Are you neither complacent nor unduly sensitive or suspicious? Are you fair-minded, informed and balanced? Do you often catch buses in Clapham? In that case, the Employment Tribunal has just the job for you, a role integral to the administration of legal justice, though sadly not paid very well, or indeed at all.
If you have these qualities then you are officially the sort of member of the public who can safely be relied on to decide when a particular set of facts might reasonably be said to create a public perception of the risk of bias, conscious or unconscious, in Employment Tribunal panels. Here is a test: is there such apparent bias where the Employment Judge hearing a claim turns out afterwards to be the father of a partner in the firm representing one of the parties, in circumstances where that partner is accepted as having no actual involvement in that case?
This was the question considered by the EAT in Martin & Others –v- South Lanarkshire Council in its decision last month. Mr Martin was one of three employees alleging unfair dismissal by the Council. The claims arose out of similar but not identical circumstances but while two of the Claimants were unsuccessful, Martin (represented by the firm in question) succeeded. The Council appealed on the grounds of apparent bias by the Employment Judge as a result of his familial connection with Martin’s lawyers. If that were upheld, the whole case would need to be reheard, no doubt at substantial cost and inconvenience to the parties. However, that is not a relevant consideration when looking at whether there is scope for the perception of the risk of bias. The law in that respect has not moved on much since a 1919 case which said that “The importance of preserving the administration of justice from anything which can even by remote imagination infer a bias or interest in the Judge ……. is so grave that any small inconvenience experienced in its preservation may be cheerfully endured”. Of course, both “small” and “cheerfully” are relative terms, and easy for the Judge to say since he’s not paying for it.
In Martin it was accepted that the decision to uphold the claim had been unanimous, and also that the case was funded by insurers such that the lawyers would be paid the same irrespective of the outcome. In addition, neither the other two Tribunal panel members nor the assorted legal representatives who had appeared in the initial hearing had detected any grounds for complaint of bias at that time. The threshold for alarm bells about bias was also seen as having moved perceptibly from 1919’s “anything which can even by remote imagination infer” to a more pragmatic “real risk”.
The EAT concluded that there had been no actual bias, since its analysis of the Tribunal’s arguments for upholding only Martin’s claim of the three showed no faults. Applying the test of whether the informed and impartial observer would decide that there was a “real risk” of bias, the EAT concluded on balance that there was not the degree of personal interest by the Judge in the outcome of the case necessary to allow that conclusion. However, it did nonetheless deliver a stinging clip round the ear to the Employment Judge, though in the immensely veiled way for which the EAT is justly renowned: “We did take the view that it might be best practice for any Judge to advise parties of a family connection such as offspring in the current situation”. Ouch.