St Michael’s Church of England Junior & Infant School v Smith

An employment judge may properly question witnesses to clarify evidence and manage proceedings. However, interventions must not make the judge appear to have adopted the role of an advocate or cross-examiner for one party.

Apparent bias is assessed objectively. The question is whether a fair-minded and informed observer, having considered all relevant circumstances, would conclude that there was a real possibility of bias. Repeated, searching interventions, coupled with attempts to obtain evidence for a point not advanced by a party, may cross that line. If apparent bias is established, the judgment is vitiated and the case must be reheard by a differently constituted tribunal.

The Claimant was dismissed from her post as a school office manager following concerns about financial procedures and arrangements with a private nursery. The Birmingham Employment Tribunal held that she had been unfairly dismissed.

During the five-day hearing, the Respondent applied for the Employment Judge to recuse himself for apparent bias. The application was refused. The Respondent appealed, principally contending that the Employment Judge’s questioning of its witnesses showed that he had descended into the arena. It also challenged aspects of the unfair-dismissal reasoning.

The central issue before the Employment Appeal Tribunal was whether the Employment Judge’s interventions would cause a fair-minded and informed observer to conclude that there was a real possibility of bias.

1. Appeal allowed. The Employment Judge’s interventions gave rise to an appearance of bias. The whole judgment was therefore vitiated and the claim had to be remitted for a complete rehearing before a different Employment Tribunal.

2. Applying Porter v Magill, [2002] 2 AC 357, the Tribunal assessed the proceedings through the eyes of a fair-minded and informed observer, informed of the nature of an unfair-dismissal claim, the disputed reason for dismissal, and the evidence as a whole.

3. A judge may intervene to clarify evidence. The observer would nevertheless have seen the Employment Judge question the Respondent’s principal witness for about one and a half hours after an hour of cross-examination, remind her of her oath in terms suggestive of cross-examination, demand a yes-or-no answer from another witness, and repeat a question several times while pressing for agreement.

4. Most significantly, the Employment Judge sought production of a cleaning contract to establish a point for the Claimant which she had not advanced and which proved mistaken. That conduct could reasonably appear to show that he had formed a view and was seeking evidence to support it.

5. The Employment Judge’s strongly personalised adverse comments about the Respondent’s witnesses reinforced that appearance. Although some interventions were legitimate and the Tribunal made no concluded finding on tone, the cumulative effect crossed the permissible line between judicial clarification and advocacy. The Employment Judge should consequently have recused himself.

6. The Tribunal did not determine the separate substitution ground. Any merits issues, including the true reason for dismissal and its fairness, were for the newly constituted tribunal.

• Employment Appeal Tribunal: appeal allowed; the Birmingham Employment Tribunal judgment was set aside because apparent bias vitiated the hearing. The claim was remitted for a complete rehearing before a different tribunal: [2014] UKEAT 0165_14_1610.
• Employment Tribunal: Birmingham Employment Tribunal held that the Claimant had been unfairly dismissed and refused the Respondent’s recusal application. Its judgment was sent to the parties on 27 August 2013.