Swansea City & County Council v D Abraham & Ors

Apparent bias requires a real possibility of bias in the eyes of the fair-minded and informed observer. The inquiry is fact-sensitive and must rest on identified circumstances, rather than general assertion or speculation.

The pre-trial precautionary principle is a pragmatic reason for voluntary recusal in a doubtful case. It does not alter the Porter test or lower the threshold for mandatory recusal. A former professional relationship which ended more than a decade earlier, without an identified factual overlap capable of influencing case management, did not require recusal.

About 1,000 employees brought equal pay and indirect discrimination claims against the Council. The Employment Tribunal treated the claims as a multiple. Employment Judge Moore was allocated to oversee case management.

Before becoming a salaried judge, she had been a solicitor at a firm acting in earlier union-backed equal pay litigation involving Welsh local authorities, including the Council. The Council sought her recusal, relying on possible overlap of parties, unions, roles and issues. She refused and made case-management orders.

The Council appealed the refusal to recuse and, contingently, the case-management orders. The central issue was whether the fair-minded and informed observer would see a real possibility of bias at the first case-management hearing.

1. Both appeals were refused. The Employment Judge had correctly concluded that the test for apparent bias in Porter v Magill, [2002] 2 AC 357, was not met on 25 November 2024.

2. The test asks whether the fair-minded and informed observer, informed of the relevant circumstances, would conclude that there was a real possibility of bias. It is a fact-sensitive assessment. It requires close attention to the essential facts, but a real possibility must be founded on reality rather than general assertions or speculation.

3. The precautionary principle does not form part of, or reduce the threshold in, the Porter test. Before trial, it may properly lead a judge voluntarily to recuse where the application of that test is genuinely unclear or a later basis for apparent bias may emerge. If the test is clearly met, recusal is mandatory. If it is clearly not met, the judge must continue. On an appeal from a refusal to recuse, the appellate court applies the Porter test itself.

4. The applicant bears the onus of establishing a duty to recuse. Once a particular basis is identified, the judge must examine it closely and candidly disclose relevant knowledge. The judge was not required to investigate historic litigation to search for unremembered material where the alleged overlap was expressed only in general and speculative terms.

5. Here, the observer would recognise that any solicitor-client relationship had ended more than a decade earlier. Knowledge of equal pay law and litigation practice did not itself create apparent bias. The judge’s fading recollection, the absence of a specified factual overlap capable of affecting case management, and the distinction between case management and deciding evidence or merits all supported the refusal. Future vigilance remained necessary if more specific overlap emerged.

6. It was neither procedurally unfair for the judge to rely on Locabail nor erroneous for her to determine the recusal application herself. Such applications are conventionally heard by the judge asked to recuse. The later reasons for refusing to defer case management were adequate and the orders had been complied with.

• Employment Appeal Tribunal: The Council’s appeals were refused: [2025] EAT 93.
• Employment Tribunal: On 25 November 2024 Employment Judge Moore refused the Council’s recusal application and made case-management orders. Written reasons for the recusal decision were provided on 6 January 2025.