Begraj v Heer Manak Solicitors

A tribunal must recuse itself where a fair-minded and informed observer would conclude that there is a real possibility of bias. Judicial compartmentalisation may be relevant, but it is only one circumstance and cannot displace the objective test. Particular concern arises where a judge receives apparently prejudicial information secretly from a third party, keeps the approach confidential, and fails to disclose the full circumstances promptly.

Cost, delay and the inconvenience of a rehearing cannot outweigh the fundamental requirement that justice is, and appears to be, impartial. Waiver requires full disclosure and conduct inconsistent with pursuing recusal. Tribunals should ordinarily disclose without delay any unsolicited communication about the merits or parties, subject to narrow exceptions for security, privacy and statutory or procedural confidentiality.

The Claimants appealed against the decision of a Birmingham Employment Tribunal to recuse itself after police officers privately approached the Employment Judge during a lengthy hearing. The officers supplied information said to concern alleged criminal conduct, including matters prejudicial to the Respondents, and asked that the approach remain confidential. The Judge disclosed the approach and document after about a week, but declined to answer further questions.

The Respondents later applied for recusal. The Employment Tribunal concluded that a fair-minded and informed observer would see a real possibility of bias. The appeal challenged that conclusion on the grounds of judicial compartmentalisation, the consequences of a rehearing for access to justice, and waiver by delay.

Appeal dismissed. The Employment Tribunal had correctly recused itself.

1. The applicable test was whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias. An appellate tribunal may generally make its own assessment, but the first-instance tribunal’s decision to recuse itself is relevant evidence because it reflects its appreciation of the circumstances and its concern that it might not appear wholly impartial.
2. A judge may often be able to put irrelevant information out of mind. That ability is only one factor in the objective assessment and does not have determinative weight. The central issue was not merely possession of information unknown to one party, but the Judge’s acceptance of a secret approach, the request for confidentiality, the apparent prejudice against one party, and the delay in disclosure. The suggested remedy of calling the police officers for cross-examination could not cure the difficulty, because the issue concerned the Tribunal’s conduct in receiving and withholding the information.
3. The consequences of recusal, including expense, delay and the loss of substantial evidence, were relevant but could not outweigh a real risk that the hearing would lack the reality or appearance of impartiality. Each member of a tribunal must be impartial; the presence of other members did not cure the concern.
4. Waiver had not been argued below and therefore could not establish an error in the Tribunal’s decision. In any event, the Respondents had not received full information, had reserved their position, and had not acted inconsistently with seeking recusal. The delay was explained by the need to investigate the police approach and decide whether to terminate a lengthy hearing.
5. Guidance was given for future cases. Unsolicited communications about the merits or parties should ordinarily be disclosed without delay. Communications concerning security or administration may justify confidentiality, but the parties should usually be told that an approach has occurred and that confidential information has been received. Confidential material should generally not be accepted unless authorised by rule or statute, or justified by exceptional security or privacy considerations.

• Employment Appeal Tribunal: appeal dismissed. The decision of the Birmingham Employment Tribunal to recuse itself was upheld.