Rolec (Electrical and Mechanical Services) Ltd v J Georgiou

A hearing is vitiated where a fair-minded and informed observer, considering all the circumstances, would conclude that there is a real possibility of bias. Robust case management and appropriate assistance to an unrepresented party do not ordinarily meet that standard. However, interventions which show that a judge has reached a closed view on a live issue before hearing the evidence, makes pejorative comments about an advocate, or improperly suggests contempt by a witness may do so.

Where apparent bias is established, the parties have been denied a fair hearing. The decision must be set aside and the case reheard by a differently constituted tribunal.

The claimant succeeded before the Watford Employment Tribunal in claims arising from her constructive unfair dismissal. The tribunal found a repudiatory breach of the implied term of trust and confidence, held the dismissal unfair, and made findings on compensation and holiday pay.

The respondent appealed. Its principal grounds alleged that the Employment Judge's interventions during the claimant's cross-examination and the respondent's evidence gave an appearance of bias or predetermination. It also challenged credibility findings and an erroneous reference to the effect of the coronavirus pandemic on the claimant's 2019 job search.

The central issue was whether the conduct of the hearing would cause the fair-minded and informed observer to conclude that there was a real possibility of bias.

1. Appeal allowed. Applying the apparent-bias test in Porter v Magill [2002] UKHL 67, the EAT considered the relevant events for itself and from the perspective of the fair-minded and informed observer.

2. Most challenged interventions did not create apparent bias. The Employment Judge was entitled to manage a time-limited hearing, discourage repetitive or irrelevant cross-examination, and ensure that an unrepresented claimant understood the legal relevance of questions. The observer would also recognise that credibility and the weight of oral evidence were matters for the trial judge.

3. Three interventions crossed the line. Before hearing the respondent's evidence on mitigation, the Employment Judge stated that the claimant had mitigated her loss and that the respondent would not persuade him she had acted unreasonably. That indicated a closed mind on a live issue. The related pejorative remark about the representative's experience strengthened that impression. During the respondent's evidence, the suggestion to a witness that there might be contempt of court for failure to disclose notes went beyond legitimate enquiry. A later intervention concerning alcohol consumption could also appear to show that the Judge had already decided that issue.

4. Viewed cumulatively, those matters would cause the informed and impartial observer to consider that there was a real possibility of bias. Apparent bias denied both parties a fair hearing and necessarily vitiated the Tribunal's decision.

5. The EAT therefore set aside the judgment and remitted the matter for a fresh hearing before a completely new Employment Tribunal. Independently, the Tribunal's reference to coronavirus uncertainty affecting a job search in early 2019 was plainly erroneous; the credibility ground would not otherwise have succeeded.

• Employment Appeal Tribunal: Allowed the respondent's appeal, set aside the Watford Employment Tribunal's judgment, and remitted the claims for a fresh hearing before a new tribunal: [2023] EAT 46.
• Employment Tribunal (Watford): Held that the claimant had been constructively and unfairly dismissed and made findings on compensation and holiday pay. No citation was stated.