Employment Appeal Tribunal- Grounds of appeal, Bias.

[dawnporter]

Hi All,

 

This is an employment tribunal question, not sure if it belongs in this section.

 

I am helping a friend with doing some research on how to draft and formulate grounds of appeal to EAT.

The case relates to a claim for discrimination and victimisation against his ex employer which he lost some months ago.

 

He was a litigant in person.

One of the grounds of appeal he wants to submit is that the Tribunal was bias against him from the onset due to the fact that (we found this out after that the trial) the Respondents lawyer, a Barrister, is also a part time ET Judge.

 

The ET judge who dismissed my friend's case is a consultant solicitor.

We have not yet uncovered any evidence showing their firms are linked.

 

 

In essence, my friend wants to argue that the Barrister for his ex employer and the ET Judge are colleagues and should have declared that conflict of interest before trial. The ET Judge we observed during trial was very friend with the other side's lawyer.

 

I told my friend this could be a weak grounds of appeal and could irritate EAT.

 

He claims not, and states this is a valid ground of appeal. He has other grounds to put forward.

 

Do you guys think his assertion that the ET Judge was bias due to the mentioned reasons above is s strong ground?..

 

I honestly think he very well may get laughed out of court.

 

thanks..

[honeybee13]

Hello Dawn.

 

You've posted in the media forums on CAG so I've moved you to the main employment forum. The guys should be along later.

 

HB

[sgtbush]

Most barristers know judges and solicitors outside of work,

just like you know someone at work and go for a pint sometimes.

Why should barristers be different???

What I'm saying is the same as you.

 

They cam be friends.

I would think it wouldn't get anywhere in court or tribunal

 

With their profession 99% are straight as a die and their integrity is beyond reproach.

 

You would have to uncover some massive underhanded practices to make it stick.

With reams and reams of evidence

[obiter dictum]

You canan only go to the EAT on points of law not applied in the original tribunal claim.

 

They will not take kindly to accusations of collusion if that is the merits of the appeal

Edited August 11, 2017 by obiter dictum

[sangie5952]

As already stated, this is not grounds for an appeal, and allegations of collusion will inevitably be badly received. It is not a valid grounds of appeal, your friend is wrong.

 

In any case - you say he lost the tribunal some months ago. He must then be out of time to appeal? You have 42 days to lodge an appeal, and he cannot argue any grounds for the (rare) extensions, because he is complaining about something he claims happened in front of him at the tribunal!

 

I know more than a few ET judges, and some of them are actually friends. I can assure you that I never get any free rides from them, albeit we would be friendly - it isn't a battle! They look at the law, and only the law.

[ericsbrother]

Appeals should be matters of law and you will need to show that the ET was wrong in law (not often good enough), misdirected itself or reached a perverse decision (very unlikely).

 

 

All judges were lawyers once, most lower tier judges still are and do this part-time.

If the 2 people were at the same firm one would be obliged to excuse themselves from any decision making.

 

My ex worked for the best known local criminal lawyers and my best friend was the senior officer in the met robbery squad.

It was common for all to meet socially but cases were never discussed, everyone knew the consequences.

People move in fairly small circles and it would soon be known if something improper had been said.

 

It is difficult not to take these matters personally especially when you are a LiP because you have invested a lot of yourself into the case and when you dont get the result you think that you have been made out to be wrong/not telling the truth or whatever the reality is that sometimes the law is not there to support you regardless of how unfair the original situation was.

 

 

With victimisation and discrimination the bar is set very high so the decision doesnt necessarily mean that the events didnt occur but that the threshold for action and compensation wasnt reached

[dawnporter]

Thanks..The ET trial was end of march and he says he just received the written reasons Mid July...So he is still within the 42 days window.

 

He seems to have other grounds, specifically that ET panel misdirected itself by pleading a points for the respondent that they did not even mention.

 

 

. I just felt the accusation of bias he wants to argue about the ET Judge and the Barrister being colleagues could very well irritate the EAT which can cause his appeal to be rejected at the first stage...That is what i was concerned about and looks like some of the experts on here agree.

 

You canan only go to the EAT on points of law not applied in the original tribunal claim.

 

They will not take kindly to accusations of collusion if that is the merits of the appeal

 

Bias and apparent bias are actual grounds of appeal that could be use

 

 

..In this case i was just wondering if it would be wise.

[Ethel Street]

I just felt the accusation of bias he wants to argue about the ET Judge and the Barrister being colleagues could very well irritate the EAT which can cause his appeal to be rejected at the first stage...That is what i was concerned about and looks like some of the experts on here agree.

 

I don't think that is the main reason why you have been advised not to bring that as a grounds for appeal. It's not my reason anyway. Nothing you have posted contains anything to suggest a relationship between the ET judge and the employer's barrister that was improper or a conflict of interest or should have been disclosed.

[sangie5952]

He seems to have other grounds, specifically that ET panel misdirected itself by pleading a points for the respondent that they did not even mention.. I just felt the accusation of bias he wants to argue about the ET Judge and the Barrister being colleagues could very well irritate the EAT which can cause his appeal to be rejected at the first stage...That is what i was concerned about and looks like some of the experts on here agree.

 

You / your friend appear to not understand how employment tribunals work. Which may be the actual cause of the loss. There are only two grounds upon which an EAT may rule. Bias is not one of them. They are that the law has been improperly applied, or that the decision is perverse.

 

And I think your "friend" has failed to appreciate that tribunals panels have the right to apply the law even if it appears that one party or another has failed to properly elucidate the facts. Unless the point of law they have applied is wrong, then this is also not grounds for appeal.

[dawnporter]

Hmm thanks.

 

 

.I like how you have not heard anything else about the whole matter but you somehow are jumping to the conclusions that we do not understand how ET works..

 

 

Information on EAT.gov set states the opposite of what you say.

..and there are case laws i can direct you to which shows you are actually incorrect.

 

 

see Singh v Glasgow University & Anor ...

..Bias and apparent bias are grounds for appeal.

.https://www.gov.uk/appeal-employment-appeal-tribunal/overview

 

I said already he is going to use other grounds,

i don't feel like putting everything on here so as not to get side tracked

..perhaps it will do you some good to update yourself on EAT grounds of appeal by reading up on some current case laws.

 

http://www.redmans.co.uk/blog/employment-law-posts/bias-in-the-employment-tribunal-a-quick-guide

[BazzaS]

Hmm thanks.

 

 

.I like how you have not heard anything else about the whole matter but you somehow are jumping to the conclusions that we do not understand how ET works..

 

 

.........

 

I said already he is going to use other grounds,

i don't feel like putting everything on here so as not to get side tracked

..perhaps it will do you some good to update yourself on EAT grounds of appeal by reading up on some current case laws.

 

http://www.redmans.co.uk/blog/employment-law-posts/bias-in-the-employment-tribunal-a-quick-guide

 

It is always good to see someone asking a question, arguing wth the respondents, but then themselves getting it wrong ......

 

Information on EAT.gov set states the opposite of what you say.

..and there are case laws i can direct you to which shows you are actually incorrect.

 

 

see Singh v Glasgow University & Anor ...

..Bias and apparent bias are grounds for appeal.

https://www.gov.uk/appeal-employment-appeal-tribunal/overview

 

As for "Bias and apparent bias are grounds for appeal" : true, but I suspect you actually mean "direct bias" and "indirect bias"!.

What is the difference between "bias" and "apparent bias"?

 

Singh does indeed show that bias is a grounds for appeal, but be careful of the cases you cite...... Singh not only shows that bias is a grounds for appeal, but it also shows that direct bias is a basis for a successful appeal, and that the bar for indirect bias is quite high : Singh failed to show the indirect bias they claimed, and they lost!.

 

So, by citing Singh, what you are showing is that your friend will have to show direct bias (where the bias is presumed), or make a strong case for indirect bias, which they haven't from what you've said up until now!

So, Singh doesn't really help you.

 

i don't feel like putting everything on here so as not to get side tracked

 

Yes, it is always useful to get half a story, so that:

a) you can get advice that may be correct for what you've told us, but wrong for the actual situation, and

b) so that when you get advice you dislike you can pull a fact from your reserve of information to show why the advice was "wrong" ........

 

Ohh, look: you've done b) already ....

I like how you have not heard anything else about the whole matter but you somehow are jumping to the conclusions

 

Self-help site :

i) help yourself by not providing half a story ...........

ii) Don't risk 'putting off' potential respondents by citicising them for you not giving the whole story!.

[sangie5952]

Thank you for pointing that out. I was actually not aware of that case - I don't claim to be a lawyer, and at EAT level we would have lawyers involved. But whilst we are correcting things, I very clearly pointed out that what I was saying was not solely on that matter, but on others which you did allude to.

 

Anyway, that said, you appear to not require any advice whatsoever, so I won't need to give you any. Except to point out again that claiming a judge is biased is very likely to ensure that you don't get a hearing. You / your friend had better be prepared to back that up with solid evidence, because it will not win you any points.

[dawnporter]

It is always good to see someone asking a question, arguing wth the respondents, but then themselves getting it wrong ......

 

 

 

As for "Bias and apparent bias are grounds for appeal" : true, but I suspect you actually mean "direct bias" and "indirect bias"!.

What is the difference between "bias" and "apparent bias"?

 

Singh does indeed show that bias is a grounds for appeal, but be careful of the cases you cite...... Singh not only shows that bias is a grounds for appeal, but it also shows that direct bias is a basis for a successful appeal, and that the bar for indirect bias is quite high : Singh failed to show the indirect bias they claimed, and they lost!.

 

So, by citing Singh, what you are showing is that your friend will have to show direct bias (where the bias is presumed), or make a strong case for indirect bias, which they haven't from what you've said up until now!

So, Singh doesn't really help you.

 

 

 

Yes, it is always useful to get half a story, so that:

a) you can get advice that may be correct for what you've told us, but wrong for the actual situation, and

b) so that when you get advice you dislike you can pull a fact from your reserve of information to show why the advice was "wrong" ........

 

Ohh, look: you've done b) already ....

 

 

Self-help site :

i) help yourself by not providing half a story ...........

ii) Don't risk 'putting off' potential respondents by citicising them for you not giving the whole story!.

 

LOL...How im I getting it wrong when it was being to told me that a claim apparent BIAS was not a valid ground of appeal however it states so clearly on the EAT.gov site?.

 

The language used in law is apparent bias...I think you are confusing the language used in indirect discrimination and direct discrimination with BIAS...here is some more info from the law society ..https://www.lawgazette.co.uk/law/automatic-disqualification-and-apparent-bias-/64222.article

 

But wether indirect or apparent.. doesn't matter..the key work here is BIAS.

 

I am not putting the entire case on here, what is the point?..I just wanted to see what people opinions are on using that avenue..I had a long debate with the person involved and anyone familiar with ET knows how Discrimination and victimisation claims are complex and i don't have the time to put the entire matter here and what happened at ET for everyone to dissect..

 

The reason i cited the case was to show that BIAS as a ground of appeal can be used and has been used in the past at EAT..not to say it was successful..

 

Thanks for your input.

[Ethel Street]

The legal admissibility of bias as a grounds of appeal still seems rather off the point. What bias? You haven't posted anything that suggests any bias. Your claim seems to be that the judge and the barrister had met before. and so were 'colleagues'. I'm sure they had met before! In any area of the courts the same barristers appear before the same judges every day of the week but that in itself doesn't create bias or a conflict of interest. If it did the entire court system would have ground to a halt long ago. You need to base a claim for bias on what the judge actually said or did (or failed to say or do). What is that?

[dawnporter]

Anyway, that said, you appear to not require any advice whatsoever, so I won't need to give you any. Except to point out again that claiming a judge is biased is very likely to ensure that you don't get a hearing. You / your friend had better be prepared to back that up with solid evidence, because it will not win you any points.

 

 

 

 

His claim of bias rests on the fact that the Barrister is a part time ET Judge and thus is colleagues with the female Judge who presided over the hearing...my position is that he could very well be right, however being that he is acting as a litigant in person that ground could irritate whoever looks at his paper work at the first stage. In my opinion all the Judges at ET are bias somewhat but exposing the way things are could hurt his case...

[dawnporter]

The legal admissibility of bias as a grounds of appeal still seems rather off the point. What bias? You haven't posted anything that suggests any bias. Your claim seems to be that the judge and the barrister had met before. and so were 'colleagues'. I'm sure they had met before! In any area of the courts the same barristers appear before the same judges every day of the week but that in itself doesn't create bias or a conflict of interest. If it did the entire court system would have ground to a halt long ago. You need to base a claim for bias on what the judge actually said or did (or failed to say or do). What is that?

 

 

The Barrister for the other side is a big shot who is also a part time ET Judge..His firm is in London, and thus he is colleagues with the ET Judge who presided over the case..The ET judge also ignore key evidence in the victimisation portion of the trial...she (the ET Judge) was literally pleading the case for the other side.

[Ethel Street]

The Barrister for the other side is a big shot who is also a part time ET Judge..His firm is in London, and thus he is colleagues with the ET Judge who presided over the case..The ET judge also ignore key evidence in the victimisation portion of the trial...she (the ET Judge) was literally pleading the case for the other side.

 

Ignoring evidence in their judgement could certainly be relevant to an appeal - depends what the evidence was and the context - but I can't see how it is 'bias'.

 

"she (the ET Judge) was literally pleading the case for the other side" seems extraordinary. When the time came for the Respondent to present their case the judge took over and did it for them? Hard to believe any judge would act with such procedural impropriety but you were there, I wasn't, so if that's what happened it would be grounds for appeal I'm sure.

 

As for the 'they are colleagues' argument I still can't see the evidence you base this on. It appears to be mere presumption on your part because both based in London and both have served as part time ET judges. I can't see that pointing anywhere as a grounds for appeal as 'bias' unless you have more evidence than that.

[sgtbush]

You say the judge ignored key evidence...

Obviously not as "key" as you thought.

 

Id say go for the appeal.

 

Egg and face spring to mind.. To be blunt!!

[BazzaS]

The language used in law is apparent bias...I think you are confusing the language used in indirect discrimination and direct discrimination with BIAS...here is some more info from the law society ..https://www.lawgazette.co.uk/law/automatic-disqualification-and-apparent-bias-/64222.article

 

The words used are "apparent bias", synonymous with 'Indirect interest".

Yet, you didn't answer "what is the difference between bias and apparent bias?" which I asked (presumably as you don't know, don't understand and merely parrot websites, in the same way you thought Singh supported you, when it doesn't!).

If you are going to state what "the language used in law" is, you want to then get it correct.

If you are citing, for example, Pinochet, a leading House of Lords authority:

https://publications.parliament.uk/pa/ld199899/ldjudgmt/jd990115/pino01.htm

It is "actual bias", from a direct interest, rather than merely "bias", and "apparent bias".

 

Moving to Porter, this is the leading authority for apparent bias / indirect interest.

http://www.bailii.org/uk/cases/UKHL/2001/67.html

 

But wether indirect or apparent.. doesn't matter..the key work here is BIAS.

 

No. As Singh highlighted, they key word isn't BIAS. They key is whether it is an ACTUAL bias / direct interest (such as would lead to an automatic disqualification) that is being claimed, where such as interest being shown leads to an automatic presumption of bias, or

an APPARENT bais / indirect interest being claimed, where it is much harder to obtain that presumption of bias.

 

Bias isn't the key, whether the alleged bias is actual or apparent (based on if a direct or an indirect interest is being claimed!) is the key. Singh makes this clear.

 

I am not putting the entire case on here, what is the point?..I just wanted to see what people opinions are on using that avenue..I had a long debate with the person involved and anyone familiar with ET knows how Discrimination and victimisation claims are complex and i don't have the time to put the entire matter here and what happened at ET for everyone to dissect..

 

The reason i cited the case was to show that BIAS as a ground of appeal can be used and has been used in the past at EAT..not to say it was successful..

 

Thanks for your input.

 

That's right, you want to highlight it can be used, but will be unsuccessful.

Pretty much anything can be used and be unsuccessful!(I could claim that an appeal should be heard because the moon is made of cheese!!)

all that differs is when it is unsuccessful : if it gets through the doors of the court / tribunal before it fails.

 

So, in a nutshell, the only part you want to focus on is the "bias' of the other side having a barrister, and your friend being self-represented, this somehow meaning that the judge was biased.

Using that argument is even less likely to work than Singh's did......... if the Upper Tier accepted it at face value, it'd mean that no self-represented litigant up against a legal professional could ever have a finding against them without the automatic right of appeal on basis of bias. Never going to happen.

[sangie5952]

I think that what the OP fails to appreciate is that the loser always thinks the decision is biased, perverse, or whatever.

could never possibly be for the reason that the judge actually knows the law!

 

As I have already pointed out, the judge is required to know the law as it applies to a case, so the fact that they demonstrated knowing the relevant law is hardly a surprise. That is not "pleading the case". But I think that the OP has made it clear that they don't want to hear.

 

According to them all ET judges are biased.

At that point, all reason flies out of the window.

 

If that is ones starting point, then absolutely everything is going to viewed through that prism, and there is no chance of reaching an objective opinion of one's case.

[BazzaS]

The Barrister for the other side is a big shot who is also a part time ET Judge..His firm is in London, and thus he is colleagues with the ET Judge who presided over the case

 

Are you saying they are friends? Work in the same chambers?

Were best mates at law school / during pupillage?.

 

What is the direct connection between them?.

 

If there isn't a direct connection are you trying to say "no legal professional should be able to represent a client if they are also a part time judge (Recorder / Deputy District Judge / part time ET judge), as it leads to apparent bias"?

 

Doomed to fail, as Singh did. Why? Not only because no "fair minded, reasonable" (& independent) "observer" would conclude that, but also because if that premise was accepted : there would be a lot fewer part time judges (lawyers being forced to choose between being an advocate and being a judge full time) and what impact do you think that would have on full time appointments? (How do you think they decide who should be appointed: do you think it is often influenced by their record as a part time judge [no. of decidions successfully appealed, and why!] for many candidates ....)

[BazzaS]

she (the ET Judge) was literally pleading the case for the other side.

 

Were you there?

Did you actually witness this, and were they actually

a) instead responding to a submission by the barrister, or

b) instead, actually applying the law (which is, in the end, their job!)

 

If they weren't applying the law or responding to a submission that would be a procedural irregularity : can you quote the relevant part of the transcript so we can see it (as this would be uncommon!)

[steampowered]

I do not understand why you think the fact that the other side's barrister is a part-time judge meant that the tribunal was biased.

 

It is very common for barristers to be part-time recorders and judges. The system is set-up to encourage that. If they are successful, they can move on to become a full-time judge.

 

When a barrister becomes a part-time judge, that does not mean they have to stop being a barrister. If that was the case then nobody would want to be a judge.

[SuperVillain]

The Barrister for the other side is a big shot who is also a part time ET Judge..His firm is in London, and thus he is colleagues with the ET Judge who presided over the case..

 

If that's how low the bar is being set for bias I dread the appeals being fired my way next time I dare set foot in Birmingham County Court...

 

Although I may escape by virtue of not being a 'big shot'...

[becky2585]

I instructed a barrister on one of my cases that knew the judges well, as my barrister was a part time judge.

 

It made no difference whatsoever. A working relationship of sorts is insufficient to show legal bias, and the EAT greatly dislikes any such allegation, particularly from a litigant in person. LIPs tend to argue bias any time that they lose, and almost never does it hold any merit. IME, it would be pointless to try to make such an argument and as a LIP it's seriously unlikely that they would be able to formulate a legal bias case for the EAT - lawyers would even struggle to do so.

 

Let it go. Unless there is anything else that you haven't mentioned, a bias appeal will fail.