BIAS

Ansar v Lloyd's TSB Bank plc

EAT: Burton J, Mr J Shrigley and Mr B Gibbs: 14 July 2006

The claimant brought a complaint of race discrimination against the respondent bank. The complaint was dismissed and the claimant appealed, alleging bias and misconduct against the tribunal chairman, in particular that the chairman had adopted a one-sided approach to the making of orders and directions and in the conduct of the hearing. Meanwhile, the claimant had brought a second complaint, also alleging discrimination against the bank, which had been stayed pending conclusion of the first complaint. A pre-hearing review of the second complaint was listed before the same chairman to consider applications by the bank to lift the stay and to strike out the claim on the ground that the issues raised should have been dealt with at the hearing of the first complaint. The claimant wrote to the regional chairman objecting to the same the chairman conducting the pre-hearing review because he felt that his second claim would be prejudiced. The regional chairman rejected the claimant's objection on the ground that, given the basis for the strike out application, it would be advantageous for it to be heard by the chairman who had determined the first claim. At the pre-hearing review, the chairman refused an application by the claimant to recuse himself and struck out the claim in part.

The claimant appealed.

The Employment Appeal Tribunal held:
(1) While it was important that justice was seen to be done, as a matter of policy courts should not yield too readily to applications for recusal as otherwise the position could soon be reached where litigants would be able to select judges to hear their cases simply by criticising judges they did not want to hear them. The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or a witness or found the evidence of a witness to be unreliable would not, without something more, found a sustainable objection. However, where there was real ground for doubt that doubt should be resolved in favour of recusal. Looking at the nature of the claimant's allegations, it was seen on analysis that they were without substance and, accordingly, the regional chairman was correct not to accede to the claimant's application to alter the chairman and the chairman was correct to conclude that he was not obliged to recuse himself.
(2) The decision to lift the stay on the claimant's second claim was within the proper discretion of the chairman, and the first claim having been concluded, subject to an appeal, there was no reason not to list the second claim, which had been brought on the basis that it dealt with issues not included in the first claim, the fact of an outstanding appeal being no justification for delay. There was no error of law, nor any indication of bias, in the chairman's decision as to which issues to strike out.

The appeal was dismissed.

Appearances: The claimant in person; Jonathan Gidney (Pinsent Masons) for the respondents