Hafeez Ahmed v Department for Work and Pensions

The test for apparent bias is whether the fair-minded and informed observer, having considered all the facts, would conclude that there was a real possibility that the tribunal was biased. A previous refusal of permission to appeal on a bias allegation does not prevent reliance on the same material together with significant later events. The whole factual picture must be assessed afresh.

Where a judge recuses themself because of a party’s conduct, that event may materially strengthen the appearance created by earlier intemperate comments of a lay member about that party. A lay member’s attempt to replace such comments with a more restrained account may further support an appearance that the member was concealing their true views. If the combined circumstances create apparent bias, the remitted hearing must be before a fresh tribunal panel.

The claimant brought disability discrimination and victimisation claims against the Department for Work and Pensions. An Employment Tribunal chaired by Employment Judge Butler, with Mrs Fox and Mr Greatorex as lay members, dismissed the claims in 2019.

On an earlier appeal, the claimant relied on Mrs Fox’s responses to allegations of bias. Permission to appeal on that ground was refused, although the appeal was later allowed in part on other grounds and remitted to the same tribunal. At a subsequent case-management hearing Employment Judge Butler recused himself because of the claimant’s behaviour. Regional Employment Judge Findlay directed that the rehearing proceed before a new judge but the same lay members.

The claimant appealed that direction. The central issue was whether Mrs Fox’s earlier comments, considered with the judge’s later recusal, gave rise to apparent bias and whether issue estoppel prevented that combined case being advanced.

1. Appeal allowed. The remitted claims were to be reheard by a newly constituted Employment Tribunal.

2. The Tribunal applied the apparent-bias test stated in Ansar v Lloyds TSB Bank Plc [2006] EWCA Civ 1462: whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias. On appeal, the EAT had to decide that question for itself by considering the proceedings as a whole.

3. The earlier refusal of permission to appeal did not create an issue estoppel preventing the claimant from relying on Mrs Fox’s emails with later events. The claimant was not simply repeating the earlier allegation. Employment Judge Butler’s subsequent recusal, expressly because of the claimant’s behaviour, gave the emails a materially different complexion. The fair-minded observer would assume that the judge had not recused himself lightly and would see the recusal as connected with the claimant’s earlier conduct before the same panel.

4. Mrs Fox’s first email used intemperate and personalised language, including a collective expression of the panel’s view. It created an appearance of animosity inconsistent with deciding the case solely on its merits. Her contemporaneous notes also potentially conflated the claimant’s conduct as a representative at the hearing with his conduct in the workplace, a feature capable of reinforcing apparent bias.

5. Her subsequent revision of the email did not allay that concern. Applying the guidance in British Car Auctions Ltd v Adams, the EAT held that the revision could appear to conceal her true views after she understood the nature of the appeal. Taken with the judge’s recusal, the complete picture established apparent bias concerning Mrs Fox and, indirectly, Mr Greatorex, whose views Mrs Fox appeared to represent.

Following written submissions after the hearing, the parties agreed, and the EAT ordered, that the matter be remitted to a fresh tribunal panel.

• Employment Appeal Tribunal: Allowed the appeal against Regional Employment Judge Findlay’s case-management order and remitted the claims to a newly constituted tribunal: [2025] EAT 118.

• Employment Tribunal: Regional Employment Judge Findlay directed that the remitted hearing be before a new Employment Judge but the original lay members. The EAT set aside that arrangement.

• Employment Tribunal: The original tribunal dismissed the claimant’s discrimination and victimisation claims in a reserved judgment sent on 15 August 2019. A previous EAT appeal was allowed in part on other grounds and remitted for rehearing.