Kidd v. The Commissioner of Police of The Metropolis

Apparent bias is assessed objectively. The question is whether a fair-minded and informed observer, considering all relevant circumstances, would conclude that there was a real possibility of bias.

Robust adverse findings about a party, firm judicial questioning, and irritation or hostility towards an advocate do not, without more, satisfy that test. A tribunal may properly question witnesses and control prolix or irrelevant material, provided it acts fairly. The context, length and conduct of the whole hearing matter. Only language or conduct sufficiently extreme or unbalanced to cast real doubt on the tribunal's ability to decide objectively will establish apparent bias.

The claimant, a police constable with an agreed disability, brought Employment Tribunal claims for sex and disability discrimination, victimisation and harassment against the Commissioner of Police of the Metropolis. Following a lengthy hearing, the Tribunal rejected all claims.

On appeal, the claimant alleged apparent bias by the Employment Judge. She relied on questions put to her after her evidence and on the Judge's treatment of her counsel after counsel suggested that opposing counsel might be seeking to corrupt witness evidence. The central issue was whether those incidents, read with the Tribunal's robust findings and comments, gave rise to a real possibility of bias.

1. Appeal dismissed. Applying the objective apparent-bias test, the Employment Appeal Tribunal held that a fair-minded and informed observer would not conclude that there was a real possibility that the Employment Judge was biased against the claimant.

2. The assessment required all relevant circumstances to be considered. It was fact-specific, objective, and required a real, rather than fanciful, possibility of bias. The Judge's adverse conclusions about the claimant and her claims were part of the Tribunal's adjudicative function. They did not, of themselves, establish apparent bias.

3. The questions put to the claimant at the end of her evidence were brief, open and asked at an appropriate stage. In the context of the case, they could bear on the Tribunal's overall assessment of her credibility and motivation. They were not objectively hostile or improper.

4. The Judge had reacted strongly to an inappropriate allegation by the claimant's counsel against opposing counsel. Some of his language and later written criticisms were not ideal and may have gone further than necessary. Nevertheless, hostility towards an advocate is not equivalent to hostility towards that advocate's client. The Judge's exasperation with the conduct of the case and counsel did not show that he could not decide the claimant's case objectively.

5. Tribunal Rules, Rule 41 supported the propriety of judicial questioning and procedural control. Read as a whole, the lengthy hearing, the two exchanges, and the Tribunal's reasoned judgment did not demonstrate apparent bias. The appeal was therefore dismissed.

• Employment Appeal Tribunal: appeal dismissed; the allegation of apparent bias against the Employment Judge failed.
• Employment Tribunal, London Central: after a hearing involving one day of reading, 14 days of evidence and submissions, and three days in chambers, it rejected the claimant's claims under the Equality Act 2010 and dismissed the proceedings.