Agbodo v Hertfordshire County Council

Allegations of apparent bias and procedural irregularity must be assessed on the facts found by the appellate tribunal, applying the fair-minded and informed observer test. A tribunal may rely on documentary evidence where the material is properly before it, even if the author is not called to give oral evidence.

Costs remain exceptional in employment proceedings, but may be awarded where a claim had no reasonable prospect of success and the tribunal properly exercises its discretion. Unreasonable conduct may support the order, but an isolated instance will not ordinarily justify costs by itself.

The claimant appealed against the dismissal of his direct race discrimination claim by the Watford Employment Tribunal and against an award of £10,000 costs. The underlying claim was brought under the Race Relations Act 1976.

The appeal alleged that the Employment Tribunal had failed to deal with the whole case, relied on witness statements from witnesses who were not called, and displayed apparent bias. The claimant also challenged the costs order. The Employment Appeal Tribunal heard oral evidence and considered whether the agreed list of issues had confined the claim to the Stage 4 appeals committee and whether the tribunal’s conduct and reasoning were legally objectionable.

1. Appeal dismissed. The Employment Appeal Tribunal found no error of law justifying interference with the Employment Tribunal’s decision.
2. The claimant had agreed the list of issues prepared for the Employment Tribunal. The tribunal was therefore entitled to treat the direct discrimination claim as confined to the alleged treatment by the Stage 4 appeals committee. The later challenge to the effect of that agreement was an impermissibly new point.
3. The Employment Tribunal was entitled to make findings from documentary material properly before it, including interview notes and other documents, although some witnesses whose statements had been lodged were not called. The findings were not unsupported by evidence.
4. The fair-minded observer would not conclude that the Employment Tribunal was biased. The costs warning concerned the abandoned victimisation and harassment claims, and the warning relating to the claimant’s conduct while a witness was giving evidence was appropriate to maintaining fairness in the hearing. The observations in Gee v Shell UK Ltd [2003] IRLR 82 did not require a different conclusion.
5. Costs are exceptional in the Employment Tribunal, as recognised in Lodwick v Southwark L.B. [2004] IRLR 554, but the tribunal was entitled to conclude that the direct discrimination claim had no possible chance of success and was misconceived. The claimant’s lack of sincere belief in the complaint, his pre-proceedings conduct, his means, and the respondent’s costs were relevant to the exercise of discretion. The email relied on as unreasonable conduct would not, standing alone, have justified the order.
6. The £10,000 costs order was accordingly upheld and the appeal dismissed.

• Employment Appeal Tribunal: dismissed the appeal against the Employment Tribunal’s dismissal of the direct discrimination claim and its £10,000 costs order.
• Watford Employment Tribunal: dismissed the claimant’s direct race discrimination claim and ordered him to pay £10,000 costs. The judgment was promulgated with reasons on 13 February 2008.