The London Borough Of Brent v Gbaja

The test for apparent bias is whether a fair-minded and informed observer, having considered all the facts, would conclude that there was a real possibility of bias. The observer is neither complacent nor unduly sensitive or suspicious.

A judge's historic involvement in unrelated litigation concerning a former partner, including a charging order over jointly owned property, did not without more create a realistic possibility of hostility towards the local authority. Alleged procedural errors and a corrected misstatement of evidence carried little weight where they did not disclose an adverse mindset. The same facts also provided no evidence of actual bias.

The claimant, a housing benefit and council tax assessor, was dismissed by the London Borough of Brent for unauthorised personal internet use and telephone calls. The Employment Tribunal at Watford held that the dismissal was unfair because it fell outside the range of reasonable responses.

Brent did not challenge that conclusion on its merits. It appealed on the ground that Employment Judge Henry had been actually or apparently biased because, seven years earlier, he had given evidence for a former partner in possession proceedings brought by Brent and a charging order had later affected jointly owned property. Brent also relied on the handling of contribution and Polkey issues, and an initially inaccurate account of a witness's evidence.

The central issue was whether those matters disclosed actual bias or a real possibility of apparent bias.

1. Appeal dismissed. Applying the test stated in [2003] UKHL 35 and [2002] 2AC 357, the Tribunal asked whether a fair-minded and informed observer would conclude that there was a real possibility of bias. It held that there was none.
2. The Employment Judge's evidence in the earlier possession proceedings concerned his relationship with his former partner, their child and jointly owned property. It was not evidence directed against Brent. The subsequent charging order resulted from the former partner's unpaid costs liability. Brent had acted as a council would ordinarily be expected to act. Those circumstances did not objectively support an inference of hostility towards Brent.
3. There was no extrinsic evidence of animosity, no complaint about the conduct of the hearing, and no suggestion that the substantive findings were extraordinary or perverse. The Tribunal's correction of the account of a witness's evidence, after challenge, did not indicate bias. Nor did its initial indication about contribution and Polkey; tribunals had adopted differing approaches as to whether such issues were dealt with at liability or remedy.
4. Actual and apparent bias had been advanced on the same facts. Since those facts did not establish even the lower threshold of a real possibility of apparent bias, they provided no evidence of actual bias. The Employment Tribunal's unfair-dismissal decision therefore stood.

• Employment Appeal Tribunal: dismissed Brent's appeal alleging actual and apparent bias and upheld the Employment Tribunal's unfair-dismissal decision.
• Employment Tribunal, Watford: on 4 April 2011, unanimously held that the claimant had been unfairly dismissed.