Adamson v. Swansea University

Apparent bias is assessed by asking whether the fair-minded and informed observer, having considered all relevant circumstances, would conclude that there was a real possibility of bias. The appellate tribunal must make that assessment itself. A party may waive an objection to apparent bias, but the waiver must be clear and unequivocal and made with knowledge of the essential relevant facts. The party must be given a full explanation of the circumstances, the available options and sufficient time to reflect. Where those requirements are met, a later objection to the disclosed circumstances is barred.

The appellant appealed from an Employment Tribunal decision refusing his application for Employment Judge Thomas to recuse himself while hearing claims of unfair constructive dismissal and race discrimination. The grounds concerned the judge’s past connection with a respondent witness and alleged private communications between the judge and the respondent’s counsel.

The EAT heard evidence from the appellant, the judge, tribunal members, counsel and solicitor. The central issues were whether the judge had disclosed the relevant connection before the appellant signed an agreement permitting the hearing to continue, and whether private communications had occurred.

1. The appeal was dismissed. The EAT found that the judge’s past relationship with the respondent’s witness gave rise to a real possibility of apparent bias under the fair-minded and informed observer test.
2. The EAT was in as good a position as the original tribunal to assess apparent bias. It had to ascertain all relevant circumstances revealed by its investigation and make its own objective assessment.
3. The EAT found that the judge had disclosed, before the written agreement was signed, that he had known the witness and his family, had met him socially, had provided employment advice and might have given him a reference. The appellant therefore knew the essential facts relevant to waiver.
4. The requirements identified in Jones v DAS Legal Expenses Insurance Co Ltd and Locabail (UK) Ltd v Bayfield Properties Ltd were satisfied. The judge explained the circumstances, the right to seek recusal, the consequences of consenting to continuation and the likely procedural alternatives. The appellant had substantial time to consider his position and expressly reserved only the right to object if further unknown relevant facts emerged.
5. The EAT rejected the allegation that private conversations had taken place between the judge and respondent’s counsel. That ground therefore failed on the facts.

• Employment Appeal Tribunal: dismissed the appeal from the Employment Tribunal’s refusal of the application that Employment Judge Thomas recuse himself.