Lyfar-Cisse v Brighton And Sussex University Hospitals NHS Trust

Apparent bias depends on whether a fair-minded and informed observer, considering the particular facts and context, would perceive a real possibility of bias. A tribunal member’s participation in two proceedings involving some of the same parties does not itself meet that test. There must be a material overlap capable of affecting decision-making.

For limitation under section 123(3)(a) of the Equality Act 2010, conduct within the primary time limit must itself be relied on as discriminatory. An act relied on only as background cannot make earlier allegations timely as conduct extending over a period. Fair notice of the alleged continuing discriminatory conduct must be given in time for the respondent to meet it.

The appellant brought two sets of Employment Tribunal proceedings against NHS bodies and individuals. The Bryant Tribunal dismissed race-discrimination and victimisation claims as time-barred. The Baron Tribunal dismissed claims for unfair dismissal, whistleblowing detriment, discrimination and victimisation.

A lay member, Ms Campbell, sat on both panels. The appellant contended that this created apparent bias and procedural unfairness. She also challenged the Bryant Tribunal’s refusal to treat a November 2016 disciplinary decision as conduct extending over a period under section 123(3)(a) of the Equality Act 2010.

The appeals concerned whether the overlap between the two proceedings created a real possibility of bias, and whether an act not maintained as an allegation of discrimination could extend time for earlier claims.

1. Both appeals were refused. Applying the test in Porter v Magill, a fair-minded and informed observer would not have seen a real possibility that either tribunal was biased. The inquiry required close attention to the facts and context.

2. The common lay member’s knowledge from one case could not materially affect decision-making in the other. The Bryant Tribunal’s ruling that the November 2016 Cashman disciplinary decision was not a live issue depended on the appellant’s earlier case-management position, not on the substance of that decision. Mr Kildare’s limited appearance in the Baron proceedings concerned neither the matters nor the issues before the Bryant Tribunal.

3. The inaccurate suggestion in the Baron Tribunal’s reasons that its members had remained unaware of other claims did not alter that conclusion. On the proceedings as a whole, there was no material factual or legal overlap capable of giving rise to apparent bias. Nor was there actual unfairness. The fairness and apparent-bias inquiries are distinct, although the same factual analysis may resolve both.

4. Although unnecessary to the result, the appellant had sufficient information when the Bryant hearing began to make an informed and free choice whether to object to the lay member’s participation. A valid waiver at that point would also have covered her ongoing participation in the Baron proceedings.

5. The appellant had expressly confined the Bryant claims to matters ending on 10 August 2016 and declined the opportunity to amend. It would have been unfair to the respondents to introduce the November 2016 decision as a fresh discriminatory act only in closing submissions.

6. Further, following South Western Ambulance Service NHS Foundation v King, conduct not relied on as discriminatory cannot constitute part of conduct extending over a period under section 123(3)(a) of the Equality Act 2010. The appellant gave no timely notice that the later decision was said to have that function. The Bryant Tribunal therefore correctly lacked jurisdiction absent a just and equitable extension, which was not challenged on appeal.

• Employment Appeal Tribunal: Both appeals from Employment Tribunals sitting at London South were refused.
• Employment Tribunal (Bryant Tribunal): Judgment and Reasons dated 14 January 2019 dismissed race-discrimination and victimisation claims as time-barred.
• Employment Tribunal (Baron Tribunal): Judgment and Reasons dated 12 March 2019 dismissed unfair-dismissal, discrimination, victimisation and whistleblowing claims.