Healy & Anor v Wincanton Group Plc (Practice and Procedure : Bias, misconduct and procedural irregularity)

A tribunal decision must be set aside where the fair-minded and informed observer would conclude that there was a real possibility of bias. A lengthy passage of time may remove an appearance of bias arising solely from a former solicitor-client relationship. It did not do so where the judge had previously heard the same litigant’s case and that litigant had successfully appealed on grounds of apparent bias.

A party waives an apparent-bias objection only if informed of the material facts and the consequences of the available choices, and then elects to continue. A self-represented litigant who did not know that he could seek recusal, and reasonably regarded proceedings as over once judgment was reserved, had not waived the objection.

The Claimants appealed against an Employment Tribunal judgment sent with reasons on 23 November 2011. Most of their monetary claims had been dismissed, although they had succeeded in part. The appeal was initially listed to determine procedural grounds before substantive grounds of appeal.

The first Claimant represented himself and another Claimant. He recognised that Employment Judge Robinson had previously been involved in litigation concerning him. In a separate earlier case, an Appeal Tribunal had set aside a judgment chaired by that judge because of the appearance of bias arising from the judge’s former professional connection with the Claimant.

The central issues were whether the historic connection and earlier successful bias appeal created a real possibility of bias, whether the Claimant had waived objection by not seeking recusal during the hearing, and whether alleged procedural unfairness reinforced that conclusion.

1. Appeal allowed. The Tribunal’s entire judgment was set aside and all affected claims were ordered to be reheard. The Respondent’s appeal from the part of that judgment favourable to the Claimants could also be disposed of because there was no longer a judgment against which to appeal.

2. Applying Porter v Magill, the question was whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias. The observer would know of the earlier Appeal Tribunal decision concerning Employment Judge Robinson and the first Claimant.

3. The former solicitor-client connection alone might, after 13 years, have ceased to create an appearance of bias. But this was an exceptional history. The judge had previously decided against the Claimant; the Claimant had successfully challenged that decision for apparent bias; and the earlier Appeal Tribunal had held that the judge should not hear the retrial. In those circumstances, the passage of time did not remove the appearance of bias. The judge should not at any time hear a case to which the Claimant was a party.

4. The Claimant had not waived the objection. Waiver requires an informed decision made with knowledge of the relevant facts and the consequences of the available options. The Tribunal accepted his evidence that, as a lay representative, he did not know that he could apply for recusal. Nor could he fairly be criticised for failing to apply after seeing a recusal application in a different case while judgment here was reserved.

5. The Tribunal also accepted that the refusal to permit evidence on sick pay and the restriction of cross-examination to one question were unfair. Other complaints concerned ordinary case management or potential errors of law. The primary constitutional ground was sufficient, but the individual matters gave further substance to the observer’s concern. Apparent bias affecting the representative also affected the Claimants whom he represented.

• Employment Appeal Tribunal: allowed the Claimants’ appeal, set aside the Employment Tribunal judgment, and ordered a rehearing.
• Employment Tribunal: Employment Judge Robinson, sitting at Liverpool over six days, gave a judgment with reasons sent on 23 November 2011. Most of the Claimants’ claims were dismissed, with some claims succeeding.