British Car Auctions Ltd v Adams

Apparent bias is assessed by asking whether a fair-minded and informed observer, having considered all relevant circumstances, would conclude that there was a real possibility of bias. Tribunal members should disclose reasonably arguable connections or concerns so that the parties can address them openly. Transparency is central to public confidence in justice.

A tribunal challenged for apparent bias must determine the issue itself as a whole. A member whose conduct is challenged is not thereby excluded from the tribunal’s consideration. A review application should ordinarily be made to the body that made the decision. Where undisclosed connections and subsequent conduct create a real risk of bias, the matter should be reheard by a fresh tribunal.

British Car Auctions Ltd appealed against an Employment Tribunal’s refusal to recuse itself from hearing an unfair-dismissal claim and against the refusal to review that decision. A lay member had family, geographical and employment connections with the appellant and with a person identified in the pleadings, but the parties were not told what account he gave of those matters when the recusal application was considered.

Further allegations concerned remarks about a witness and later comments by the lay member alleging embarrassment and conspiracy. The central issues were whether the circumstances created apparent bias, whether the procedure adopted in determining recusal was materially irregular, and whether the review application should have succeeded.

1. Appeals allowed. The existing tribunal could not continue. The case was to be re-listed before a completely fresh tribunal. The Employment Judge and the other lay member were expressly acquitted of any appearance of bias.
2. The applicable test was whether the fair-minded and informed observer, having considered the relevant circumstances, would conclude that there was a real possibility of bias. The EAT was in as good a position as the original tribunal to apply that test.
3. On the evidence, the lay member knew of his family and geographical connections with British Car Auctions, knew that a related person featured significantly in the pleadings and evidence, and was alert to the risk of knowing people involved in the case. The EAT concluded on probability that he had not disclosed those connections at the outset. The observer would therefore think that he had consciously concealed them. That gave rise to a real risk of bias. The finding did not amount to a finding of actual bias.
4. The tribunal’s procedure was materially irregular. Although the hearsay evidence was weak, the lay member’s account should have been disclosed to the parties so that they could comment, seek further evidence or make an appropriate application. The tribunal could not keep the material hidden until its final decision.
5. A tribunal asked to recuse itself must determine the issue itself. The tribunal as a whole must decide a challenge to one of its members, including participation by the member concerned, provided the reasons are openly and clearly stated. A review application should be made to the body that made the challenged decision, rather than referred sideways to a Regional Employment Judge.
6. The lay member’s later allegations of irrational hostility and conspiracy made his position untenable and confirmed that the tribunal could not continue with public confidence.

• Employment Tribunal: refused the application for recusal on 23 January 2012 and later refused a review on 15 March 2012.
• Employment Appeal Tribunal: allowed both appeals and directed that the case be heard by a completely fresh tribunal.