Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

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:

  1. What constitutes bias in the Employment Tribunal?
  2. When should you make a complaint of bias?
  3. Is it a good idea to base your appeal on the grounds of bias?
  4. How do you appeal to the Employment Appeal Tribunal?

What constitutes bias in the Employment Tribunal?

There are three “types” of bias that can be pleaded:

  1. Actual bias
  2. Automatic disqualification
  3. 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.

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:

  1. There were circumstances that exist(ed) which suggests that the Judge was biased
  2. 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:

  1. A personal friendship or animosity between the judge and any member of the public involved in the case;
  2. 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
  3. 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
  4. 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
  5. 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.

About Chris Hadrill

Chris is a specialist employment lawyer at Redmans. He specialises in contentious and non-contentious employment matters, including breach of contract claims, compromise agreements and Employment Tribunal cases. He writes on employment law matters on a variety of websites, including Direct 2 Lawyers, Lawontheweb.co.uk, LegalVoice, the Justice Gap and his own blog. Contact Chris by emailing him at chadrill@redmans.co.uk

Tagged with →  

Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

Share →

One Response to Bias in the Employment Tribunal – a quick guide

  1. […] dismissal Bias in the Employment Tribunal – a quick guide Singh v Glasgow University & Anor – Bias in the Employment Tribunal By admin On July 23, […]

Our awards

Request a callback

    Your first name (required)

    Your last name (required)

    Your email (required)

    Your telephone number (required)

    Brief details of your enquiry

    Contact us

    Please feel free to discuss your own position and concerns. Contact your nearest office on:

    T: 020 3397 3603
    E: enquiries@redmans.co.uk
    W: www.redmans.co.uk

    Testimonials

    4.76 Average

    235 Reviews

    Paul O

    Chris & Rana guided me through a redundancy discussion. Prompt & patient assistance with the documents & meetings. Clear advice & fast responses regarding negotiations. Would definitely recommend & would use again without hesitation.

    Posted 1 month ago

    Anonymous

    Outstanding, efficient service. Thank you so much!

    Posted 1 month ago

    Jaswant S

    Very very happy with the good service I got Thank you so much for your help

    Posted 1 month ago

    Anonymous

    Mel and Chris were fantastic and supportive throughout! 1000% recommend.

    Posted 1 month ago

    Emma D

    Good responsive service

    Posted 1 month ago

    Mike T

    Good efficient service.

    Posted 1 month ago

    Brenda G

    Very professional and helpful

    Posted 1 month ago

    Charles A

    Chris Hadrill was recommended to me when I found myself in need of a solicitor at very short notice. He contacted me almost immediately to arrange a call. Chris handled my case in a professional and timely manner and kept me notified throughout. Chris inspired confidence and made me feel I was being cared for. If ever I'm in need of legal representation, I would not hesitate to contact Chris. And will gladly recommend him to family and friends.

    Posted 1 month ago

    Rosalind R

    I was very happy with the service that I received from Redmans Solicitors. They were able to advise me accordingly with regards to my employment matter and stay within the agreed costing.

    Posted 1 month ago

    Karl B

    Caroline and Chris were so helpful and friendly. Couldn't of asked for a better service.

    Posted 1 month ago

    Dimitrios P

    Excellent, professional service, in time and within the expected value.

    Posted 1 month ago

    Barbara K

    Everything quickly and fairly. Very professional. Thank you.

    Posted 1 month ago

    Sabrina J

    I received a efficient professional service during the whole process of liasing between myself and my former employer to getting all forms signed and receiving my redundancy payment in full in the summer of this year.

    Posted 1 month ago

    Anonymous

    I received legal advice on a redundancy settlement agreement from Redmans Solicitors and was very impressed by the quality of their service. Chris Hadrill is highly experienced in settlement matters and was especially understanding of the particulars of my case, going out of his way to ensure that it was resolved quickly and with the utmost professionalism. I have no hesitation in recommending Redmans to anyone in need of employment advice and settlement resolution.

    Posted 1 month ago

    Anonymous

    Excellent service, with full explanations of everything needed. Both Chris and Mel answered all emails very promptly and were personable and efficient.

    Posted 1 month ago

    Anonymous

    I would like to thank Chris Hadrill, in particular who handled my case, for all his hard work, expertise and dedication. He listened with empathy and offered suitable advice, which made me feel valued and confident through a difficult time. I would highly recommend Chris and the team at Redmans Solicitors. Thank you.

    Posted 1 month ago

    Yann G

    Yann Guezennec / Chris Hadrill - Thanks for the detailed, informed and professional advice for my settlement. When comprise is the rule I felt we could have been maybe a bit more aggressive from the start. However an acceptable outcome considering the situation. Thank you

    Posted 1 month ago

    Valentina D

    Great service from Mel, she was very good at explaining every part of the settlement agreement and very efficient dealing with the HR team. Very professional team, I would definitely use them again in future if the opportunity came up.

    Posted 1 month ago

    Olaf S

    I was very happy with the service that I have received. Thank You Regards

    Posted 1 month ago

    Rebecca A

    I had a wonderful solicitor called Caroline who was so helpful and gave me all the information I need and explained everything in detail so I was crystal clear. Would highly recommend if you are in need of a solicitor!

    Posted 1 month ago

    Gareth J

    Very efficient, helpful and pragmatic support from Caroline. Happy to work with my requirements / suggestions but also made some very good points which helped to achieve a higher settlement amount. Would highly recommend Caroline and Chris.

    Posted 1 month ago