Employment

Employment Appeal Tribunal - part-time judge appearing as counsel - real possibility of bias

Lawal v Northern Spirit Ltd: HL (Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Steyn, Lord Millett and Lord Rodger of Earlsferry): 19 June 2003

The applicant's complaint of race discrimination and victimisation against his former employers was dismissed by an employment tribunal.

He appealed, and in the Employment Appeal Tribunal the employers were represented by counsel who had previously sat as a part-time judge with one of the lay members.

The applicant objected, contending that there was a real possibility of bias, contrary to article 6(1) of the European Convention on Human Rights and at common law.

The appeal was adjourned and re-listed for hearing before a differently constituted tribunal which held ([2002] ICR 486) that there had been no possibility of bias.

The applicant's appeal on the issue of bias was dismissed, by a majority, by the Court of Appeal [2002] EWCA Civ 1218; [2002] Gazette, 28 November, 33; [2002] ICR 1507.

He appealed.

The applicant in person; Sarah Moore (instructed by the Treasury Solicitor) as amicus curiae; John Cavanagh QC (instructed by the Treasury Solicitor) for the Lord Chancellor's Department, intervener; the employers did not appear and were not represented.

Held, allowing the appeal, that a fair-minded and informed observer might take the view that there was a real possibility that a lay member might be subcon-sciously biased in favour of the submissions of counsel who had in the past sat with him or her as a judge; and that the practice whereby counsel could appear before a tribunal including such a lay member undermined public confidence in the system and should be discontinued.

(WLR)