Swansea City & County Council v D Abraham & Ors [2025] EAT 93

[2025] EAT 93Case Nos: EA-2025-000070-AT,EA-2025-000135-AT
EMPLOYMENT APPEAL TRIBUNAL
Venue Rolls Building, Fetter Lane, London, EC4A 1NLDate 11 July 2025
Before
THE HON. LORD FAIRLEY, PRESIDENT
Between
SWANSEA CITY & COUNTY COUNCILAppellantMRS D ABRAHAM & OTHERSRespondent
Mr Dale Martin KC and Ms Lydia Banerjee (instructed by Geldards LLP) for AppellantMs Naomi Ling (instructed by Leigh Day) for RespondentHearing Hearing dates: 11 - 12 June 2025
JUDGMENTSUMMARYApparent bias; recusalThe appellant made an application for an employment judge to recuse herself from a case management hearing in an equal pay multiple. The basis for the application was that the judge had previously acted as a solicitor in union-backed multiple equal pay claims against local authorities over 10 years before. Some of the claimants in the new multiple had also been claimants in the earlier multiple, the union client was the same, the respondent was the same, and the relevant job titles / roles were the same or similar. In these circumstances, it was submitted that a fair-minded and informed observer would think that there was a real possibility of bias per Porter v Magill[2002] 2 AC 357.The judge having refused to recuse herself, the appellant submitted that she had erred in law by failing to apply Jones v. DAS Legal Expenses Insurance Co. Limited[2004] IRLR 218 and Hamilton v. GMB (Northern Region)[2007] IRLR 391, by relying upon principles derived from Locabail (UK) Limited v. Bayfield Properties Limited[2000] IRLR 96, and in failing properly to apply the precautionary principle. It was further submitted that (i) the judge’s reliance upon Locabail was procedurally unfair; and (ii) the recusal application should have been heard by a different judge. In these circumstances, the decision not to recuse was said to be wrong in law and / or perverse.Held:
[1]This is an appeal from an employment judge’s refusal to recuse herself from a case management hearing. The relevant decision was taken on 25 November 2024, and written reasons were provided on 6 January 2025. Having refused the recusal application, the same judge then also made case management orders on 25 November 2024 which are the subject of a separate appeal. That latter appeal, however, is entirely dependent upon the proposition that the judge ought to have recused herself.

Facts

[2]The appellant is a local authority. In July 2024, Mrs Abrahams and around 1000 other employees of the appellant (“the claimants”) presented complaints to the employment tribunal that the appellant had breached the equal pay and indirect discrimination provisions of the Equality Act, 2010. The equal pay complaints were advanced on the basis that the claimants’ work was said to be rated as equivalent to comparators in the appellant’s waste management department under a job evaluation scheme carried out in 2014. In the alternative, the claimants submitted that the job evaluation scheme was not a valid job evaluation scheme under section 80 or, in the further alternative, was tainted by sex discrimination and that their work was of equal value to their identified comparators. The claims were treated by the employment tribunal as a “multiple” for the purposes of case management.[3]On 9 August 2024, a legal officer of the employment tribunal wrote to the representatives of the parties to advise that the multiple would be overseen by Employment Judge Moore at case management hearings, and might also be allocated to her in due course for further preliminary hearings and final hearing(s). The letter of 9 August continued:
“Prior to her appointment as a salaried judge, Judge Moore was a solicitor in private practice at Thompsons Solicitors between 2007 - 2013. As part of that role, Judge Moore was responsible for supervising a team of lawyers working on the equal pay litigation against local authorities and NHS Trusts in Wales. The litigation was brought by multiple claimants who were members of the GMB and Unison trade unions. Judge Moore also represented claimants in claims brought against local authorities and also supervised other lawyers who had conduct of such claims. Due to the number of claimants within the multiples (in the tens of thousands) Judge Moore is unable to say whether she may have been instructed to act for any of the claimants now involved in this litigation and has no recollection or knowledge of any individual claimants. Should either party wish to raise any issues they are asked to do so sooner rather than later which will likely necessitate a preliminary hearing to be listed.”
[4]By letter dated 13 August 2024, the appellant’s solicitors applied for the judge to recuse herself on the basis that: a) She had significant previous involvement in mass equal pay claims brought against many local authorities in Wales, including the appellant; b) The previous litigation was extensive, lengthy and managed on an “all Wales” basis; c) She was the lead solicitor in relation to the earlier claims and, in that capacity, had brought and supervised equal pay claims against the appellant and interacted with the same solicitors who continued to represent the respondent; d) The earlier equal pay claims were advanced on “similar terms” to those in the 2024 multiple, and the legal issues in the earlier claims overlapped with those brought in 2024.[5]By e mail from the Employment Tribunal dated 7 November 2024, the parties were advised that Judge Moore would deal with the recusal application at a preliminary hearing on 25 November 2024. Within that same e mail, parties were directed to consider a range of factual and legal matters, and to produce a list of issues and draft directions for case management.[6]The appellant’s solicitors responded to the e mail of 7 November in a letter dated 11 November. Because the issue of recusal had not been resolved, they objected to what they took to be case management directions made by Judge Moore that were recorded in the e mail of 7 November. They also submitted that the preliminary hearing scheduled for 25 November 2024 should be presided over by a different judge.[7]By e mail from the Tribunal dated 21 November 2024, parties were advised that the recusal application would be dealt with by Judge Moore at the start of the preliminary hearing on 25 November and that arrangements had been made so that, should Judge Moore then decide to recuse herself, the rest of the hearing could immediately be taken over by another judge for the purpose of further case management.[8]At the hearing on 25 November 2024, senior counsel for the appellant adopted the reasons for recusal previously advanced in the letter of 13 August 2024 and supplemented those with the following further factors: a) The firm of solicitors which previously employed Judge Moore had acted for some of the claimants in the 2024 multiple; b) The earlier litigation had required substantial input from senior solicitors (as Judge Moore then was); c) In that capacity, she had attended meetings with lawyers for the appellant who continued to act in the 2024 multiple; d) Both sets of proceedings involved the issue of work of equal value; and e) Both sets of proceedings were backed by the GMB union.[9]At the hearing, Judge Moore advised parties that her recollection was that she had not been directly involved in the earlier litigation against the appellant other than in a supervisory capacity and had not, therefore, directly represented any of the claimants in those earlier proceedings. It was the case, however, that Thompsons had acted for claimants in the earlier proceedings who were also claimants in the 2024 multiple. The Judge’s decision and reasons[10]Having referred to Porter v. Magill [2002] 2 AC 357, Locabail (UK) Limited v. Bayfield Properties Limited [2000] IRLR 96 at paragraphs 19, 23 and 25, Jones v. DAS Legal Expenses Insurance Co. Limited [2004] IRLR 218 and Hamilton v. GMB (Northern Region) [2007] IRLR 391, Judge Moore refused to recuse herself. The core elements of her reasoning were set out in the written reasons of 6 January 2025 at ET § 15, 16, and 20:15. I did not accept that there is sufficient ground to say that these claims have a similar subject matter based on the fact that they are equal value claims alone. Equal value claims are one of three statutory concepts for establishing equal pay. It cannot be said that having knowledge of a legal concept is the same as having knowledge of fact specific subject matter. The litigation I was involved with concerned bonus payments. In these proceedings the claimants complain of task and finish and overtime arrangements of comparators.16. I consider that the application has demonstrated some emotive language in asserting that I had “acted against” the Respondents and the Respondents’ solicitors. Judges are drawn from legal professional backgrounds, they are predominantly, not in all cases, former professional representatives, including solicitors and barristers. I was a solicitor in a private practice representing clients under instructions from those clients. In my judgment a fair minded and informed observer would not conclude the fact that a professional representative who was now a judge and had acted for claimants in equal pay claims some 10 years previously could give rise to the appearance of a real possibility of bias. I do not accept there are special circumstances in the particular facts of this case that take the association over the line in some way. I was not a claimant nor is it reasonable to think that such an observer would assume I would be biased to claimants on the basis I had acted for them in a professional capacity…. 20. I acknowledge in the case of doubt that it should be resolved in the favour of recusal. In my judgment there is no doubt in respect of this particular situation. I do not consider that a fair minded observer would consider that I had a particular propensity to either side in the litigation by being a professional representative acting for individuals during that time. I was not even a partner of the law firm in question. The greater the passage of time between the event relied upon showing a danger of bias and in cases in which the objections is raised the weaker the objection will be. I last represented equal pay claimants in 2013, 11 years ago.[11]At ET § 22 and 23 she also stated: 22. If I am wrong about this the practical consequences of acceding to the recusal request are potentially significant. I consider them to be relevant as to what a fair minded (sic) would conclude, as cited in Locabail at paragraph 23 (citing Re Ebner):
“Why is it to be assumed that the confidence of fair-minded people in the administration of justice would be shaken by the existence of a direct pecuniary interest of no tangible value, but not by the waste of resources and the delays brought about by the setting aside of a judgment on the ground that the judge is disqualified for having such an interest?”… 23. Whilst each case must be decided on the facts, there were hundreds of thousands of equal pay claims brought in the United Kingdom during this period involving hundreds of solicitors and barristers on both sides. Some of those professional representatives are now judges including three within this region. If the application was granted, a significant number of sitting salaried judges and fee paid judges whom have actual practical and legal knowledge of equal pay might face duplicate recusal applications. This would potentially have a serious impact on the administration of justice for multiple equal pay claims. In my judgment the confidence of fair minded people would be shaken by the knowledge that because some judges had represented claimants or respondents in multiple equal pay litigation should so disqualified (sic).”

The grounds of appeal

[12]The appellant advances three grounds of appeal. Ground 1 is subdivided into three separate sub-grounds. The first of these is that the judge failed to apply the correct legal principles to the recusal application. The second is that it was unfair and contrary to natural justice for the judge to have relied upon an authority (Locabail) that was not referred to or raised with parties during submissions. The third is that the judge failed to consider whether the recusal application itself should be heard before a different judge.[13]Ground 2 suggests that the decision not to recuse was, in the circumstances, perverse. This ground is closely related to the first sub-head of ground 1 and depends upon essentially the same analysis of the relevant facts.[14]Ground 3 is a reasons challenge which relates only to the judge’s decision, after declining to recuse herself, to reject the appellant’s submissions that she should make no further case management orders pending an appeal or, alternatively, allow time for an appeal to be presented before any case management orders fell due for compliance.

Appellant’s submissions

[15]In developing these grounds, senior counsel for the appellant submitted that the 2024 multiple was a “classic equal pay litigation” in which the issue of the equality of value of a wide range of roles arose. Those roles were either the same as or similar to roles which had featured in the earlier multiple in which Judge Moore had been involved as a solicitor. It is in the nature of union-backed equal pay multiples that individual claimants tend not to take an active role in the litigation. Rather, the point of contact tends to be the union. The solicitor work is undertaken through a “pyramid structure” with the senior members of the legal team having direct contact with the union and more junior solicitors taking responsibility for particular respondents or claimants. Below that, others in the team would also perform work of a more administrative nature.[16]It is common for equal pay litigations to run for many years because of their size and complexity. The multiples involving the Welsh local authorities have been managed by solicitors acting for the unions on an “all Wales” basis. The earlier multiple had been backed by the GMB, Unison and Unite. The solicitors who acted for the appellant acted for 14 of the 22 local authorities in Wales.[17]There was an absence of clarity within the judge’s reasons about precisely what work she had carried out in the earlier multiple. Any issue of there being individual claimants in common was, however, less important than the potential overlap with the union officials either as witnesses, instructing clients or both. Even if the judge had not attended meetings with individual equal pay claimants, it was clear that, as a senior member of the legal team, she had “steered the direction of travel of the litigation generally” with the union as, in effect, the client of the firm of solicitors which employed her. The fact that she had not been a partner was irrelevant.[18]Whilst the judge had referred in her reasons to Porter, she had also relied upon dicta from Locabail, and had failed to quote from the guidance in either of the subsequent cases of Jones v DAS or Hamilton v GMB. This was said to be an important omission in circumstances where those were the only authorities that the appellant had cited to her and relied upon.[19]Two particular reasons for this submission were advanced. First, it was submitted that the law has moved on since Locabail. The relevant test is now recognised as a “real possibility” of bias rather than a “real danger”. The previous limitations of the apparent bias principle had “fallen away”, and there had been a rise of the “precautionary principle” referred to in Locabail and by the Court of Appeal in both AWG Group Ltd v Morrison [2006] 1 WLR 1163 and Jones. This principle suggests that, when considering a recusal application, it will often be better for a judge to err on the side of caution and to be safe rather than sorry. There is a much greater role for the precautionary principle in the pre-trial period. There is now, therefore, a greater element of pragmatism, and a recognition of the need to recognise an issue that may turn into a “festering sore” at a later stage of the litigation (The Financial Conduct Authority v. Avacade Limited and others [2020] EWHC 3941 (Ch), para. 22). This, it was submitted, had resulted in a lowering of the bar in relation to the circumstances in which recusal is mandatory. The precautionary principle is now a factor to be taken into account in deciding whether or not the Porter test is met.[20]Secondly, it was submitted that Jones and Hamilton each demonstrate that, where an application to recuse on the basis of apparent bias arises, there is a positive duty on the judge to identify all of the relevant facts. That involves the judge engaging fully with those facts. Had she done so, Judge Moore would have noted that the same (or at least similar) roles were involved in the earlier litigation. She could then have asked to be provided with the pleadings in the earlier litigation to check this. Instead, however, she had focussed unduly on whether she could recall any individual claimant. She had diminished her own role in the earlier litigation by referring to her supervisory role and the fact that she was not a partner in Thompsons. She had failed to note the significance of the union’s involvement in the earlier litigation and to recognise the level of her contact with the union as, in effect, the client. The JES which featured in the 2024 multiple was introduced only a year after the judge had ceased to be employed by Thompsons, and it was possible that her union clients may have been involved in the negotiations which led to its introduction in 2014.[21]In relation to the other elements of ground 1, senior counsel submitted that the principles from paras. 21, 23 and 25 of Locabail on which the judge relied were not canvassed by her with parties in argument. That was a failure of natural justice. She had also failed to heed what was said in Jones (para. 35(i)) about considering whether the recusal application itself should be dealt with by another judge.[22]In relation to ground 2, senior counsel’s primary position was that it was not necessary to show perversity when challenging a refusal to recuse on the basis of apparent bias. If that primary position was wrong, however, the decision of the judge was, in any event, perverse, for the reasons already advanced under ground 1.[23]On ground 3, senior counsel noted that Judge Moore had now given reasons for the steps taken after her refusal to recuse. Specifically, she had done so in response to a Burns / Barke Order, requested by the respondents, dated 10 March 2025. Senior counsel also advised that the case management orders made by the judge had all now been complied with.

Respondent submissions

[24]Counsel for the respondents submitted that the key point in the appeal was whether any factor had been identified which took the case outside Locabail at paragraph 25. Generally, the law recognises that prior professional involvement as a legal representative of one of the parties will not lead the fair-minded and informed observer to the view that there is a real possibility of bias. That is particularly the case where the prior professional involvement ceased some time before. Locabail (para 20) had recognised that the position of a partner in a firm could be different to that of an employed assistant or associate, especially where the position of partner was held at the same time as the relevant part-time judicial role (see also Avacade at para 13). Former partner status is less important, however, once the judge has moved to a full-time judicial role (cf Peninsula Business Services Limited and another v. Rees and others UKEAT/0333/08/RN).[25]It was not accepted that there had been a lowering of the bar for establishing apparent bias since Locabail. Whilst it might be possible to identify individual cases where a judge had taken a pragmatic or cautious decision to recuse, that was not the same thing as accepting that apparent bias was made out. A judge who correctly concluded that the Porter test was not made out remained under a duty not to recuse.[26]It was also not accepted that, as a matter of law, the judge was required to look beyond the matters relied upon by the appellant in its recusal application or make independent investigations which went significantly beyond the submissions of the parties. It was incumbent upon the appellant to identify with clarity and precision the circumstances said to give rise to a real possibility of bias. General assertions were not sufficient. The approach taken by the appellant in this case had, however, focussed entirely upon the generality of the judge’s involvement in equal pay litigation, and the possible overlap of parties and job titles without ever identifying any matter arising from those matters that gave rise to any real possibility of bias.[27]Some of the factors relied upon in the appellant’s submissions (such as the possibility of a particularly close prior working relationship between the judge and a union witness), though presently speculative, might become relevant as the case moved towards an evidential hearing. They had no obvious relevance, however, to a case management hearing. There was no basis whatsoever to think that the judge had been involved in the 2014 Job Evaluation Scheme, and the fact that she had little memory of the proceedings which she supervised more than a decade ago was a relevant factor (Locabail, para 18) which would be significant to the fair-minded observer.[28]The comments made by the judge at ET § 22 and 23 about practicalities were not the basis for her decision. They were simply a recognition of what the consequence would be if the appellant’s very generally expressed submissions were correct. The conclusion correctly reached at ET § 15 and 16, however, was that the appellant had not established a real possibility of bias to the Porter standard.[29]There was also no merit in the suggestion that the judge’s reference to and reliance upon Locabail had given rise to material injustice. Locabail had been extensively referred to in the other authorities to which the judge had been referred, and she had plainly used the correct Porter test and had cited both Jones and Hamilton.[30]It is generally the duty of the judge in respect of whom a recusal application is made to hear and dispose of the application rather than passing that responsibility to another judge (British Car Auctions v. Adams UKEAT/0159/12/SM at para 28; Locabail at para 21). That is because the judge who is invited to recuse is usually best placed to deal with the application (British Car Auctionsibid).[31]In these circumstances, the judge’s decision on 25 November 2024 was neither erroneous in law (ground 1) nor perverse (ground 2).[32]Ground 3 has no residual purpose where reasons have been given and the case management orders have been complied with. Relevant principles of law The test for apparent bias

Relevant principles of law

[33]The test for apparent bias is whether the fair-minded and informed observer, having considered the facts, would conclude that there is a real possibility that the tribunal was biased (Porter v Magill, para 103, per Lord Hope of Craighead). Underlying that test is the fundamental consideration that justice should not only be done but should manifestly and undoubtedly be seen to be done (R v Sussex Justices, Ex p McCarthy [1924] 1 KB 256, 259). The fair-minded and informed observer is neither unduly sensitive / suspicious, nor complacent (Helow v Secretary of State for the Home Department [2008] 1 WLR 2416, para 2, per Lord Hope).[34]The issue of apparent bias is highly fact-sensitive. Where an allegation of apparent bias is made, an intense focus is necessary upon the essential facts of the case: Man O’War Station Ltd v Auckland City Council (No.1) [2002] UKPC 28 at [11] (per Lord Steyn). The test is of “a real possibility” of bias, whether subconscious or otherwise. Whilst that test is less rigorous than one of probability, it is still a test which is founded upon reality rather than general assertion or mere speculation. The test is not, therefore, of “any possibility” but of a “real possibility” of bias.[35]If a “real possibility” of bias is made out, considerations of inconvenience, cost and delay are not relevant grounds on which to refuse an application for recusal (AWG Group Ltd, para. 6).

The precautionary principle

[36]Whilst the Porter test remains the same at all stages of the proceedings, there is a practical difference between an objection made during a trial and a situation where the objection is taken before the trial has begun. As was noted in AWG Group Ltd, in the latter situation there is greater scope for an application of the “precautionary principle”. In particular, if a court has to try to predict what might happen as the case progresses, prudence may naturally cause the judge to lean towards being safe rather than sorry.[37]In Resolution Chemicals Limited v. H Lundbeck A/S [2014] 1 WLR 1943 the Court of Appeal explained the rationale for the precautionary principle in these terms:39. The precautionary principle is a sensible one in view of the obvious practical complications if there is an appeal from a refusal to recuse or if there is a challenge made on the basis of apparent or actual bias at the end of the case. The overriding objective that justice should be seen to be done and of the need to maintain the confidence of society in general, and of the parties in particular, in the administration of justice also promote a disposition of a judge to accede to a recusal application when it is made by a party’s legal advisors.40. It is important, none the less, to distinguish between a pragmatic precautionary approach and the application of the test itself. If a fair-minded and informed observer, having considered the facts, would not conclude that there is a real possibility that the tribunal will be biased, then the objection to the judge must fail even if that leaves the applicant dissatisfied and bearing a sense that justice will not or may not be done. The increasing pressure on limited judicial resources…may mean that the easy option of voluntary recusal, irrespective of the strict application of the legal test, may from time to time have limited scope.”

Relevant factors

[38]As was noted in Locabail, it is impossible exhaustively to define all factors which may give rise to apparent bias. Much will depend upon a careful examination of the whole facts viewed in the context of the particular decision before the judge. Every application must, therefore, be decided on the facts and circumstances of the individual case and in the particular context in which the application has been made.[39]Personal characteristics such as religion, national or ethnic origin, gender, age, class, means or sexual orientation are highly unlikely ever to be relevant. In the ordinary course of things, previous receipt of instructions to act for or against any party, solicitor or advocate engaged in a case before the judge will not usually result in the Porter test being met. By contrast, a real possibility of bias might well be thought to arise if the facts disclosed either friendship or animosity between the judge and someone involved in the case, particularly if the credibility of that person could be significant to the particular judicial decision being taken. Apparent bias might also potentially arise if a judge had previously rejected the evidence of a witness in such outspoken terms as to throw doubt on his ability to approach such person's evidence with an open mind in a later case. The mere fact, however, that a judge had previously commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not, without more, amount to a basis for recusal. The greater the passage of time between the event relied on as showing a danger of bias and the case in which the objection is raised, the weaker (all other things being equal) the objection will be (Locabail, paragraph 25).[40]An appellate court is well able to assume the vantage point of a fair-minded and informed observer with knowledge of the relevant circumstances, and the appellate court must itself make an assessment of all relevant circumstances and then decide whether there is a real possibility of bias (Hamilton at para 29(3)).[41]It is conventional and appropriate for applications for recusal on the basis of apparent bias to be heard by the judge who is being asked to recuse themself (British Car Auctions at para 28; Locabail at para 21; Resolution Chemicals at para. 41). Analysis and decision Ground 1, sub-head (i)

Analysis and decision

[42]The appellant’s criticism of the judge for not quoting or summarising the guidance contained in Hamilton or Jones in her reasons is unfair and does not amount to the identification of a material error of law. The judge was plainly aware of both Hamilton and Jones and cited both at ET § 14. Importantly, she also referred to and correctly quoted the test for apparent bias as set out in Porter.[43]I do not accept the submission that either Hamilton or Jones diminishes the weight of Locabail as an authority on apparent bias, either generally or specifically in relation to the passages of Locabail relied upon by the employment judge in this case. As is clear from Lord Hope’s speech in Porter at paragraph 103, the court’s preference for a test of “real possibility” over “real danger” was not regarded as a change of substance. In both Locabail and Porter the two formulations were regarded as synonymous.[44]I also reject the appellant’s submission that the precautionary principle is an integral part of the Porter test. As was noted in Resolution Chemicals, it is important to distinguish between the pragmatism of the precautionary approach on the one hand and the strict application of the Porter test itself on the other. There may, therefore, be situations where it is clear that the Porter test is met. In those cases, recusal is mandatory. There may also be cases where the Porter test is clearly not met, in which case the judge’s duty is to continue to hear the case (see Locabail, para. 24). Apart from those positions of clarity, however, there may also be situations where it is not clear whether or not the Porter test may be met in relation to the particular judicial decision under consideration at the time of the recusal application. Alternatively, there may be substantial grounds for concern that a basis for apparent bias could first surface at a later stage in the case and cause delay, disruption and expense. Those are scenarios where the precautionary principle may be relevant as a guiding principle, but not as an aspect of the Porter test.[45]In summary, therefore, the precautionary principle recognises that a judge who is faced with an allegation of apparent bias in the period pre-trial might well apply a cautious approach and voluntarily recuse on the basis that it is better to be safe than sorry. Where, however, a judge has refused to recuse and that decision is then challenged on appeal, the appellate court requires only to consider whether the decision taken was wrong in law. The test which the appellate court must apply is still the test described in Porter.[46]The appellant’s submission that the judge did not ascertain all of the relevant circumstances is difficult to understand. It is clear from ET § 10 to 13 that the judge noted all of the factual matters relied upon by the appellant in correspondence prior to the hearing on 25 November 2024 and in oral submissions at that hearing itself. She considered and dealt with each aspect of those facts in her reasons at ET § 15 ff . No further factual matters were identified either before her or in this appeal to which she is said not to have had regard.[47]The need for close examination of the relevant facts and circumstances is, of course, why there is a requirement that a judge who is faced with an allegation of apparent bias should set out as fully and candidly as possible their own knowledge of those facts and circumstances (per Hamilton and Jones). The onus of establishing a duty to recuse nevertheless still rests upon the applicant (President of the Republic of South Africa v. South African Rugby Football Union1999 (4) S.A. 147, quoted with approval in Locabail).[48]Once a party who seeks recusal has identified the particular basis on which apparent bias is said to arise, the judge must carry out a close examination of the factors relied upon. Nothing in this case suggests that the judge did not do so. I do not accept the appellant’s submission that the judge was under a more extensive duty to carry out her own inquiries into the details of a litigation that took place more than a decade before to hunt for information that she did not remember. That was particularly so where the suggested areas of possible factual overlap between the two sets of proceedings were speculative and identified by the appellant only in the most general of terms. The appellant’s oft-repeated assertions that there were overlaps of claimants and respondents, that the legal representatives were the same and that some of the roles in the two sets of cases were either the same or similar do not explain why those factors, alone or in combination, might be said to give rise to a real possibility of apparent bias.[49]The judge concluded, in the particular context in which the recusal application was made, that the Porter test was clearly not met. That context was a first case management hearing at which consideration was to be given to the steps which each side of an equal pay multiple needed to take to move the cases forward towards trial. The fair-minded and informed observer would have recognised that any agent / client relationship between the judge and a union client represented by her former employer firm had ended more than a decade previously. They would have recognised the nature and incidents of the lawyer / client relationship and, separately, the significance of the judicial oath. In short, they would have seen no real possibility of bias arising from the mere fact of a prior professional relationship between a lawyer and a client which had ended more than a decade before.[50]The fair-minded and informed observer would also then have considered whether there was any real possibility that the case management decisions that the judge was about to take might be influenced by knowledge gained by her in her previous role within Thompsons. They would have recognised that mere knowledge of the law and the practice of equal pay litigation does not, of itself, give rise to any real possibility of bias. They would have noted that the judge’s recollection of any facts about the previous litigation in which she had been involved was understandably diminished by the passage of time and that, in any event, case management is a very different exercise to that of hearing evidence, making findings of fact and issuing a judgment. Critically, they would also have noted that the party applying for recusal had not identified any specific area of actual or potential factual overlap of which residual knowledge would (or even might) consciously or unconsciously influence case management decisions.[51]In these circumstances, the judge was correct to conclude that, in the particular context in which she was due to exercise her judicial role on 25 November 2024, the Porter test was clearly not met. Nothing in the precautionary principle alters the correctness of that decision.[52]For the avoidance of doubt, the same conclusion does not necessarily apply to the whole future involvement of Judge Moore in the 2024 multiple. There will inevitably be a need for ongoing vigilance as the multiple moves forward towards a merits hearing. It is possible that facts may emerge which necessitate the Porter test being revisited. Either the judge or the parties may identify more specific areas of factual overlap than the very general assertions on which this appeal has been based. If that happens, it may lead to a conclusion that the judge should then recuse herself at that point. The only question before me under this part of ground 1, however, is whether it was an error of law for the judge not to recuse herself on 25 November 2024. For the reasons I have given, I have concluded that it was not.

Ground 1, sub-head (ii)

[53]There is also no merit whatsoever in the submission that the judge’s reliance upon passages from Locabail was unfair and / or a breach of the principle of natural justice. Locabail is a very familiar authority. It is routinely referred to in cases to do with apparent bias. The transcript of the recusal hearing before Judge Moore provided to me in this appeal shows that Locabail was, in fact, mentioned by senior counsel for the appellant, albeit indirectly and in the context of quotation of a passage from Hamilton.[54]Ultimately, therefore, I understood senior counsel’s position on this issue to be that if he had been given notice that the judge would rely upon certain passages of Locabail, he would have been able to make submissions that those passages no longer represented the current state of the law. The appellant has now, of course, had the chance to make those very submissions in this appeal. For the reasons already given, I have concluded that they are not correct. There is, therefore, nothing in this part of ground 1 that would justify setting aside the decision of the employment judge on the recusal application.

Ground 1, sub-head (iii)

[55]The final submission within this first ground of appeal was that it was an error of law for the judge not to have passed the recusal application itself to a different judge. This submission seemed ultimately to be based upon part of the guidance at paragraph 35(i) of Jones. As was noted in British Car Auctions, Locabail, and Resolution Chemicals, however, it is conventional and entirely proper for applications for recusal on the basis of apparent bias to be heard by the judge who is being asked to recuse. Nothing in Jones suggests that it will be an error of law for a judge to do so.[56]Within this aspect of ground 1, I also understood senior counsel to submit that the way in which the recusal application was dealt with by the judge was, of itself, a reason for this Tribunal to conclude that she ought to have recused herself. In the particular circumstances of this case, I saw no merit at all in that submission. Quite properly, the judge raised with parties the issue of her prior involvement as a solicitor in the earlier equal pay multiple. The purpose of that was to allow parties to make submissions about any particular or specific matters that resulted in the Porter test being met. As I have already noted, the appellant’s reliance upon the judge’s former role as a legal representative in combination with a repeated but general assertion that some of the roles in the two sets of cases were either the same or similar does not explain why that might cause the fair-minded and informed observer to consider that there was a real possibility of apparent bias.

Ground 2

[57]As the appellant correctly noted, it is not necessary to establish perversity when challenging a refusal to recuse on the basis of apparent bias. The question in this appeal is simply whether, on 25 November 2024, the judge erred in law in concluding that the Porter v. Magill test was not met.[58]Having regard both to the basis on which the recusal was sought, and to the submissions made in this appeal, I can see no error of law in the judge’s approach. On the contrary, she was plainly correct to conclude that a basis for mandatory recusal had not been made out at the case management hearing on 25 November 2024.

Ground 3

[59]On 26 February 2025, the respondents applied for a Burns / Barke Order in relation to this ground. On 10 March 2025, such an order was made. It asked the judge to set out her reasons for refusing the appellant’s applications that(a) she make no case management orders pending an appeal against her refusal of the recusal application or, alternatively,(b) that time be allowed to lodge an appeal before the date(s) for compliance with any of the orders.[60]By letter dated 26 March 2025, the judge gave reasons. In relation to (a), she explained that it would not have been in accordance with the over-riding objective to have stayed over 1000 claims pending a possible appeal on the recusal issue in circumstances where the orders ultimately made were largely in terms of a draft prepared by the appellant. In relation to (b), she noted that the earliest date for compliance with any of the case management orders made was 1 March 2025 which gave ample time for any appeal to be made.[61]This ground of appeal was only ever advanced on the basis that inadequate reasons had been given. On that limited basis, I was not persuaded that there was ever any merit in this ground. The reasons for refusing those applications should have been obvious to an informed participant in the proceedings. In any event, full written reasons have now been given which are comprehensible and Meek–compliant. I was also told that the case management orders made by Judge Moore have been fully complied with. Nothing in this ground amounts to a basis for setting aside the orders made.

Conclusion

[62]For these reasons, both appeals are refused.

Cited in 3 later judgments