Thursday, January 17, 2019

Telling a Barrister Not To Lie Is Not Biased!

The Employment Appeal Tribunal (EAT) has ruled that there was no appearance of bias justifying the overturning of an Employment Tribunal's decision when an Employment Judge told a Claimant's barrister during a Hearing that there was "no need to lie."

Mrs Balakumar was bringing an Employment Tribunal Claim. She was represented at the Hearing by 2 barristers.

Proceedings appear to have been quite difficult and a considerable amount of time was taken up dealing with applications, including one by the Claimant to admit additional late evidence. One of the lay members of the Tribunal subsequently expressed the view that one of the Claimant's barristers had given the appearance of being hostile and aggressive to the Tribunal.

Following the decision on the second application, Counsel in question asked for an adjournment to explain the decision to the Claimant. This appears to have been granted reluctantly and the adjournment then lasted for longer than had been granted. Following their return to the Tribunal, the barrister asked for a further adjournment in order to appeal the decision on the application to the EAT.

The Employment Judge might perhaps be forgiven at this point for beginning to lose patience. She apparently misheard (or misunderstood) what Counsel said and thought she was saying that the previous adjournment had been for the purposes of appealing. She said something to Counsel to the effect that there was "no need to lie" and that the Tribunal would not be offended if they were told that their decision was potentially subject to appeal.

Counsel took offence at what she consider to be being accused of being a liar. The Employment Judge apologised for mishearing Counsel.

The Claimant's application for an adjournment was refused, the case continued and the Claims failed.

Mrs Balakumar appealed to the EAT alleging that the Employment Judge's comments gave rise to an appearance of bias and that this meant that the Judgment could not stand.

The legal test is whether a fair minded and informed observer would consider that the Tribunal was biased.  The EAT concluded that it would not.

Whilst no weight can be attached to the Tribunal's own view that it was not biased, since bias can be unconscious and insidious,they accepted that the Judge had genuinely misheard Counsel, in the context of a Hearing at which there had been previous comments about difficulties in hearing what Counsel was saying because she was quietly spoken and the acoustics in the room were poor. 

The Judge had expressed herself in regrettable terms, but if she genuinely thought she had been misled by Counsel it was understandable that she would feel bound to say something about this.

The case was very different to a case in the Family courts which had been referred to in argument where a Judge had been held to have given the appearance of bias where he had made sarcastic remarks about "flying carpets" and "Turkish delight" in a case involving parties from the Middle East.