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Allegation of Bias

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Thanks to Ed McFarlane of Deminos HR for preparing this case summary

Should allegations of bias at an employment tribunal be dealt with by an application for a review (or reconsideration)?

No, held the EAT in Papajak v Intellego Group, the correct course is to appeal. The Claimant brought proceedings in person. At the hearing, a disagreement over the order of witnesses arose, and the Claimant left the proceedings without giving evidence, having been warned by the employment tribunal that her claims (which she had to prove) might fail without her evidence. The employment tribunal considered the information available to it, including the pleadings and all the witness statements, and dismissed the claims.

The Claimant sought a review (under Rule 35 of the 2004 Rules) making an unfounded allegation of bias against the original Employment Judge and arguing unsuccessfully that she should not hear the review. Rule 35 provided that the Regional Employment Judge or Vice-President of Tribunals could hear a review application where it was 'not practicable' for the original Employment Judge to do so. The Employment Judge refused the review application.

On appeal, the EAT rejected the Claimant's arguments, holding that 'practicable' is clearly intended to deal with cases where the original Employment Judge is physically unavailable, unwell or deceased. 'Practicable' does not mean 'convenient' but 'feasible'. Holding that in bias cases, the correct course would be to appeal, the EAT noted that it would be undesirable if one Employment Judge were to have to consider an allegation of bias against a fellow Employment Judge. Whilst this judgment considered the 2004 Rules of Procedure, the 2013 Rules provide for a similar process for reconsideration under Rule 72, so this judgment is likely to be of continuing relevance.

The EAT noted that with the Claimant having deliberately chosen not to participate in proceedings, there was no proper basis for the Claimant to have appealed on the ground that the decision was made in her absence. The EAT also noted that the Claimant's evidence was hearsay and the employment tribunal could not disregard well-established principles of law in regard to the admissibility of and weight given to hearsay.