Judges are entitled to robustly manage the cases that come before them, but what they cannot do is give even an impression that they are taking sides. In a case on point, an employment judge’s interventions during a hotly contested hearing were found to have crossed the line into apparent bias.
Following a hearing, which was held via video link during the COVID-19 pandemic, the employment judge upheld an office administrator’s complaint of constructive unfair dismissal. The employer challenged his decision before the Employment Appeal Tribunal (EAT), asserting that his interventions indicated that he had pre-determined important issues in the case.
Ruling on the matter, the EAT rejected most of the employer’s complaints. The employment judge was anxious to ensure that the claimant, who was acting in person, was not disadvantaged by her lack of legal representation. Most of his interventions fell into the category of legitimate case management.
In allowing the appeal, however, the EAT found that some of his remarks suggested that he had made up his mind on certain points before hearing full evidence. He had, amongst other things, questioned the employment law experience of the employer’s representative in an uncalled-for and pejorative manner and had expressed a preliminary view that the employer’s case on one issue was hopeless.
Adopting the neutral position of an informed and impartial observer, the EAT found that certain of the employment judge’s interventions gave rise to an appearance of bias. On at least three occasions during the hearing, he gave the appearance of having taken a side. The EAT directed a fresh hearing of the case before a differently constituted Employment Tribunal.