Would lead a fair-minded and informed observer conclude that there was a real possibility that an employment tribunal was biased because a lay member sat on two cases involving the same Claimant and employer Respondent?
No, held the EAT in Lyfar-Cisse v Brighton and Sussex University Hospitals NHS Trust and ors.
Dr Lyfar-Cisse brought two claims against her employer. One was heard by an employment tribunal headed by EJ Bryant QC and another by EJ Baron. Both claims were dismissed. One of the lay members (Ms Campbell) sat in both cases. There was a potential common thread of a decision made by a Ms Cashman that was said to be relevant to both cases.
Lord Fairley, dismissing the Claimant's appeals in both cases said:
"...a fair minded and informed observer with knowledge of the issue which the Bryant Tribunal had to determine and also of the evidence which Ms Campbell had heard about the Cashman decision during the Baron Tribunal hearing would not have seen a real possibility of bias. Rather, the fair minded and informed observer would have concluded that all that the Bryant Tribunal was doing was determining what issues were properly before it...Nothing that Ms Campbell had previously learned about the substance of the Cashman decision could conceivably have affected her decision on that issue in her role as a member of the Bryant Tribunal panel. There was likewise nothing in the limited discussion of the Cashman decision during the Bryant Tribunal that would cause the fair minded and informed observer to consider that there was any real possibility of bias in Ms Campbell's consideration of the evidence about the Cashman decision that was led before the Baron Tribunal."
It it important that Lord Fairley appears to have based his decision on the fact there was limited overlap in the issues. It is possible that in other cases where the overlap is greater, that there could be apparent bias. A party must object to a member (or judge) if an appeal is likely to succeed though.
Thanks to Matthew Jackson of Albion Chambers for preparing this case summary.