I'm not biased! Judges and employment law

Andrew Scott-Howman, Partner | Wednesday 4 August 2004

Most professions offer fertile grounds for gossip - at least amongst members of a particular discipline.

The legal profession - I'm embarrassed to admit - is no different.

Lawyers love to know about what is going around town - and what their colleagues are up to.

Gossip like this is all fine - and largely harmless - unless, of course, it leads to real consequences - most notably in the form of a concern about bias in a decision maker (such as a Judge).

Bias is a very bad thing for decision makers indeed. As part of the ordinary rules of natural justice, a person who is biased in favour of one party or another should not usually be allowed to sit in judgment of those parties.

A recent decision of the English Employment Appeal Tribunal illustrates some of the difficulties that can arise where there is some concern about the bias on the part of a decision maker.

A case in Breeze Benton Solicitors v Weddell (Unreported, Employment Appeal Tribunal, London, 18 May 2004) was an appeal from a decision of the Stratford Employment Tribunal. The origin of the appeal was an earlier case that had been decided in June 2001. That earlier case had involved a complaint by two former employees of a law firm concerning unlawful deduction of wages. The law firm was represented by one of its partners, Michael Reilly.

Mr Reilly said that, when he arrived to conduct the case on behalf of his firm, the Chairman of the Tribunal - a Mr Pritchard Witts - made a number of disparaging remarks about both him and his firm. In fact, he later complained to the Lord Chancellor's department that Mr Pritchard Witts had said that:

• he was surprised that Mr Reilly's firm was still in business;
  
  
• that he wondered if the firm was defending the claim because it was "bust";
  
  
• that he told Mr Reilly to sit down when he attempted to answer the first two statements; and
  
  
• he said that he found Mr Reilly's behaviour - and that of his firm - hard to understand.

It seems that the earlier case was beset with difficulties. Amongst other things, Mr Reilly felt so aggrieved by what he said Mr Pritchard Witts had told him, he withdrew as counsel, and instructed a different lawyer (who appears to have been largely unfamiliar with the background to the case).

In any event, Mr Pritchard Witts found in favour of the employees - and ordered the firm to make payments to them.

The issue before the Appeal Tribunal was, however, in respect of a subsequent case. That case also involved a claim by an employee of Mr Reilly's firm - and involved complaints of unfair dismissal and sex discrimination. An issue arose because the case was set down to be heard by Mr Pritchard Witts. Mr Reilly objected to this - because he said that, as a result of the earlier case, Mr Pritchard Witts had demonstrated that he was biased against the firm.

Mr Reilly made extensive submissions to the Tribunal (which was made up of Mr Pritchard Witts and some lay members) about his concerns. The Tribunal took account of these different concerns, but decided that it could appropriately go on to hear the case. It appears that one of the reasons that the Tribunal felt comfortable in proceeding was an assurance by Mr Pritchard Witts that he was not biased.

The decision on appeal does not record the substantive findings of the first Tribunal. The appeal was confined to questions of bias. On that point, the Appeal Tribunal found that the law required it to consider not whether Mr Pritchard Witts was actually biased against Mr Reilly or his firm - but whether there was a real possibility of an independent observer concluding that "some illegitimate extraneous consideration may have influenced the decision".

Put another way, justice must not only be done - it must be seen to be done.

Because of what the Appeal Tribunal described as the close factual connection between the two Tribunal cases - and the fact that "robust" orders had been made in the first case, there was a real possibility of bias - and the case should not have proceeded to be heard by Mr Pritchard Witts. As a result, an order was made requiring the case to be remitted to a freshly constituted Tribunal.

This case illustrates the difficulties that can arise where, because of some close (and often personal) connection with one or more of the parties, there is an appearance of bias on the part of the decision-maker. In such cases, justice must be seen to be done - as well as being done as a matter of fact - and any factors which might tend to lead a reasonable appearance of bias may cause a decision to be made void.