Balakumar v Imperial College of Health Care NHS Trust

The test for apparent bias asks whether a fair-minded and informed observer, having considered all relevant facts and their context, would conclude that there was a real possibility of bias. The observer is neither unduly suspicious nor complacent and will seek the full explanation for the event complained of.

Intemperate or tactless judicial language is regrettable but does not itself establish apparent bias. The question is whether, in its procedural context, the language objectively creates a real possibility that the tribunal cannot decide impartially. A prompt explanation and correction of a genuine misunderstanding may be material to that assessment.

The Employment Tribunal dismissed the Claimant's claims for unfair dismissal and discrimination. During a difficult multi-day hearing, the Employment Judge misheard counsel's request for a further adjournment and said that there was no need to lie about the reason for an earlier adjournment.

The misunderstanding was clarified immediately and the Judge expressed regret. The Claimant appealed on the sole remaining ground that the remark gave rise to apparent bias and sought a rehearing before a fresh tribunal.

1. Appeal dismissed. The Employment Judge's use of the word lie was inappropriate and intemperate, but it did not lead the fair-minded and informed observer to conclude that there was a real possibility of bias.

2. The applicable test was that in Porter v Magill, [2002] 2 AC 337. The observer considers the full relevant context, is not unduly sensitive or suspicious, and recognises both the requirement of impartiality and the possibility of human error.

3. The context showed a genuine mishearing. The Judge believed that counsel had misled the Tribunal about the purpose of the earlier adjournment. A judge was entitled to challenge an apparent attempt to mislead the Tribunal, although the challenge should have been expressed more carefully. The misunderstanding was resolved almost immediately and the Judge expressed regret.

4. The remark arose in a procedural, not evidential, setting during a difficult hearing involving several applications. It was germane to the issue as the Judge understood it, rather than a gratuitous or sarcastic intervention. The three-member Tribunal had considered the procedural matters together.

5. The case was materially different from El Faragy v El Faragy & Ors, [2007] EWCA Civ 1149, where repeated incidental and unwarranted sarcastic remarks created apparent bias. The single remark here amounted to poor handling of one issue, not an appearance of partiality. The Claimant's and counsel's ethnicity did not alter that conclusion because the material disclosed no racially charged circumstance.

6. The appellate tribunal disregarded the Employment Judge's own view on whether she was biased. That question was for the appellate tribunal applying the objective test.

• Employment Appeal Tribunal: dismissed the Claimant's appeal against the Employment Tribunal's dismissal of her claims.
• Employment Tribunal: dismissed claims for unfair dismissal, pregnancy or maternity discrimination, race discrimination, and disability discrimination by association.