Aziz v Crown Prosecution Service

A tribunal may recuse itself only on objectively reasonable grounds. A perceived conflict arising from criticism of, or a possible challenge to, a tribunal member’s personal conduct does not itself justify recusal. The tribunal should determine any relevant factual issue on the parties’ evidence.

Apparent bias is assessed by asking whether the fair-minded and informed observer would find a real possibility of bias. Robust adverse findings in earlier stages of the same litigation, and displeasure about earlier counsel’s conduct, do not without more satisfy that test. Where there is a genuine concern, the tribunal should take reasonable steps to establish whether recusal can be avoided.

The Claimant had succeeded in a long-running race-discrimination claim. The same Employment Tribunal had made the liability and remedies decisions and had previously refused the Respondent’s application that it recuse itself.

At a later hearing, the Claimant sought a review of the remedies decision to claim exemplary damages and costs. Her costs application included criticism of the Respondent’s former counsel at an earlier review hearing. The Employment Tribunal rejected allegations of actual or apparent bias, but recused itself because it considered that resolving this issue might involve its own credibility and personal conduct.

The Claimant appealed. The Respondent sought to uphold the recusal on the separate ground of apparent bias.

1. Appeal allowed. The Employment Tribunal’s recusal decision was set aside. The applications for exemplary damages and costs were remitted to the same tribunal.

2. A conflict of interest may, on appropriate facts, produce actual or apparent bias. The applicable question is whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased: [2002] 2 AC 357.

3. The tribunal’s stated basis for recusal was unsustainable. The former counsel’s alleged conduct had occurred three years earlier. Even a challenge to the Employment Judge’s integrity, if personally offensive, would not without more require recusal. The Claimant placed limited weight on that conduct, and the Respondent had no direct evidence of what occurred at the earlier hearing.

4. The tribunal had no cogent factual basis for concluding that a dispute about counsel’s behaviour would put it in direct conflict with the parties. If that issue required determination, the tribunal should decide it on the evidence adduced. Its conclusion that it could not adjudicate was not well founded in law and was one no reasonable tribunal properly directing itself could reach.

5. The Respondent could not uphold the decision by alleging apparent bias. Earlier robust findings against the Respondent and its witnesses had either been endorsed on appeal or had already been considered in the earlier unsuccessful recusal application. The Employment Judge’s remembered displeasure concerning former counsel did not create a real possibility that the outstanding applications would not be determined justly.

6. Further, tribunals must have broad backs. If there had been real doubt about the significance of counsel’s conduct to the costs application, the tribunal should first have asked the Claimant what weight she placed on it and taken reasonable steps to avoid recusal.

• Employment Appeal Tribunal: allowed the Respondent’s appeal from the liability decision in 2005, set aside the discrimination finding and ordered a rehearing before a different tribunal.
• Court of Appeal: allowed the Claimant’s appeal in 2006, restored the original tribunal’s race-discrimination finding and remitted the case to that tribunal for compensation.
• Employment Tribunal: made a remedies decision on 1 September 2008; later refused the Respondent’s review and recusal applications on 2 November 2009.
• Employment Tribunal: on 23 January 2013 recused itself from the Claimant’s outstanding applications. This appeal set that decision aside and remitted the applications to the same tribunal.