Tribunal: Overlaps did not automatically mean possibility of bias
A judge was right not to recuse herself from an equal pay case because of her background handling similar cases when in practice as a claimant solicitor, the president of the Employment Appeal Tribunal has ruled.
Lord Fairley said the application for Employment Judge Moore’s recusal had not identified “any specific area” where her knowledge of such litigation could influence her case management decisions.
He was ruling [1] on an appeal brought by Swansea City and County Council against Judge Moore’s refusal to recuse herself from a case management hearing in an equal pay case brought by around 1,000 of its employees, represented by Leigh Day.
She had told the parties that she worked at trade union firm Thompsons between 2007 and 2013 and had been responsible for supervising a team of lawyers working on equal pay litigation against local authorities and NHS trusts in Wales. Unison was one of the backers of those claims, as it was this one, and there were some common claimants.
She rejected the council’s application to recuse herself, explaining that focus of the equal pay claims she dealt with was different from the latest ones.
“I consider that the application has demonstrated some emotive language in asserting that I had ‘acted against’ the respondents and the respondents’ solicitors,” she went on.
“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 [the test for recusal] 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.”
There were hundreds of thousands of equal pay claims brought during that period, she added, 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.”
On appeal, Lord Fairley said the mere fact of overlaps of parties, lawyers and subject matter did not automatically give rise to a real possibility of apparent bias.
“Mere knowledge” of the law and the practice of equal pay litigation did not, of itself, give rise to any real possibility of bias.
The fair-minded observer “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”.
He went on: “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.”
The meant Judge Moore was right to conclude that the test was “clearly not met”, although Lord Fairley cautioned that there would need to be “ongoing vigilance” if she continued to be involved in the case as it developed.