Human rights

Lawal v Northern Spirit Ltd (2003) IRLR 538

The House of Lords held that the public's confidence in the system tended to be undermined by the practice whereby QCs appointed to sit as part-time judges in the Employment Appeal Tribunal (EAT) are not restricted from appearing as counsel before a panel of the EAT consisting of one or two lay members with whom they had previously sat in a judicial capacity.

The practice should be discontinued.

In determining whether there is bias in terms of the right to a hearing before an impartial tribunal under article 6(1) of the European Convention on Human Rights, or the common law test of bias, the question is whether a fair-minded and informed observer, having considered the given facts, would conclude that there was a real possibility that the tribunal was biased.

The key to this test is public perception of the possibility of unconscious bias.

Tribunal procedure

Stanley Cole (Wainfleet) Ltd v Sheridan (2003) IRLR 885

The Court of Appeal dismissed an appeal against the EAT's ruling reported at (2003) IRLR 52.

An employment tribunal's failure to draw the attention of the employer's representative to authorities that formed the basis of its refusal of an application for a review did not amount to a breach of natural justice and the right to a fair hearing.

The question in such circumstances is whether what happened was seriously irregular and unfair.

It is not a serious irregularity if a judge or a tribunal cites in a judgment decided cases which have not been referred to in the course of the hearing.

Lord Justice Ward said: 'judicial research would be stultified if that were so, and if the parties had to be given the opportunity to address each and every case eventually set out in the judgment'.

The authority must first be shown to be central to the decision and not peripheral to it.

It must play an influential part in shaping the judgment.

Nor does it matter that the authority was not mentioned if its point was so clear that a party could not have made any useful comment and explanation.

The authority must alter the way the issues have been addressed to a significant extent, so that it truly can be said by a fair-minded observer that the case was decided in a way which could not have been anticipated by a party fixed with such knowledge of the law and procedure as it would be reasonable to attribute to him in all the circumstances.

However, the Court of Appeal said this was not intended to be 'an all-encompassing test'.

In addition, a material injustice must be shown to have resulted.

The hearing will not have been unfair if there has been no substantial prejudice to the party claiming to be aggrieved.

The vital question is whether it would have made any difference to the outcome of the party who had been armed with the authority.

By Martin Edwards, Mace & Jones, Liverpool