Did a comment by an Employment Judge to a representative that there was no need to lie suggest an appearance of bias?
No, held the EAT, in Balakumar v Imperial College of Health Care NHS Trust.
The Claimant brought claims of discrimination and unfair dismissal. At the hearing, the Claimant's applications for the Employment Judge to recuse herself, and for the late admission of documents (a tape and a transcript), had been refused. The Claimant was granted a short adjournment to allow her barrister to explain these to her.
When the hearing resumed, her barrister stated that she would seek a further adjournment to lodge an appeal. The Judge mis-heard and, believing that she had been misled as to the earlier adjournment, said words to the effect of: 'There is no need to lie'. This further application was not granted, the hearing proceeded, and the Claimant's claims were dismissed. The Claimant appealed on the basis that the remark was an unwarranted attack on her barrister and could give rise to an appearance of bias.
The EAT dismissed the appeal. It held that a fair-minded and informed observer, having considered the facts, would have concluded that there was no possibility of bias. In contrast, the case of El Faragy v El Faragy, which the Claimant relied upon, involved incidental injections of sarcasm, including the mocking and disparaging of a litigant in person. The comment was careless and tactless, but in its context (the mishearing, the swift retraction, and the various applications made on behalf of the Claimant) it was not evidence of apparent bias.
Thanks to James English of Ward Hadaway for preparing this case summary.