Tribunal case aborted after secret approach

Posted: 25th June 2014

EATAn ‘extraordinary’ case in which police officers contacted an employment judge in the midst of a lengthy hearing, passing information to her which was prejudicial to one of the parties, has resulted in important guidance being issued by the Employment Appeal Tribunal (EAT).

An Employment Tribunal (ET) hearing had been on foot for almost 30 days when the officers made their approach to the judge, giving her details of ‘intelligence’ received about the employer and an ongoing criminal investigation.

The judge, as requested, kept the fact of that contact to herself for a week before revealing what had happened to the parties and lay members of the panel. On the employer’s application, the panel recused itself from further hearing the case.

In challenging that decision, the employees argued that there was no proper basis for the panel to disqualify itself. It was submitted that a fair minded and impartial observer would have expected the judge to ‘compartmentalise’ the information imparted by the officers and to put it out of her mind. Aborting the proceedings at such a late stage would lead to huge wastage of time and costs and would result in the employees being denied access to justice.

However, in dismissing the employees’ appeal, the EAT ruled that the appearance of justice had demanded that the panel recuse itself. Although there could be an innocent explanation for what happened, the police officers’ conduct was ‘strongly suggestive of an improper attempt to interfere with justice’.

Giving guidance for the future, the EAT concluded, “Where a third party proffers information or opinion about the merits of a case, or the parties to it, to a tribunal, without being invited to do so, the parties should be made aware of what has happened without delay."