Lawal v Northern Spirit Ltd

The fair-minded and informed observer test requires an objective assessment of whether there is a real possibility of bias. The observer is assumed to make reasonable inquiries and to possess some knowledge of legal culture and judicial practice.

A part-time Employment Appeal Tribunal judge may appear as an advocate before a tribunal containing lay members with whom that judge has previously sat. The relationship does not, without more, create a real possibility of bias where the tribunal’s constitution, appointments and procedures support independent decision-making and the lay members can distinguish between judicial and partisan roles.

The appellant challenged the participation of a lay member of the Employment Appeal Tribunal who had previously sat with the respondent’s leading counsel when he was acting as a part-time EAT judge. The objection alleged breach of the common-law rule against bias and Article 6(1) of the European Convention on Human Rights.

The EAT rejected the objection, applying the fair-minded and informed observer test. The appeal also concerned a separate jurisdiction issue arising from post-employment race discrimination claims, but that issue was adjourned pending related House of Lords proceedings.

1. Appeal on the Recorder objection dismissed. The jurisdiction issue was left pending the decision of the House of Lords in D’Souza and related appeals.
2. The applicable test at common law and under Article 6(1) was whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. The test protects both actual impartiality and public confidence in the administration of justice.
3. The observer would not reach a conclusion on the basis of limited appearances alone. He would make reasonable inquiries into the constitution, appointment and working practices of the EAT, including the independence, voting rights and experience of its lay members.
4. Those inquiries would show that appointed members were selected for their judgment, independence and industrial-relations experience. They had equal voting rights, could dissent from the judge, and were expected to decide objectively. It was unrealistic to assume that they could not distinguish between a part-time judge acting judicially and the same person acting as a partisan advocate.
5. The safeguards and traditions of impartiality in the EAT therefore meant that the previous professional association did not create a real possibility of bias. Restrictions applicable to part-time employment tribunal chairmen were precautionary and did not determine the issue.
6. Lord Justice Pill dissented. He considered the EAT’s legally qualified chair to occupy a special position because the lay majority necessarily looked to the chair for guidance on questions of law. In his view, the resulting collegiate relationship and additional authority of the former part-time judge were likely to diminish public confidence and created a legitimate doubt about impartiality.

• Court of Appeal (Civil Division): dismissed the appeal concerning the Recorder objection. The separate jurisdiction issue was adjourned pending related House of Lords proceedings.
• Employment Appeal Tribunal: rejected the bias objection and dismissed the appeal on the jurisdiction point.
• Employment Tribunal: held that it had no jurisdiction under section 4(2) of the Race Relations Act 1976 to hear the post-employment discrimination claim, following Post Office v Adekeye (No 2) [1997] IRLR 105.