Hassanzadeh v City of Bradford MDC & Ors

Where a tribunal judge becomes aware of circumstances which would lead the fair-minded and informed observer to conclude that there is a real possibility of bias, the judge must recuse themself. Administrative inconvenience and delay cannot outweigh that requirement.

The question is objective and turns on all material circumstances. A party does not waive an apparent-bias objection unless the waiver is clear, unequivocal and made with full knowledge of the relevant facts.

However, apparent bias does not arise where a decision was reached before the judge knew of the potentially disqualifying circumstances and the judge merely later communicates that decision. A repetition of an earlier position is not a fresh decision or a continuing act for limitation purposes.

The Claimant brought employment claims against her local authority employer, a school governing body and her trade union. At a preliminary hearing, the Regional Employment Judge determined the time-limit issues concerning the union but reserved communication of that decision. She then dealt with matters concerning the other Respondents.

After the hearing, the judge learned that a trade-union representative criticised in the Claimant's documents was a lay member of the Leeds Employment Tribunal. She nevertheless issued decisions striking out claims against the First and Third Respondents and communicated her earlier decision that the claims against the Second Respondent were out of time.

The Claimant appealed, principally alleging apparent bias. The central question was whether the judge should have recused herself after learning of the lay member's position, and whether that affected decisions already reached.

1. Appeal allowed in part. The decisions concerning the First and Third Respondents were set aside and remitted for transfer to another region and fresh consideration by a differently constituted Employment Tribunal. The appeal against the Second Respondent was dismissed.

2. Applying Porter v Magill, [2001] UKHL 67, the objective question was whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias. If that test is met, recusal is mandatory. Public confidence in impartial justice outweighs administrative convenience.

3. Once the Regional Employment Judge learned that the person criticised was a lay member assigned to her region, her own statement that she would not have embarked on the hearing had she known earlier was material. A reasonably informed observer could infer that her regional management responsibilities, and the need to accept the Claimant's allegations at their highest, created a real possibility that her impartiality might be affected. The objection concerned the Claimant's position generally and was not confined to the claim against the union. The Claimant's late raising of the issue was not a clear and informed waiver.

4. The position differed for the Second Respondent. The judge had reached, and informed the parties that she had reached, her decision on its time-limit issues before acquiring the potentially disqualifying information. Her ignorance of that matter when deciding eliminated any real possibility that it had influenced the decision. The objective observer would not infer that she had changed it; communicating the earlier decision did not create apparent bias.

5. The conclusion that the union's letter of 10 January 2013 merely restated an earlier communicated position was permissible. Even taking the Claimant's case at its highest, repetition did not create a new decision or form part of a continuing act. No error was shown in the refusal to extend time on a just and equitable basis.

• Employment Appeal Tribunal — allowed the appeal concerning the First and Third Respondents, set aside those decisions and remitted the claims for fresh consideration; dismissed the appeal concerning the Second Respondent: [2016] UKEAT 0182_15_1104.
• Employment Tribunal (Leeds) — struck out or dismissed specified claims against the First and Third Respondents, gave directions on the remaining disability-discrimination claim, and held the claims against the Second Respondent out of time.