D'Silva v Manchester Metropolitan University

An Employment Tribunal does not ordinarily have to recuse itself merely because it made firm adverse credibility findings at the liability hearing. The question is whether a fair-minded and informed observer would see a real possibility of bias. A tribunal may use relevant background litigation history when assessing credibility and whether proceedings were brought vexatiously.

Recusal may be required where liability reasons express a concluded view on the statutory threshold for a later costs application. It is not required where the tribunal leaves that issue open for submissions. The amount of a costs award is discretionary. A tribunal may consider the paying party’s means, but is not generally obliged to do so.

The Claimant, a former senior lecturer, brought race discrimination and victimisation claims concerning promotion decisions. The Employment Tribunal dismissed those claims and later refused to recuse itself from the Respondent’s costs application. It ordered the Claimant to pay £10,000 towards the Respondent’s costs.

The Tribunal subsequently refused a review of that costs judgment. The Claimant appealed both decisions. He alleged apparent bias, contending that the Tribunal’s liability reasons pre-judged costs and relied on irrelevant matters. He also challenged the basis and amount of the costs award.

The central issues were whether the Tribunal should have recused itself and whether its costs order disclosed an error of law.

1. Both appeals were dismissed. A recusal application is determined by legal principle, not by an unfettered judicial discretion. The applicable question was whether a fair-minded and informed observer would conclude that there was a real possibility of bias, applying the principles approved in Ansar v Lloyds TSB Bank plc [2007] IRLR 211.

2. The Tribunal was entitled, when determining liability, to make firm findings about the Claimant’s credibility and to take account of the relevant background of his litigation against the Respondent. Earlier adverse comments about a party do not, without more, require a different tribunal to hear a subsequent application. The Tribunal’s language did not amount to the gratuitous and extreme criticism considered in R v Inner West London Coroner ex parte Dallaglio and Another [1994] 4 All ER 139.

3. Nor had the Tribunal pre-judged the costs application. Unlike the tribunal in Oni v NHS Leicester City (formerly Leicester City Primary Care Trust) [2013] ICR 91, it had not expressed a concluded view on the costs threshold. Its express recognition that the Claimant would have to address whether he had acted vexatiously left that question open.

4. The Tribunal properly carried its assessment of the Claimant’s credibility into the costs application. It was entitled to consider whether bringing the proceedings was vexatious under rule 40 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004. It had addressed the Claimant’s own conduct, rather than improperly attributing his representative’s conduct to him.

5. The £10,000 award was within the Tribunal’s discretion. It was a small fraction of the Respondent’s incurred costs. Although rule 41(2) permitted consideration of ability to pay without making it mandatory, the Tribunal had considered the Claimant’s means and could take account of the possibility of instalment payments. The Respondent’s application for costs of the appeal was refused.

• Employment Appeal Tribunal: dismissed the appeals from the costs judgment and review judgment.
• Employment Tribunal, Manchester: on 4 April 2011 refused to recuse itself and ordered the Claimant to pay £10,000 costs; the judgment was sent to the parties on 13 April 2011.
• Employment Tribunal, Manchester: refused a review of the costs judgment in a judgment sent to the parties on 24 May 2011.