Daniel Matovu v The Chambers of Martin Porter KC & Ors

An Employment Tribunal must exercise case-management discretion by reference to the arguments and evidence before it, the actual effect of the proposed order, and the balance of hardship. It errs where it rejects an amendment on speculative prejudice that was neither advanced by the respondent nor consistent with the hearing.

A party facing an allegation of bad faith is generally entitled to particulars of the facts and matters relied upon. A request for such particulars is not oppressive merely because it seeks clarification before disclosure.

Apparent bias is assessed cumulatively. An informed and fair-minded observer may find a real possibility of bias where a judge imposes unrequested restrictions on an unopposed application and determines contested applications on unsustainable grounds not advanced by the opposing party.

The claimant, a barrister formerly practising from the first respondent’s chambers, brought a third Employment Tribunal claim arising from his expulsion. At a preliminary hearing, Employment Judge Hodgson allowed one unopposed amendment only subject to restrictions, refused a further amendment concerning alleged protected acts, and refused a request for further information about pleaded allegations of bad faith.

The claimant appealed. He contended that the refusals were perverse and that the Employment Judge’s conduct created actual or apparent bias. The appeal concerned whether the case-management decisions fell outside the permissible discretion and whether the hearing, viewed cumulatively, gave rise to a real possibility of bias.

1. Appeal allowed. The Employment Judge’s refusal of the amendment to paragraph 32 fell outside the wide ambit of case-management discretion. The judge treated the amendment as substantial and relied on a broadened factual inquiry, possible further witnesses, evidential difficulty and respondent hardship. Those matters had not been advanced by the respondents, contradicted the judge’s own indication at the hearing that the amendments would not materially lengthen the case, and lacked a proper assessment of the actual factual inquiry required.

2. The proposed protected acts were already substantially within the pleaded factual case. The principal additional issue was likely to be whether the communications were protected acts under section 27(2) of the Equality Act 2010. The respondent’s case on the claimant’s alleged bad faith would in substance remain the same. The Employment Judge therefore took irrelevant matters into account and failed properly to assess the practical effect of allowing the amendment.

3. The refusal of the request for further information was also erroneous. Allegations of bad faith ordinarily require particulars of the facts and matters relied upon. The request was not properly characterised as extremely wide, oppressive, or premature disclosure. The respondents had not advanced that case and had suggested that their case could be found in earlier written closing submissions. The Employment Judge’s view that issue estoppel could not arise did not justify refusing clarification while expressly leaving estoppel for the tribunal hearing the claim.

4. The allegation of actual bias failed because there was no positive factual basis for finding that the Employment Judge was in fact biased.

5. The claimant nevertheless established apparent bias under the test in Porter v Magill. Considered cumulatively, the judge’s extensive questioning and criticism over an unopposed amendment, unrequested restrictions upon it, and adverse determinations on grounds neither argued nor sustainable would lead the fair-minded and informed observer to conclude that there was a real possibility of bias.

6. The appeal was allowed on both grounds. Employment Judge Hodgson was not to be involved further while the third claim remained before the Employment Tribunal.

• Employment Appeal Tribunal: Allowed the claimant’s appeal from the preliminary-hearing case-management decisions. It rejected actual bias but upheld apparent bias and directed that Employment Judge Hodgson take no further part in the claim.
• Employment Tribunal: Employment Judge Hodgson’s written reasons, sent on 3 January 2025, conditionally allowed one amendment and refused the amendment to paragraph 32 and the request for further information.