Nawaz v Docklands Buses Ltd (Debarred)

The test for apparent bias is objective. The question is whether a fair-minded and informed observer, knowing all relevant facts, would conclude that there was a real possibility of bias. Actual bias need not be alleged or proved.

An Employment Tribunal may intervene to clarify evidence and ensure that a witness can give their evidence. It must nevertheless remain an adjudicator. Interventions which amount in substance to cross-examination, leading questions or advancing one party’s case may cause the Tribunal to enter the arena and create apparent bias.

The Claimant, a bus driver, brought Employment Tribunal claims including detriment for trade union activities and unfair dismissal. During the hearing, before the Respondent’s evidence had concluded, he applied for the Employment Judge to recuse herself for apparent bias.

The Employment Tribunal, sitting with two lay members, refused the application in a reserved judgment sent on 24 November 2014. The Claimant appealed. The Respondent was debarred from taking part in the appeal and filed no evidence answering the Claimant’s affidavits. The central issue was whether the Employment Judge’s interventions created a real possibility of apparent bias.

1. Appeal allowed. The Appeal Tribunal unanimously held that a fair-minded and informed observer, aware of all relevant facts, would conclude that there was a real possibility that the Employment Judge was biased in her conduct of the hearing.

2. The applicable test, drawn from Porter v Magill, is objective. It concerns apparent rather than actual bias. Good faith by the Employment Judge and lay members was assumed, but it could not answer the objective question.

3. An Employment Tribunal may properly ask questions to clarify evidence, control the hearing and help a witness give their own evidence. It must not act as advocate for either party. The Tribunal found that the Judge’s interventions went beyond clarification. During the Claimant’s cross-examination, and during cross-examination of a Respondent witness, they would appear to an informed observer to be cross-examination and the putting of points favourable to the Respondent.

4. The Judge’s remarks to counsel, including an allegation of intimidation, added to the appearance of unfair pressure. The Tribunal assessed the overall impression rather than treating any isolated remark as determinative. It also held that the Employment Tribunal had treated supporting and contradictory witness material unevenly.

5. The Appeal Tribunal exercised a quasi-original jurisdiction and formed its own view on the evidence before it. This was an unusual and exceptional case, and the judgment did not encourage recusal applications or appeals before a first-instance hearing has concluded. The proceedings could not return to the same Tribunal and were remitted to a differently constituted Employment Tribunal.

• Employment Appeal Tribunal: appeal allowed and case remitted to a different Employment Tribunal.
• Employment Tribunal, East London: reserved judgment sent on 24 November 2014 refusing the Claimant’s recusal application.