EAT//0033/08/RN EAT/0334/08/RN EAT/0335/08/RN 1) PENINSULA BUSINESS SERVICES LTD 2) MS J ENGLISH v 1) MR I G REES 2) MR J MCLACHLAN 3) MR F JAFFIER [2009] UKEAT 0333_08_2307

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2009] UKEAT 0333_08_2307Case No Appeal No. UKEAT/0333/08/RN UKEAT/0334/08/RN UKEAT/0335/08/RN UKEAT/0340/08Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
EAT//0033/08/RN EAT/0334/08/RN EAT/0335/08/RN 1) PENINSULA BUSINESS SERVICES LTD 2) MS J ENGLISHAPPELLANT1) MR I G REES 2) MR J MCLACHLAN 3) MR F JAFFIERRESPONDENTSEAT//0340/08RN PENINSULA BUSINESS SERVICES LTDAPPELLANTMS S MALIKRESPONDENT
Before
Mrs Justice Slade Mr P GammonDate 23 July 2009
[1]APPEARANCES For the Appellant (Peninsular Business Services) MR JOHN SAMSON (of Counsel) Instructed by: Messrs Steeles (Law) LLP Solicitors 3 The Norwich Business Park Whiting Road Norwich Norfolk NR4 6DJ EAT/0333/08/RN EAT/0334/08/RN EAT/0335/08/RN For the Respondents Mr I G Rees, MR J Mclachlan, Mr F Jaffier MR IAN REES (Representative) EAT/0340/08RN For the Respondent Ms S Malik MS NAOMI LING (of Counsel) Instructed by: Messrs Shoosmiths Solicitors Quantum House Basing View Basingstoke Hampshire RG21 4EX SUMMARY PRACTICE AND PROCEDURE: Bias, misconduct and procedural irregularity The Appellants are a large organisation offering employment advice and representation before Employment Tribunals and the Employment Appeal Tribunal. The same Employment Judge heard the cases of Mr Rees and others and Miss Malik against Peninsula. Shortly before the resumed hearing of the case of Mr Rees and others, the five partner firm of solicitors in which the then part-time Employment Judge was an employment law specialist, advertised their employment law expertise and denigrated non-solicitor employment law consultants. Although not named, the Appellants are well-known and perhaps the largest such consultants. A fair-minded and informed observer could not have excluded the possibility of bias against Peninsula by the Employment Judge. ( Porter v McGill [2002] 2 AC 357 and Locabail v Bayfield Properties Limited [2000] IRLR 96 applied). The judgment in the case of Mr Rees and others is set aside on grounds of apparent bias. The case is remitted for rehearing before a different Employment Tribunal. In the case of Miss Malik, after recusal of a lay member, the Appellant's representative consented to the case continuing with the Employment Judge and the remaining lay member. Although consent was reluctantly given it constituted proper waiver of the apparent bias ( Locabail and Jones v Das Legal Expenses Insurance Co Ltd [2004] IRLR 218 ). The presence of the Employment Judge on the Tribunal in that case did not give rise to the appearance of bias on the grounds it did in Mr Rees' case. The distance in time between the advertisement and the hearing of Miss Malik's case and the fact that the by now full-time Employment Judge was no longer a partner in the solicitors' firm removed any real risk of appearance of bias by the presence of the Employment Judge on the Tribunal in that case ( Locabail , para 89). The bias ground of appeal in the case of Miss Malik is dismissed. The appeal will be relisted for determination of other grounds of appeal in that case. THE HONOURABLE MRS JUSTICE SLADE This is the hearing of a discrete ground of appeal raised by Peninsula Business Services Limited ('Peninsula') and Mrs English, one of their employees, in their appeals from judgments of Employment Tribunals ('ET') in two sets of proceedings. The ground of appeal now to be determined by Order of Elias P (as he then was) is whether the judgments appealed from should be set aside on grounds of bias. Mr Samson who appeared for Peninsula made it clear that actual bias was not being alleged but appearance of bias. Save where otherwise indicated all references in this judgment to bias are to the appearance of bias. All other grounds of appeal are stayed pending the outcome of the appeal on this ground.[2]We will refer to both Appellants in the Rees case as Peninsula except where otherwise indicated. Mrs English was not a party in the Malik case. The claims of three Claimants, Mr Rees, Mr McLachlan and Mr Jaffier, were joined and heard together. These proceedings will be referred to as the Rees proceedings. All the Rees claimants are former employees of Peninsula and brought claims arising from their dismissal. Proceedings in which Miss Malik was the Claimant will be referred to as the Malik proceedings. Miss Malik was offered a job by Peninsula but did not take it up in circumstances upon which she relied in bringing her claims. Mr Samson represented Peninsula, Mr Rees the Claimants in the Rees proceedings and Miss Ling represented Miss Malik.[3]Three judgments in the Rees case are challenged on the grounds of bias. By the substantive judgment of 20 December 2007 ('RSJ') the Employment Tribunal ('ET') held that the Claimants were automatically unfairly dismissed contrary to Section 98A of the Employment Rights Act 1996 ('ERA') and unfairly dismissed contrary to Section 98(2) and (4). The ET further held that Mr McLachlan was unfairly dismissed contrary to Section 100(1)(c) ERA. Mr Rees' claim of sex discrimination contrary to the Sex Discrimination Act 1975 ('SDA') against Peninsula, the company, succeeded in part. His claim of sex discrimination against Mrs English failed. Mr Jaffier's claims of race discrimination contrary to the Race Discrimination Act 1976 ('RDA') against Peninsula, the company, and Mrs English succeeded in part. By a judgment following a review hearing on 9 January 2008 ('RRevJ'), the Employment Judge (EJ) ordered that there be a hearing of a review of the finding of race discrimination against Mrs English. The EJ refused an application by both Respondents for an adjournment of the remedy hearing. By the recusal judgment of 9 April 2008 ('RRecJ') the Tribunal refused an application by Peninsula that the EJ and/or the ET recuse himself/themselves from any further involvement in the Rees case. By judgment of the ET on 15 September 2008 the review and the remedy hearings have been stayed pending determination of this appeal.[4]The judgment in the Malik case of 17 January 2008 ('MJ') is also challenged on the grounds of bias. The EJ who heard the Rees case also presided over the Malik case with different lay members. The ET held that Peninsula had discriminated against Miss Malik pursuant to Section 3A(1) directly and under Section 3A(2) of the Disability Discrimination Act 1995 ('DDA') by failing to make reasonable adjustments. Peninsula was ordered to pay Miss Malik compensation of £21,659.86.[5]Peninsula contended that the EJ's membership of the Tribunals hearing both cases gave rise to an appearance of bias. In addition it was contended that the presence on the Tribunal hearing the Malik case until he recused himself on the third and final day of a member who had applied for a job with Peninsula gave rise to further appearance of bias. The Malik case continued with the EJ and one member with the consent of the representative of Peninsula. Peninsula contended that such consent should not be regarded as effective because of the circumstances in which it was given. Summary facts relating to the allegation of apparent bias[6]The ET recorded in paragraph 3 of the RSJ that Peninsula provide employment law and health and safety consultancy support to clients. Their services include representation at Employment Tribunal hearings. Peninsula is the largest firm of its type in the United Kingdom. The ET noted that Peninsula has over 18,000 clients who are retained on three or five year fixed term contracts. It observed at paragraph 5:
"Peninsula's business model is plainly premised upon a professed expertise in employment law and practice. Peninsula also hold themselves out as being an "
Employer of Excellence". …. In fact, this is a standard devised by Peninsula themselves …"[7]Mr Rees and Mr McLachlan were employed by Peninsula as Advocates. After initially occupying a different role, Mr Jaffier was employed by Peninsula as a Trainee Advocate. All three Claimants were dismissed on 30 January 2006. The reason for their dismissals was said to be redundancy. Mr Rees presented an ET1 on 11 April 2006, Mr McLachlan on 15 April 2006 and Mr Jaffier on 22 May 2006. By its RSJ of 20 December 2007 the ET held that the Claimants had been unfairly dismissed. The ET also upheld in part the sex discrimination claim against the company made by Mr Rees and the race discrimination claims against the company and Mrs English made by Mr Jaffier.[8]Miss Malik presented an ET1 on 1 June 2007. By the MSJ of 17 January 2008 the ET found that Peninsula offered Miss Malik, who is partially sighted, a post as a Trainee Investigations consultant but failed to make reasonable adjustments with the result that she was unable to take up the position. It upheld her claims under the DDA and awarded her compensation.[9]Until 31 December 2007 the EJ sat part time and was a Partner in a five partner firm of solicitors, Mills Kemp & Brown ('MKB') which is based in Barnsley. According to a printout of its website MKB undertakes personal injury, family, criminal litigation and employment law work. As a Partner of the firm the EJ undertook employment law and personal injury cases.[10]The hearings before the ET in the Rees case started on 4 December 2006 and continued on various dates thereafter. Between the hearing dates 27 April 2007 and 18 June 2007 the following advertisement was placed on 25 May 2007 by the EJ's then firm in the Barnsley Chronicle:
"Employers, For employment issues would you prefer to: Deal only with qualified and experienced Solicitors whose expertise was recently recognised in a prestigious national award and who have dealt with cases at all levels including the House of Lords? Deal with a local firm whom you can see and talk to at any time and avoid having the potential risk of dealing with untrained and unqualified 'consultants' or inexperienced and unqualified call centre 'operatives'? Secure insurance cover (with no excess) against Employment Tribunal awards for an inexpensive premium, the cost of which may be spread over the year? Have access to qualified legal representation at Employment Tribunal hearings, the costs of which are met from the same cover? Avoid expensive and lengthy tie ins of 3 or 5 years and pay only for the professional services that you actually utilise, avoiding subsidising others because you have to pay a large lump sum each year for services you may never use? If so, then we at Mills Kemp & Brown have the perfect deal for you. Please contact us for further details. We will be holding a seminar for businesses who wish to benefit from the services we can offer on 14 June 2007…"
[11]The EJ took part in the seminar on 14 June 2007. This was four days before the resumed hearing of the Rees case.[12]Mr Rees pointed out in his skeleton argument that during the hearing the EJ mentioned that he was an employment law solicitor, a partner in a firm in Barnsley. The EJ did not mention the advertisement in a local Barnsley newspaper or his participation in the seminar which it was advertising.[13]By a decision entered in the Register on 20 December 2007 the ET promulgated its judgment in the Rees case.[14]On 22 February 2008 Peninsula raised the question of the association of the EJ with the derogatory views about employment consultants contained in the advertisement placed by MKB of which the EJ was at the time one of five partners. Peninsula made an application that the EJ recuse himself from further participation in the Rees case.[15]By the RRecJ of 9 April 2008, in dismissing Peninsula's application that he recuse himself the EJ observed in paragraph 72 that:
" … the marketing strategy at the heart of Mr Samson's submission was simply insufficient, in our view, to give rise to a real possibility of bias and hence the need to raise that issue."
[16]The following chronology is based on the material parts of those submitted on behalf of Peninsula and Miss Malik and the relevant events referred to in the skeleton argument of Mr Rees. 1. Rees hearing 4-8.12.06 11-12.12.06 25-26.1.07 19-23.3.07 23-27.4.07 2. EJ's firm MKB's advertisement in the Barnsley Chronicle . 25.5.07 3. EJ's firm MKB's Seminar 14.6.07 4. Rees hearing 18-22.6.07 5. Mr Anslow emails Peninsula (incorrectly addressed) re a recruitment advertisement 9 and 10.9.07 6. Rees hearing 10 and 11.9.07 7. Mr Anslow emails Peninsula and resends his application (without attachments) 11.9.07 8. Rees hearing submissions 12.9.07 9. Rees hearing ET in chambers 13 and 14.9.07 10. Peninsula replies to Mr Anslow 14.9.07 11. Mr Anslow resends application with CV 15.9.07 12. Rees hearing ET in chambers 25,26.9.07 13. Mr Anslow follows up his application 27.9.07 14. Rees hearing ET in chambers 8.10.07 15. Mr Anslow follows up his application (incorrectly addressed) 7.11.07 16. Malik hearing 22, 23.11.07 17. Mr Anslow sends a letter following up his application referring to the failure of Peninsula to respond to his application as 'galling' . 30.11.07 18. Peninsula invites Mr Anslow to a preliminary interview 3.12.07 19. Peninsula confirms Mr Anslow's interview 5.12.07 20. Mr Anslow confirms interview attendance 7.12.07 21. Mr Anslow attends interview completes formal application 10.12.07 22. Mr Anslow invited to second interview 12.12.07 23. Rees RSJ 20.12.07 24. Mr Anslow attends second interview and is offered the job 20.12.07 25. Mr Anslow accepts job offer with Peninsula 21.12.07 26. Peninsula confirms job offer/start date 21.12.07 27. EJ retires as partner of MKB 31.12.07 28. EJ takes up full-time EJ post 1.1.08 29. Malik hearing, final day (for submissions, decision and remedy) 4.1.08 Ellen Singer, EJ Ms Niaz (counsel for Miss Malik) learn of Mr Anslow's job offer from Peninsula Recusal of Mr Anslow Parties agree to continue with EJ and one member. 30. Malik written reasons 18.1.08[17]The third and final day of the hearing of the Malik case took place on 4 January 2008. Before the hearing started the EJ explained that a lay member of the ET, Mr Anslow, had told him that after the hearing in November 2007 he had been offered a role with Peninsula. He asked the parties for their thoughts on the matter.[18]What then happened gives rise to the second basis of the bias objection to the Malik proceedings. At the hearing of this appeal on 6 April 2009 we were informed that the parties to the Malik case had agreed a note dated 11 December 2008 (the 'Agreed Note') of the exchanges on 4 January 2008 between the EJ and the parties' representatives. Mrs Singer, one of its consultants, represented Peninsula and Miss Niaz, Counsel, appeared for Miss Malik. The Agreed Note summarises the exchanges regarding continuing the Malik case with the EJ and one lay member.[19]We set out in full the relevant passages of the Agreed Note:
"13. Mr Brain then sought the parties views on proceeding with just two members. Ms Niaz stated that she thought this was not an ideal situation and that her client had made a comment to that effect. She said, however, that as they were in this situation, she believed the hearing should proceed with two members on the basis that the Claimant was paying for the representation herself and that she thought it would be prejudicial for the Respondent to be given a second bite at the cherry, as they would have had the benefit of having heard all the Claimant's cross-examination questions, and could close up the gaps for the next time, as in her submission their cross-examination had gone so badly. She said she therefore felt that it would be overly prejudicial to abandon this hearing and to start again with another tribunal. Ms Niaz also said that Mr Anslow had asked some very pertinent questions and that they had found it very useful to have his knowledge available to the tribunal. Mr Brain stated that they had heard those questions and answers, and had had the benefit of Mr Anslow's expertise in matters up to this point. Ms Niaz re-stated that, given the costs to the Claimant and the fact that the hearing could be used as a dry run, she felt that the only option was to continue with two members. 14. Mr Brain then asked Ms Singer for her comments. Ms Singer said that the situation was less than ideal and that there were problems with both options. Ms Singer stated that the Claimant had not been the only party put to costs in relation to this matter. Ms Singer said that she did not believe that the prejudice argument really held any weight in respect of the issue of cross-examination, as it applied equally to both sides, and as such, the Claimant equally had a chance to tighten up her evidence. 15. Mr Brain put to Ms Niaz that this issue on cross-examination applied equally, and counsel stated that she only had one witness (the Claimant) whose evidence was obtained in the detailed witness statement. Both Mr Brain and Ms Singer stated that counsel had two witnesses: the claimant and Alan Carruthers. She went on to say that her client wished to proceed, particularly in light of the costs already incurred and of the costs in running the hearing again."
[20]Miss Niaz and Mrs Singer then signed a form consenting to the proceedings continuing to be heard by the EJ and one member who was a member of the employer's panel. The ET found in favour of Ms Malik and awarded her compensation of £21,659.[21]In accordance with practice, the EJ was invited to comment on the allegations of apparent bias in the Notices of Appeal. His response of 18 September 2008 included the following:
"In conclusion, therefore, the material referred to in paragraph 26 of the Grounds of Appeal and the appendix thereto is not, upon proper consideration, undisclosed material information. On the contrary, it is material information readily available to the parties and which ought to have been fully considered by the appellants in considering whether or not to make their recusal application. Further, it is material to which I would have had to make reference at some point in any event."
The applicable legal principles[22]There is common ground between the parties to the appeal as to the legal principles to be applied in considering whether a judicial decision is to be set aside on grounds of appearance of bias. However Mr Samson for Peninsula and Miss Ling for Miss Malik each draw attention to particular dicta from the authorities to advance their cases. The real difference between them arises from the application of those principles to the facts of these appeals.[23]We set out our exegesis of relevant principles derived from the authorities which are applicable to the circumstances of these cases. This draws extensively from the excellent skeleton arguments of both counsel and of Mr Rees. Appearance of bias[24]The law recognises three types of bias:(a) Actual bias;(b) Interest bias;(c) Apparent bias, on which this appeal is based.[25]Actual bias arises where the existence of partiality or prejudice is shown: Locabail v Bayfield Properties Limited [2000] IRLR 96 , paragraph 3.[26]Interest bias arises where the Judge is shown to have an interest, pecuniary, proprietary or otherwise, in the outcome of the case. In such cases, disqualification of the Judge from hearing the case is automatic ( Locabail , paragraph 4). On proof of the requisite facts, the existence of bias is effectively presumed. However, where the potential effect of a decision on the Judge's personal interest is so small as to be incapable of affecting the Judge's decision one way or the other, a ' de minimis ' exception applies ( Locabail , para 10).[27]The test for the third type of bias was stated in the case of Porter v McGill [2002] 2 AC 357 to be :
" whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased."
[28]The task of the appellate court is to ascertain all the circumstances which have given rise to the suggestion that the Judge was biased and then ask whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the Tribunal was biased ( In re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700 at para 85 ; Lawal v Northern Spirit Ltd [2003] ICR 856 and Locabail ).[29]The question of apparent bias in circumstances where a Judge sits part time and also conducts practice as a lawyer was considered in Locabail by a Court of Appeal consisting of the Lord Chief Justice, the Master of the Rolls and the Vice-Chancellor. The Court considered an apparent bias challenge to the judgments in four joined cases which had been heard by a Deputy High Court Judge who was also a solicitor Queen's Counsel and by a barrister Recorder. The Court observed:
"20. …While it is vital to safeguard the integrity of court proceedings, it is also important to ensure that the rules are not applied in such a way as to inhibit the increasingly valuable contribution which solicitors are making to the discharge of judicial functions. Problems are, we apprehend, very much more likely to arise when a solicitor is sitting in a part-time capacity, and in civil rather than criminal proceedings."
[30]We set out dicta from Locabail which are of particular relevance to the appeals before us: "1. If, in any case not giving rise to automatic disqualification and not causing personal embarrassment to the judge, he or she is or becomes aware of any matter which could arguably be said to give rise to a real danger of bias, it is generally desirable that disclosure should be made to the parties in advance of the hearing. If objection is then made, it will be the duty of the judge to consider the objection and exercise his judgment upon it. He would be as wrong to yield to a tenuous or frivolous objection as he would to ignore an objection of substance. (para 21) … 2. If there were real ground for doubting the ability of the judge to ignore extraneous considerations, prejudices and predelictions and bring an objective judgment to bear on the issues before him, a real danger of bias may be thought to arise. (para 25) 3. If in any case there is real ground for doubt, that doubt should be resolved in favour of recusal. (para 25) 4. Every application must be decided on the facts and circumstances of the individual case. 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 (other things being equal) the objection will be. (para 25) … 5. There can be no real apprehension or likelihood of bias if the judge does not know of the facts which are relied upon as giving rise to the conflict of interest. (para 55) … 6. Even where automatic disqualification applies, a party with an irresistible right to object to a judge hearing a case may waive his right to object. (para 15) 7. Any waiver must be clear and unequivocal, and made with full knowledge of the facts relevant to the decision whether to waive or not." (para 15)[31]In R v Bow Street Magistrate ex parte Pinochet (No 2) [2000] 1 AC 119 Lord Browne-Wilkinson held at page 137 that that a party waiving his right to complain of bias must have 'acted freely and in full knowledge of the facts'.[32]Guidance as to how a tribunal ought to go about raising the question of bias and inviting waiver from the parties was given in Jones v Das Legal Expenses Insurance Co Ltd [2004] IRLR 218 at paragraph 35. Relevant aspects of that guidance are:(i) The judge's explanation must be full and carefully noted;(ii) The options open to the parties should be explained in detail and the parties told that it is their right to object;(iii) The parties should be told that time will be afforded to reflect before electing. 33. It was also noted, however, that this was not a set of rules to be complied with if a waiver was to be valid ( Smith v Kvaerner Cementation Foundations Ltd [2007] 1 WLR 370 , para 29):
"the vital requirements are that the party waiving should be aware of all the material facts, of the consequences of the choice open to him, and given a fair opportunity to reach an unpressured decision."
Application to the facts: the submissions of the parties[34]Mr Samson on behalf of Peninsula contended that the EJ should have disclosed during the hearing of the Rees case that the firm in which he was a partner had published an advertisement for their employment law services which not only emphasised the benefits of the service which the firm offered but was also critical of non solicitor employment law consultants. Peninsula was known to be the largest organisation in England offering such employment consultancy services. It was said that the EJ was closely connected with the advertisement because in the five partner firm he was the partner who specialised in employment law. Indeed it was a feature of the promotion of the firm's capabilities in employment law that he was a part-time EJ. He also attended the marketing event which was advertised.[35]Mr Samson relied upon the proximity in time of the publication of the advertisement and the holding of the marketing event to the resumed hearing of the Rees case. He submitted that the EJ must have been aware that he should have made disclosure because it and the seminar must have been fresh in his mind. The advertisement appeared on 25 May 2007 about three weeks before the resumption on 18 June of the Rees hearing. The seminar which it advertised took place on 14 June 2007, four days before the resumed hearing. The proximity of the adverse comments in an advertisement with which the EJ was so closely connected about a group of which Peninsula was a member would lead a fair minded and informed observer to conclude that there was a real possibility that he would be biased in determining a claim against Peninsula.[36]Further, Mr Samson relied on what he characterised as overly hostile remarks about Peninsula in the RSJ as evidence that the EJ held the adverse views of consultants reflected in the advertisement and that a fair minded observer would so conclude from such comments. The following paragraphs in the RSJ were relied upon in this regard: 130, 136, 175, 193, 241, 242, 287, 302, 421 and 432. In paragraph 136 the ET observed in relation to a claim in respect of unlawful deduction of £50 from Mr Jaffier's wages:
"We remind ourselves that Peninsula holds itself as the biggest employment law consultancy in the country. For such an organisation to flagrantly breach employment legislation is, frankly, astonishing. It is simply no answer to say that once Peninsula realised that their actions were illegal, they gave Mr Jaffier his money back. … When he gave evidence, Mr Huss said that he took the view that the deduction of £50 from Mr Jaffier's salary was lawful. For a man of Mr Huss's experience to make this assertion in the circumstances is frankly incredible. Peninsula acted illegally, they knew or ought to have known they were acting illegally and yet they carried on regardless."
[37]In paragraph 241 the ET referred to Peninsula being out of step with guidance which they 'are happy to issue to clients'. In paragraph 302 they said:
"It bears repeating once again that Peninsula holds itself out as having expertise in employment law and practice. It is a large employer."
At paragraph 421 the ET observed:
"Put simply, Peninsula did not practice what they preach. …However, the claimants did have a legitimate expectation that Peninsula would comply with those standards of behaviour. This is all the more so where Peninsula hold themselves out as being an "
Employer of Excellence", (Peninsula having awarded themselves that accolade)."[38]The same contentions were repeated in support of the proposition that the EJ should have informed the parties in the Malik case of the advertisement and the related marketing seminar.[39]In addition, Mr Samson contended that the Malik hearing was tainted by appearance of bias by the presence on the ET of Mr Anslow. Both parties agreed that his recusal was necessary in the light of his previously undisclosed application to and offer of a post with Peninsula which he then turned down. Peninsula was represented in the Malik proceedings by one of their consultants, Mrs Singer, who was experienced at ET hearings but was not a qualified lawyer. Mrs Singer said in paragraph 20 of her statement of 29 February 2008 that she did not feel that continuing the hearing with two members was a question of needing her consent but rather that it was for the ET to decide having heard her comments.[40]Mr Samson contended that consent to the Malik hearing continuing with the EJ and the remaining lay member was not freely given as Mrs Singer was under the impression that the EJ had made up his mind to do so. Further it was said that her consent was not fully informed as the EJ did not reveal his connection with the advertisement which denigrated employment consultants such as Peninsula. Yet further Mr Samson questioned whether consent to continuing with a two person Tribunal could operate retrospectively to overcome the problem posed by Mr Anslow having participated in the hearing days before 4 January 2008.[41]Mr Samson questioned whether once the EJ's involvement in the seminar was raised as an issue in February 2008 it was appropriate for him to continue to preside over the Rees case. The review and remedy hearings had not yet been held. It was further suggested that the EJ's approach in the RRecJ might not appear to the fair-minded and informed observer to show that he was giving independent judicial consideration to the case.[42]Mr Rees drew attention to the timing of the complaint of bias in his case. It was made after judgment was given against Peninsula. He suggested that if the judgment had gone in its favour, Peninsula would not have raised the issue. He contended that during the hearing Peninsula had the opportunity of complaining about the fact that the part-time EJ was a practising solicitor but did not do so.[43]Mr Rees made the point that the behaviour of advertising in the way that they did was entirely understandable. Mr Rees pointed out that the advertisement did not name Peninsula or any other consultancy. It merely suggested that clients should choose qualified people to represent them.[44]Mr Rees contended that the facts relating to the MKB advertisement and seminar did not give rise to an appearance of bias on the part of the EJ and the appeal should be dismissed.[45]In respect of the complaint regarding the EJ hearing the Malik case against Peninsula, Miss Ling, as did Mr Rees, commented that the MKB advertisement did not mention Peninsula. MKB was a five partner high street firm operating in Barnsley. The advertisement was only published in Barnsley. Peninsula, by contrast, operates nationwide and is based in Manchester. Miss Ling contended that no realistic risk of appearance of bias was caused by the MKB advertisement or by the EJ's participation in the seminar which, in any event, took place about five months before the hearing of the Malik case.[46]As for appearance of bias arising from Mr Anslow's presence on the Tribunal, Miss Ling rightly agreed that it was necessary for him to be recused. However she contended that in light of Miss Singer's agreement to the case continuing with the EJ and the other lay member, Peninsula had waived any right to challenge the proceedings on grounds of apparent bias. She placed reliance on paragraph 59 of the judgment of the Court of Appeal in Locabail that:
"In a case in which before or during the trial facts relating to the alleged bias have been disclosed to the parties, it seems to us right that attention should be paid to the wishes of the parties. They are the principals. If they are content that the trial should proceed the judge should, in our view, except where he doubts his ability to be impartial, be very slow to abort the trial. If one party wants the trial to continue and the other wants it aborted, the judge must decide what to do, weighing all the factors and asking the questions to which we have referred. It follows that we do not accept that the discovery of a conflict of interest which, under the Law Society's conflict rules, would disqualify a solicitor from acting for one or other of the parties to case necessarily bars the solicitor from hearing the case as a deputy judge or requires a hearing already started to be aborted or a judgment given on the case to be set aside. Everything depends on the circumstances of the particular case."
[47]Miss Ling also drew attention to the passage from paragraph 15 of Locabail to the effect that even in a case of interest bias, a right to complain subsequently may be waived by a party. Discussion[48]Solicitors are entitled to advertise their services. They can point out the expertise of their partners. It is common practice for them to make a feature of particular experience of members or partners in their firms. In advertising employment law services there would be nothing wrong in a firm of solicitors pointing out that one of their partners is a part-time EJ.[49]If that had been the extent of the MKB advertisement, in our judgment Peninsula would have had no cause for complaint. However the advertisement not only promoted the firm's expertise in employment law but went beyond that to denigrating unqualified employment law consultants. Although Peninsula were not named they are a very well-known and large organisation offering such services. The EJ was well aware of this as is evidenced by the references in the RSJ to Peninsula's size and prominence.[50]In our judgment it is immaterial that MKB operated principally in Barnsley and not nationally and that they were advertising to encourage local businessmen to use their services and attend their seminar, whereas Peninsula offer their services nationally. Competition from Peninsula for employment law business in Barnsley is not the issue. The question for us is whether the fair minded and informed observer could have concluded that there was a real risk the EJ would be prejudiced against unqualified employment consultants.[51]The judgment of the Court of Appeal in Timmins v Gormley , a case heard with Locabail and reported under the name of that case, is of assistance. In Timmins the Recorder hearing a personal accident case had made adverse comments about 'defendants' experts' in articles written soon before the trial. The Court of Appeal held at paragraph 89:
"We have found this a difficult and anxious application to resolve. There is no suggestion of actual bias on the part of the recorder. Nor, quite rightly, is any imputation made as to his good faith. His voluntary disclosure of the matters already referred to show that he was conscious of his judicial duty. The views he expressed in the articles relied on are no doubt shared by other experienced commentators. We have, however, to ask, taking a broad common sense approach, whether a person holding the pronounced pro-claimant anti-insurer views expressed by the recorder in the articles might not unconsciously have leant in favour of the claimant and against the defendant in resolving the factual issues between them. Not without misgiving, we conclude that there was on the facts here a real danger of such a result. We do not think a lay observer with knowledge of the facts could have excluded that possibility, and nor can we. We accordingly grant permission to appeal on this ground, allow the defendant's appeal and order a re-trial. We should not be thought to hold any view at all on the likely or proper outcome of any re-trial."
[52]In our judgment the facts of the Rees case are comparable to Timmins . The EJ hearing the Rees case was associated with the expression of trenchant derogatory views about unqualified employment law consultants. Peninsula would be identified by an informed observer as falling within that category. The newspaper advertisement and the seminar which it advertised appeared and took place a few days before the resumed hearing of the Rees case on 18 June 2007. The materiality of the advertisement and the seminar was recognised by the EJ in his comments on the Notices of Appeal. He stated in his letter of 18 September 2009 that the MKB web profile and advertisement was material information readily available to the parties which ought to have been fully considered by the Appellants in considering whether or not to make their recusal application. The EJ did not draw the attention of the parties in either the Rees case or the Malik case to the advertisement. If, as he considered it to be, it was material information, it was for him to draw to the attention of the parties to enable them to decide whether to apply for him to be recused. The EJ did not give Peninsula that opportunity.[53]In our judgment we do not think a fair-minded observer with knowledge of the facts could have excluded the possibility that there was a real danger of the EJ reaching conclusions adverse to Peninsula in the Rees case because of his association with his firm's expressed low opinion of unqualified employment consultants. A fair-minded observer would be likely to consider that the EJ hearing the Rees case held the views expressed in his firm's advertisement published a few days before the resumed hearing in that case.[54]The Malik hearings took place about five months after the publication of the MKB advertisement and the holding of the seminar. The Malik case was concluded after the EJ ceased to be a partner in MKB and after his appointment as a full time EJ.[55]In Locabail the Court of Appeal observed at paragraph 25:
"The greater the passage of time between the event relied on as showing a danger of bias and the case in which objection is raised, the weaker (other things being equal) the objection will be."
[56]In our judgment the distance in time between the hearings in the Malik case and the MKB advertisement and the fact that by the conclusion of the Malik case the EJ was no longer a partner in MKB render it unlikely that the fair-minded informed observer would consider that the EJ would be biased against Peninsula in determining that case.[57]Mrs Singer on behalf of Peninsula gave her consent to the Malik case proceeding with the EJ and one lay member after Mr Anslow rightly was recused. There may be circumstances in which a justified bias objection will be held not to have been waived because consent has not been freely given. On the facts set out by Mrs Singer in her statement of 29 February 2008 and in the Agreed Note it appears that neither the option of aborting the proceedings nor that of continuing with the EJ and one lay member was appealing to either party. However, albeit reluctantly Mrs Singer did consent to continuing with a two person Tribunal. She had undertaken the conduct of the proceedings on behalf of Peninsula. They must have considered her capable of the task. If she had strong objections to continuing with a two person Tribunal she could have withheld her consent.[58]The fact that Mrs Singer was not aware of the EJ's former connection with MKB and its advertisement criticising unqualified employment consultants when she gave her consent to the Malik case continuing with a two person Tribunal is, in our judgment, for the reasons set out in paragraph 56 above immaterial. That fact would not have given rise to a realistic concern of appearance of bias.[59]When consent was given to proceed with a two person Tribunal, Peninsula knew of Mr Anslow's dealings with them and that he had fully participated in the previous two hearing days of Ms Malik's case. In the circumstances consent to proceed with a two person Tribunal was fully informed. The consent given for the hearing of Ms Malik's case to continue with a two person Tribunal composed of the EJ and a lay member was an effective waiver of the right to complain of bias in the respects sought to be raised in this appeal. Conclusion[60]The appeal on grounds of bias against the substantive judgment in the Rees case succeeds. The substantive judgment and findings in the Rees case are set aside. The cases of Mr Rees, Mr McLachlan and Mr Jaffier are remitted to a differently constituted Employment Tribunal for rehearing.[61]The bias ground appeal against the judgment in the case of Miss Malik fails. The case will be relisted for hearing of the other grounds of appeal.