Bias in the Employment Tribunal – a quick guide
The recent case of Singh v Glasgow University & Anor involved the issue of bias in the Employment Tribunal. Dr Singh is of English nationality and Sikh religion. He brought an Employment Tribunal case against his employers, Glasgow University, and colleagues in 2009. At the Employment Tribunal the Employment Judge gave permission to discharge Professor Gusterson, one of the Respondents. Dr Singh appealed against this decision, basing the reason for his appeal on the alleged bias of the Employment Tribunal against him. He was, he asserted, English and from an ethnic minority, and that there was anti-English sentiment in the Employment Tribunal. The Employment Appeal Tribunal emphatically rejected Dr Singh’s case, remarking that Dr Singh’s comments were “an unacceptable slur on the integrity of the Scottish judiciary”.
In this post we’ll take a look at bias in the Employment Tribunal and consider when such a ground of appeal to the Employment Appeal Tribunal may be appropriate. We’ll do so by looking at the following elements:
- What constitutes bias in the Employment Tribunal?
- When should you make a complaint of bias?
- Is it a good idea to base your appeal on the grounds of bias?
- How do you appeal to the Employment Appeal Tribunal?
If it’s helpful for you, we analysed the case of Singh v Glasgow University & anor in this post.
What constitutes bias in the Employment Tribunal?
There are three “types” of bias that can be pleaded:
- Actual bias
- Automatic disqualification
- Real possibility of bias
Actual bias is where the Judge allows their decision to be influenced by partiality or prejudice on their behalf. This would entail (as the name suggests) showing that the Judge is actually biased. This is, obviously, difficult to do. If there is a question as to the partiality of the Judge then the best ground to appeal on is the real possibility of bias as there is a lower burden of proof for the Claimant to achieve.
Automatic disqualification is where the Judge (or a family member or partner) has an interest in the outcome of the case which could lead their partiality to be called into question. The first question to ask is: does the Judge have an interest (normally pecuniary or proprietary such as, for example, ownership of shares) that could realistically affect the Judge’s decision? If the Judge (or a family member of partner) does have such an interest then the next question to ask is is the potential effect of the interest so small as to be incapable of affecting the Judge’s decision? If there is a doubt relating to the second question then there should be a presumption that the Judge should be disqualified from presiding on the case. However, the question that should not be asked is “does the Judge have some link to a party involved in the case?”. The above test should be used instead.
Real possibility of bias
The test of whether a real possibility of bias exists is the normal ground on which a bias appeal is based. In order to prove that there is a real possibility of bias the party must show that:
- There were circumstances that exist(ed) which suggests that the Judge was biased
- Those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the tribunal was biased
The circumstances alluded to in the above test are, generally, five-fold:
- A personal friendship or animosity between the judge and any member of the public involved in the case;
- The judge is closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the outcome of the case
- The judge has previously in a case rejected evidence of a person in such outspoken terms as to throw doubt on his ability to approach that person’s evidence with a fair mind
- The judge has expressed views, particularly in the course of a hearing, in such extreme and unbalanced terms as to throw doubt on their ability to try the issue with an objective judicial mind; and/or
- There are real grounds for doubting the ability of the Judge to ignore extraneous considerations, prejudice and predilections and bring an objective judgment to bear on the issues
Issues such as the judge’s nationality, ethnicity, social background, educational background, employment background and previous political associations (among others) will normally be insufficient grounds for proving a real possibility of bias.
When should you make a complaint of bias?
An application for appeal on the ground of bias can be made at any stage in the proceedings, including during hearings.
Is it a good idea to base your appeal on the grounds of bias?
You would need every convincing evidence of a real possibility of bias (or of a Judge’s interest in the outcome of a case) to justify submitting an appeal on the ground of bias. The judges in the Employment Appeal Tribunal, quite understandably, treat such allegations extremely seriously and making an unfounded allegation may seriously affect the potential of your case to be upheld on appeal. It’s generally better to appeal on grounds other than bias – for example perversity or a failure to adequately explain a decision.
How do you appeal to the Employment Appeal Tribunal?
You must submit a notice of appeal to the Employment Appeal Tribunal within 42 days of the date when the written reasons for the decision are sent to the parties. You should also send a skeleton argument of the Appeal at the same time as submitting the notice.