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The case of Singh v Glasgow University & Anor demonstrates that allegations of bias in the Employment Tribunal – especially when they relate to race discrimination on the part of the Tribunal – should be approached with extreme caution. Unfounded allegations will result in an extremely irritated Employment Appeal Tribunal and the probability of costs being awarded against the party making the allegation.

The facts in Singh v Glasgow University & Anor

Dr Singh (“the Claimant”) is of English nationality and Sikh religion. He submitted claims to the Employment Tribunal in 2009 against his employer, Glasgow University, and colleagues at Glasgow, including a Professor Gusterson. The Employment Tribunal discharged Professor Gusterson from the proceedings, something to which the Claimant objected. He submitted a notice of appeal to the Employment Appeal Tribunal alleging, among other things, that the Employment Tribunal was biased against English litigants.

The law relating to bias in the Employment Tribunal

The Employment Tribunal has a duty to act fairly to litigants. An allegation of bias on the Tribunal’s behalf is therefore extremely serious. There are three categories of bias that can be alleged in the Employment Tribunal:

  1. Actual bias
  2. Automatic disqualification
  3. A real possibility of bias

Actual bias is a claim that the litigant has proof that the judge in their case was actually biased against them for some reason. This allegation has an extremely high burden of proof and is almost impossible to demonstrate. If a litigant has doubts as to the partiality of a judge it is therefore better to attempt to demonstrate that there was a real possibility of bias on a judge’s behalf, a claim which has a lower burden of proof.

Automatic disqualification is when the judge is disqualified from adjudicating upon a case because of some general or pecuniary interest that they (or a spouse, partner or family member) possess. The litigant seeking to prove this must first show that the judge has an interest in the case (such as a shareholding in one of the parties). The party must then show that the potential effect of the interest is large enough to be capable of affecting the judge’s decision. If there is doubt as to this then there is a presumption that the judge should be disqualified from the case.

Demonstrating a real possibility of bias is the normal means by which parties seek to demonstrate bias. The party must show:

  1. That circumstances exist which suggest the judge is biased
  2. That those circumstances would lead a fair-minded and informed observe to conclude that there was a real possibility that the tribunal was biased?

The key factor in the above test is to show that there was a public perception of the possibility of unconscious bias. Factors which may demonstrate a perception of unconscious bias include personal friendship or animosity between the judge and any member of the public involved in the case or that the judge was closely acquainted with any member of the public involved in the case (among others).

The Employment Appeal Tribunal’s judgment in Singh v Glasgow University & Anor

The Employment Appeal Tribunal emphatically found against Dr Singh. It found that Dr Singh had not succeeded in showing that there was a real possibility of bias, let alone that there was actual bias displayed by the Tribunal. The EAT went on to state that Dr Singh’s suggestion of anti-English bias was “an unacceptable slur” to the integrity of the Scottish judiciary.

Our specialist employment lawyers’ thoughts on Singh v Glasgow University & Anor

This case shows that allegations of bias in the Employment Tribunal should be approached with caution by parties. The Employment Appeal Tribunal (“EAT”) takes such allegations extremely seriously and it is suggested that, if possible, an alternative ground of appeal should be utilised to avoid irritating the EAT.

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

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