Westlb AG London Branch v Pan

An employment tribunal must determine a recusal application according to the established bias principles. A party’s loss of confidence is insufficient without substantive grounds supporting the appearance of bias. Where a hearing has begun before a full panel, a decision to replace the panel should ordinarily be taken by the whole panel, save for compelling reasons. The parties must have a fair opportunity to address the application. Administrative convenience, medical concerns and the fact that a party feels unable to proceed before a judge do not, without more, justify a fresh panel.

The respondent employer appealed against decisions by Employment Judge Wade that, although the formal conditions for recusal had not been met, the resumed hearing should take place before a different panel. The claimant had alleged bias arising from the tribunal’s handling of earlier adjournment applications connected with his ill health. The original tribunal had read into the case for approximately one day but had heard no evidence.

The issues were whether the decision was appealable, whether the recusal application had been fairly considered, whether the Employment Judge could decide alone to replace the panel, and whether the circumstances justified exercising a discretion to convene a fresh panel.

1. Appeal allowed. The Employment Judge’s decision to order a fresh panel was set aside.
2. The decision was appealable under section 21(1) of the Employment Tribunals Act 1996. The claimant’s application had not been served on the respondent, and the respondent had therefore not been given an opportunity to make representations before the decision of 13 June. If the order was made independently of the recusal application, the decision should at least have recorded the respondent’s right to seek variation or revocation.
3. The Employment Judge should not, in the circumstances, have decided alone to replace a panel which had already begun the hearing. Following Peter Simper & Co Limited v Cooke (No 1), the decision should ordinarily be taken by all members of the tribunal, unless compelling reasons justify another course.
4. The guidance in Ansar v Lloyds TSB Bank required the bias objection to be considered judicially. The fair-minded and informed observer test applied. A judge has a duty to sit, and recusal should not be ordered merely because a party lacks confidence or believes that the judge has erred. Doubt is resolved in favour of recusal only where there is a real ground for doubt.
5. The allegation of bias was without foundation. The tribunal’s earlier adjournment decision, even if arguably mistaken, did not demonstrate pre-judgment. The fresh-panel decision had instead been based largely on medical and administrative considerations, without proper regard to the guidance in Ansar and Peter Simper. If the original panel was unavailable, the respondent agreed to a different panel. Any wider application should be considered in light of the guidance, medical evidence and submissions.

• Employment Appeal Tribunal: allowed the employer’s appeal and set aside the decision to convene a fresh panel.