chairman was alleged to have made about the Applicant suggesting a bias against trade union activists and activism in a case which had taken place some four years previously.

Our Conclusions

43. It is common ground that, in dealing with an appeal from a refusal of a recusal application, this Tribunal should adopt what is essentially an originating jurisdiction assessing the risk on all the material obtained, pursuant to the Practice Direction, that "some illegitimate extraneous consideration may have influenced the decision."
44. We accept Mr Devonshire's submission, having regard to these authorities, and the principles to be gleaned from them:

(1) that the test properly applied requires the Tribunal to recuse itself if there is a real possibility of bias. If such a risk is found the Tribunal is not entitled to balance against that risk considerations of prejudice to the other party resulting from delay;

(2) that if in any case there is a real ground for doubt, that doubt should be resolved in favour of recusal;

(3) that it is no answer to a recusal application to say that the Chairman was only one of three members with an equal vote, given the important position of the legally qualified and presiding member of a Tribunal of three members; and

(4) unless he admits to the possibility of bias, the claim of the person asked to recuse himself that he will not be or is not partial is of no weight because of "the insidious nature" of bias.

45. Applying these principles to the evidence before us in the present case, and being cogniscent of the fact that each case will turn on its own individual facts, we have concluded, for the following reasons, that the fair-minded and informed observer, having considered all the facts, would consider that there was, in this case, a real possibility of bias and that this Chairman should have recused himself.
46. Firstly, Mr Reilly alleged that during the hearing on 15 June 2001 the Chairman had made disparaging remarks about him and the Respondent Firm, which were sufficient to make him decide to instruct Counsel urgently to represent the Respondent after the lunch adjournment. Although these remarks were not accepted by the Chairman:

(a) There was no suggestion and no finding by the Tribunal that Mr Reilly's application subsequently for the Chairman to recuse himself was a tactical ploy on his part. On the contrary, the Tribunal accepted for the purposes of the application that Mr Reilly's fear was genuinely held;

(b) Mr Reilly's claims were to some extent corroborated by the complaint he had made subsequently to the Lord Chancellor's Department and, indirectly, to the Regional Chairman. We note that the Chairman himself has made no reference to the remarks in his statement responding to Mr Reilly's affidavit.

(c) Due to the insidious nature of bias, little weight could be attached by the Tribunal members to the Chairman's non-acceptance of Mr Reilly's allegations and to his statement that he was not and would not be partial.

(d) The mere fact that the Chairman felt it necessary to state expressly at paragraph 19 of the reasons that he rejected Mr Reilly's allegations indicated the level of the dispute between the Chairman and Mr Reilly and rendered it inappropriate, in our judgment, that he should sit on the case.

47. Secondly, the very fact that Mr Reilly had complained about the Chairman's conduct made it inappropriate that the Chairman should sit. The significance of the complaint lay in the fact that it had been made and that the Chairman knew that he had complained and was aware of the specific allegations made about his conduct.
48. Thirdly, in awarding costs against the Respondent after the hearing in June 2001 the Tribunal had found Mr Reilly's conduct to be vexatious, that is, pursued for an improper motive amounting to an abuse of the procedure. In accepting and adopting the Applicant's submissions as to Mr Reilly's conduct (see paras. 30 and 31 of the decision, to which we have already referred), the Tribunal, in our judgment, expressed themselves in trenchant and critical terms. Such orders for costs were, at that time, before the changes made to the procedural regulations, made only very rarely by Employment Tribunals.
49. Further, whilst the sums were modest in themselves, the Applicants were in fact awarded more than they were entitled to because costs were awarded on the basis of the time each Applicant had spent preparing the case rather than an order for recovery only of their disbursements which, as litigants in person, was all that they were entitled to receive, confirmed recently by this Appeal Tribunal in Kingston upon Hull County Council v Dunachie (No. 3) [2003] IRLR 843. We do not accept Mr Mullins' submission that the costs order was justified on the facts found and that that is a relevant factor. This seems to us to be beside the point. The fact is that the costs order was made and for reasons which were expressed in robust terms.
50. Fourthly, there was clearly a very close factual connection between the circumstances of the first Tribunal case and the complaints made against Mr Reilly by this Applicant in the second. All the applicants had resigned from the Respondent Firm in the same month and this Applicant had given evidence for the other two applicants at their hearing. Further, it seems that at the hearing in July 2002 the Applicant was initially seeking to rely upon the first Tribunal decision in order to support her complaint. It is not in dispute that the first decision had been included in the bundle of documents prepared for the hearing and, in addition, the notes of the hearing at page 121 of our bundle indicate that the Applicant's representative wished to refer to a transcript of the earlier proceedings. At paragraph 21 of the reasons the Tribunal stated:

"Any matters concerning the previous litigation which do not appear to be relevant to the current issues before it will be excluded from the evidence in any event."

51. Finally, the first hearing had been held only 12 months before the second and the Chairman plainly had a recollection of events, as is clear from:

(a) the fact that he raised with his lay members on the morning of the hearing before the parties came into the Tribunal the fact that Mr Reilly would most likely apply for the case to be heard by a different Chairman; and

(b) the fact that he raised with the Regional Chairman also before the hearing began the possibility of a replacement Chairman or an alternative listing for the case.

52. In these circumstances, there being in our judgment a real possibility of bias, this case should not have proceeded and the Chairman should have recused himself. There was no scope in this case for weighing against the risk of bias the delay in hearing the application which might result from the Chairman taking the decision to recuse himself. Nor was it legitimate, because of the insidious nature of bias to attach weight, as the Tribunal members appear to have done, to assurances by the Chairman that he was in no way predisposed as to the merits of the case or to have regard to the fact that the Chairman was one of three Tribunal members involved in the decision-making with whom the other two members would feel perfectly able to disagree.
53. Further, while Mr Devonshire concedes with the benefit of hindsight that the objection to this Chairman being allocated to this case should perhaps have been raised at an earlier interlocutory stage, the fact that what is a well-founded application for recusal was not raised earlier, avoiding the need for an adjournment, is in our view only relevant to the question of costs and not to the question of recusal.
54. We do not accept Mr Mullins' submission that we should have regard to the Tribunal's substantive decision and consider the extent to which there is evidence of Mr Reilly's credibility on the issues in this case having been affected in any way by the decision in the first case. This seems to us to be entirely the wrong approach. No causative link needs to be established. The question is whether there is a real possibility of bias.
55. In our judgment, for the reasons we have given, this decision was wholly undermined by the Chairman's failure to recuse himself. This appeal must therefore be allowed and the matter remitted to a freshly-constituted Tribunal in respect of both Chairman and lay members.
56. It is of course highly regrettable that we are now almost two years on since the hearing took place in this case. In view of the delay which has already occurred, it is now very much in the interests of both parties that this complaint is determined as soon as possible. We express the hope that the Regional Chairman will give consideration to expediting the hearing in the circumstances so as to avoid the prospect of any further delay.