Southwark v Jiminez

A tribunal does not display apparent bias merely by expressing strong provisional views after hearing most of the evidence. The objective question is whether a fair-minded and informed observer, considering the full context, would see a real possibility that the tribunal had closed its mind.

Judicial indications may identify concerns, focus further evidence and submissions, and encourage settlement. The tribunal must make clear that its views remain provisional and that it is open to persuasion. Trenchant language calls for careful scrutiny, but its strength alone does not convert a genuine preliminary view into a concluded decision.

An Employment Tribunal found that an employer had unlawfully discriminated against a disabled employee and constructively dismissed him. After most of the evidence had been heard, but before the employer's final witness and submissions, the Tribunal Chairman gave the parties strongly expressed preliminary views and encouraged settlement.

The Employment Appeal Tribunal held that those remarks would cause a fair-minded and informed observer to perceive a real possibility of bias. It allowed the employer's appeal and ordered a rehearing before a differently constituted tribunal.

The employee appealed. The central issues were whether the Employment Appeal Tribunal had erred by failing to obtain the Chairman's comments under the applicable Practice Direction and whether the Tribunal's remarks objectively disclosed a closed mind.

1. Appeal allowed unanimously. Peter Gibson LJ, with whom Clarke LJ and Richards J agreed, held that the Employment Tribunal had not displayed apparent bias. The order of the Employment Appeal Tribunal was set aside and the Employment Tribunal's decision was restored.

2. The test was objective. The question was whether a fair-minded and informed observer, having considered all the facts, would conclude that there was a real possibility of bias: Porter v Magill [2002] 2 AC 357. The observer was assumed to know that almost all the evidence had been heard, that submissions remained outstanding, and how employment tribunals ordinarily conduct proceedings.

3. English judicial practice permits a judge or tribunal to reveal current thinking, identify difficulties in a party's case and invite focused evidence or submissions. It does not permit the premature expression of factual conclusions or the manifestation of a closed mind. Nor is there any impropriety in encouraging settlement.

4. The Employment Appeal Tribunal materially erred by determining the bias complaint without first obtaining the Chairman's comments in accordance with paragraph 9 of the Employment Appeal Tribunal Practice Direction. Those comments, together with counsel's more accurate note, showed that the Tribunal had identified concerns which the employer could address by further evidence and final submissions. The error entitled the Court of Appeal to determine the bias issue afresh.

5. The Tribunal repeatedly described its views as preliminary. Although the description of the employer's conduct as appalling was trenchant, a strongly expressed view could still be provisional. The Tribunal had heard the bulk of the evidence, left open the possibility of further evidence, identified matters requiring explanation and had not decided whether the treatment was connected with disability. Viewed in context, the comments did not disclose an unwillingness to be persuaded.

6. Tribunals should nevertheless exercise caution when indicating their thinking before a hearing ends. Good practice requires them to make clear that their views are provisional and that they remain open to persuasion, especially where their language is strongly expressed.

1. Court of Appeal (Civil Division): The employee's appeal was allowed unanimously. The Employment Appeal Tribunal's order was set aside and the Employment Tribunal's decision restored: [2003] EWCA Civ 502.

2. Employment Appeal Tribunal: The employer's appeal was allowed for apparent bias. The claims were remitted for rehearing before a differently constituted Employment Tribunal. All other grounds of appeal were rejected.

3. Employment Tribunal: The Tribunal found that the employer had unlawfully discriminated against the employee contrary to the Disability Discrimination Act 1995 and had constructively dismissed him.