Dr Beena Kumari v Leicestershire Partnership NHS Trust

Apparent bias is assessed by asking whether a fair-minded and informed observer, considering all relevant circumstances, would see a real possibility of bias. Adverse findings in an earlier case do not by themselves justify a different tribunal; something more must be shown. In this case, strong findings about reports shared between claims did not establish that the lay members would prejudge the later claim. A tribunal must make its own factual findings from the evidence before it, but that does not require the earlier judgment itself to be kept from the tribunal. Its relevance, probative value and fairness may be assessed at the later hearing.

Dr Beena Kumari brought discrimination, victimisation, whistleblowing and constructive dismissal claims against her employer, Leicestershire Partnership NHS Trust. Her case was initially consolidated with the separate claim of Dr Benaris, with whom she worked, because both cases concerned two reports about events at the Trust. The claims were later deconsolidated. The tribunal in Dr Benaris’s case dismissed her claims and made strong findings about the reports.

Dr Kumari sought the recusal of the judge and lay members who had sat in that case, and later sought to exclude its judgment from her hearing. The Employment Tribunal refused recusal and reconsideration. A Regional Employment Judge subsequently allocated a different judge, left the lay members’ position open, and left control of evidence to the final hearing tribunal. The appeal challenged those decisions and the proposed use of the earlier judgment. The central question was whether the earlier findings created apparent bias or made it unfair for the later tribunal to see that judgment.

The appeal was dismissed. The Employment Tribunal was entitled to refuse recusal and to leave the earlier judgment available for consideration at the final hearing.

1. Apparent bias. The test in Porter v Magill [2002] 2 AC 357 asks whether a fair-minded and informed observer, having considered the facts, would conclude there was a real possibility of bias. The fact that a tribunal made adverse findings in an earlier case does not by itself entitle a party to a different tribunal; something more is required under Lodwick v LB Southwark [2004] IRLR 554. The findings about the Pugh and whistleblowing investigation reports were trenchant, but concerned reports assessed on the evidence in Dr Benaris’s case. The lay members could assess the later claim on its own evidence and submissions. A fair-minded observer, aware of that context, would not see a real possibility of bias. The judge had applied the correct test and was not plainly wrong.
2. Case management and impartiality. Judicial impartiality is a fundamental requirement, not a matter to be balanced against cost, inconvenience or delay. The judge’s reference to other matters did not turn recusal into a case management exercise: the real question remained whether the words used suggested a real possibility of bias. The Court also applied the appellate approach stated in Morrison v AWG Group Ltd [2006] EWCA Civ 6.
3. Procedure and reconsideration. Rules 31 and 58 of the ET Rules 2024 permitted the recusal application to be decided on the papers. Dr Kumari had obtained legal advice and provided a clear, comprehensive written argument. The judge’s refusal to reconsider was also upheld: the perceived risk from adverse findings had been foreseeable when the earlier case management orders were made.
4. The earlier judgment. The EAT accepted that the ET and EAT could exclude the judgment if receiving it would be unfair. Rule 41(3) of the ET Rules 2024 means the ET is not bound by civil rules of admissibility, but facts must still be found from the evidence in the case being heard. Under Evans v Barclays Bank plc [2025] UKSC 48, findings by another decision-maker are generally not evidence of the facts found, particularly against a person who was not a party to the earlier proceedings. That did not require the judgment itself to be excluded. The final hearing tribunal could assess its relevance, probative value and fairness. There was no reason to bar it, and withholding it would risk speculation about its contents.
5. Reasons. The reasons given made clear why each application had failed. All grounds of appeal were dismissed.

1. Employment Appeal Tribunal On 23 July 2026, dismissed the appeal against the recusal, reconsideration and evidence decisions: [2026] EAT 111 .
2. Employment Tribunal EJ Adkinson refused recusal on 26 January 2026 and refused reconsideration on 28 January 2026. On 5 June 2026, REJ Clark allocated a different judge, left the lay members’ position open, and left control of evidence to the final hearing tribunal.