Fraser v University and College Union & Ors

The test for apparent bias is whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias. The Employment Appeal Tribunal must assess both the recusal decision and the proceedings as a whole, making factual findings where necessary.

Adverse findings, ordinary case management, assistance to witnesses, or errors in a substantive judgment do not alone establish apparent bias. However, exceptionally unbalanced and hostile questioning by a tribunal member may create an appearance of continuing bias in a later costs application. In that event the whole tribunal should recuse itself and the costs application should be heard by a fresh tribunal.

The Claimant's race discrimination and victimisation claims against his trade union and its officers had been dismissed by an Employment Tribunal. He did not appeal that merits judgment. The Respondents then sought costs of £53,878.

The Claimant applied for the original tribunal to recuse itself from determining costs. He relied principally on the content and tone of questions and comments made by one lay member, Mr Carter, during the merits hearing. The tribunal, by a majority, refused recusal; Mr Rao dissented. The costs application itself remained unresolved.

The appeal concerned whether the earlier conduct gave rise to an appearance of bias requiring the tribunal to recuse itself from the later costs application.

1. Appeal allowed. Applying the apparent-bias test stated in Ansar v Lloyds TSB Bank & Ors [2007] IRLR 211, the question was whether a fair-minded and informed observer would perceive a real possibility that the tribunal was biased. The EAT was entitled, and required, to make findings as best it could about what had occurred at the merits hearing.

2. On the balance of probabilities, the Claimant's account of Mr Carter's questioning was accepted. Mr Carter had asked why the Claimant believed he need not obey the union's rules and, after the Claimant described his conciliatory conduct, had sarcastically asked whether he was “Mr Nice Guy”. The tribunal members' recollections were equivocal, Mr Rao could not recall the exchanges, and the Respondents gave no evidence.

3. Those remarks and their tone narrowly crossed the threshold for apparent bias. A fair-minded and informed observer would conclude that there was a real possibility that Mr Carter was biased against the Claimant, and that the demonstrated bias could continue when the tribunal determined costs. The absence of an appeal from the merits decision did not remove that appearance of bias.

4. The other matters relied on did not justify recusal. The handling of duplicate and irrelevant documents was ordinary case management. The alleged assistance to the Respondents' witnesses was consistent with normal judicial intervention. Omissions and errors in the merits judgment, and its conclusion that the claims lacked merit, did not show bias or improperly prejudge costs.

5. The original tribunal should therefore have recused itself as a whole. If maintained, the costs application was remitted to a fresh Employment Tribunal, which must determine it on the existing merits judgment and any other relevant material.

• Employment Appeal Tribunal: Allowed the Claimant's appeal against the refusal of recusal and directed that any costs application be heard by a fresh Employment Tribunal.
• Employment Tribunal, Central London: By majority decision sent on 7 March 2014, refused the Claimant's application that the original panel recuse itself from hearing the Respondents' costs application. Mr Rao dissented.
• Employment Tribunal, Central London: The earlier merits judgment, sent on 7 February 2012, dismissed the Claimant's race discrimination and victimisation claims. No appeal was brought from that judgment.