Lawal v Northern Spirit Ltd

Apparent bias is assessed objectively. The question is whether a fair-minded and informed observer, after making reasonable inquiries into the relevant facts and tribunal arrangements, would conclude that there was a real possibility of bias. A part-time Employment Appeal Tribunal judge may also appear as an advocate before the tribunal. The mere fact that a lay member previously sat with that judge does not establish such a possibility. The observer may take account of the lay member’s independent appointment, equal voting rights, judicial responsibilities and ability to distinguish between judicial and partisan roles. A precautionary restriction imposed on part-time employment tribunal chairmen does not determine the issue. The concern remains speculative where there is no specific link to a litigant or continuing institutional loyalty.

Mr Lawal, a former conductor, brought race discrimination and victimisation claims concerning alleged post-employment references. The Employment Tribunal held that it had no jurisdiction under section 4(2) of the Race Relations Act 1976. The Employment Appeal Tribunal dismissed his appeal on that issue and also rejected his objection to its constitution.

The objection arose because Nicholas Underhill QC, a part-time Employment Appeal Tribunal judge, appeared as advocate for Northern Spirit before a panel containing a lay member who had previously sat with him judicially. The central issue was whether that prior professional relationship created a real possibility of bias under the common law and Article 6(1).

Majority. Lord Mummery LJ, with Lord Phillips MR concurring, dismissed the appeal so far as it concerned the Recorder objection.

1. The common-law and Convention test was whether the fair-minded and informed observer, having considered the relevant facts, would conclude that there was a real possibility of bias. The court applied the approach in In re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700 and Magill v Porter & Magill v Weeks [2002] 2 WLR 37.
2. The observer should not jump to an adverse conclusion from a limited appearance. He or she would make reasonable inquiries and seek an explanation of the tribunal’s composition, appointment arrangements and practice. The observer was also taken to possess some knowledge of legal culture, including the tradition of impartiality expected of professional and lay tribunal members. The court used Scanfuture UK Limited v Secretary of State for Trade and Industry [2001] IRLR 416 and approved the relevant observations in Sengupta v Holmes [2002] EWCA Civ 1104.
3. After those inquiries, the observer would conclude that the lay member had an independent mind and could distinguish the part-time judge’s neutral judicial role from his partisan role as advocate. The lay members were selected for independence and experience, had equal voting rights, could dissent from the judge and were expected to decide on reasoned argument. There was no specific link with a party and no continuing institutional or organisational loyalty.
4. The Strasbourg cases relied on by the objection involved materially different circumstances, such as subordination to a party’s representative, a judge’s previous involvement in the same case or continuing institutional ties. They did not establish bias from the professional association alleged here. The restrictions on part-time employment tribunal chairmen were precautionary and were not determinative of the Employment Appeal Tribunal issue.
5. Lord Phillips added that the concern might have greater substance if advocates sat so frequently that lay members viewed them as judges who sometimes acted as advocates, rather than advocates who sometimes sat as judges. That was a concurring observation and was not necessary to the order.

Dissent. Pill LJ would have allowed the appeal. He considered the Employment Appeal Tribunal’s lay majority and the legally qualified chair’s necessary guidance to create a special collegiate relationship. In his view, a fair-minded observer could reasonably perceive that the former part-time judge’s advocacy carried additional authority and placed the opposing litigant at a disadvantage. The appeal was therefore dismissed by the majority on the Recorder objection. The jurisdiction issue was left pending the House of Lords’ decision in related appeals.

• Court of Appeal (Civil Division) — By majority, dismissed the appeal on the Recorder objection under [2002] EWCA Civ 1218. The jurisdiction issue was left pending.
• Employment Appeal Tribunal — On 15 January 2002, rejected the Recorder objection and dismissed the appeal on the jurisdiction issue.
• Employment Tribunal — In Extended Reasons sent on 12 July 2000, held that it had no jurisdiction to hear the post-employment race discrimination claim.