Naseem Suleman v General Optical Council

Apparent bias is assessed in two stages. The court first establishes the relevant circumstances and then asks whether a fair-minded and informed observer would conclude that there was a real possibility of bias. A decision-maker’s ongoing and financially significant relationship with an organisation connected with the allegations may satisfy that test, even where the decision-maker has no interest in the particular branch involved. Fine distinctions in corporate structure do not determine the appearance created. In a lengthy multi-member disciplinary hearing, apparent bias affecting one member may vitiate the committee’s decision as a whole.

Naseem Suleman, a registered student dispensing optician, appealed under Opticians Act 1989, s. 23G(1)(a), against a Fitness to Practise Committee decision finding misconduct and directing that her name be erased from the register. The appeal challenged the refusal to adjourn the hearing and alleged apparent bias arising from one committee member’s former directorship, shareholding and continuing locum work for Specsavers. The principal issue was whether those connections created a real possibility of bias in a case involving allegations said to undermine trust in, and public confidence in, Specsavers.

1. Appeal allowed. The matter was remitted to the General Optical Council for hearing before a differently constituted Fitness to Practise Committee.
2. The assessment of apparent bias has two stages. The court must establish the relevant circumstances and then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the tribunal was biased. The observer is neither complacent nor unduly suspicious.
3. Automatic disqualification principles apply where a decision-maker has a personal or pecuniary interest in the outcome. Separately, apparent bias may arise from a relationship which creates a realistic concern that the decision-maker may consciously or unconsciously favour a party, its witnesses or its evidence.
4. Mr Pinnington’s former substantial and long-lasting relationship with one Specsavers branch was not, by itself, necessarily sufficient. His subsequent locum work for numerous Specsavers branches, together with the reasonable inference that he hoped to obtain further centrally allocated work and derived significant income from it, made the relationship ongoing and materially significant.
5. The relevant allegations concerned conduct said to have breached trust in colleagues and Specsavers and undermined public confidence in Specsavers and the profession. The fair-minded and informed observer could therefore conclude that Mr Pinnington might favour complaints advanced by Specsavers personnel or resolve factual and credibility disputes against the appellant. The fact that he had no financial interest in the Huntingdon or St Ives branches did not remove that appearance.
6. Mr Pinnington should have recused himself. His participation vitiated the Committee’s decision as a whole. The fact that he was one of five members did not save the decision, since the panel had sat for ten days and the influence of an individual member’s views could not be known.
7. It was unnecessary to determine the separate challenge to the refusal to adjourn.

• General Optical Council Fitness to Practise Committee: after a hearing, found eight allegations proved, determined that the appellant was guilty of misconduct, found her fitness to practise impaired and directed erasure from the register.
• High Court (Administrative Court): allowed the appeal on apparent-bias grounds and remitted the matter for hearing before a differently constituted Committee.