Employment Tribunal ‘Apparent Bias’ Appeal Dismissed

Posted: 21st November 2012

A highly unusual set of circumstances in which two respondents to an employment tribunal claim were appointed as lay members of the tribunal service during the hearing of the case gave rise to allegations of ‘apparent bias’ by the unsuccessful claimant. However, the allegations were dismissed by the Employment Appeal Tribunal (EAT) on the basis that the claimant had been fully informed of the situation and had waived her right to ask the panel which heard her case to recuse itself.

Following the dismissal of race discrimination and other claims against her employers by the London Central Employment Tribunal in 2010, the claimant had argued before the EAT that the proceedings were a nullity due to apparent bias. Two of the respondents to her case had been offered appointment as lay members to the employment tribunal – one of them to the London Central area, the other to London South - prior to the hearing and were appointed after it had begun.

However, in dismissing the appeal, the EAT said that, after the circumstances were explained to her by the tribunal, the claimant had reached a free and unpressured decision, after taking lengthy legal advice, not to seek the panel’s recusal.