Unusual bias case: Employment Judge hearing same case twice

Thanks to Rosa Dickinson of St Philips Chambers for preparing this case summary

Where an Employment Judge has announced a firm conclusion that a Claimant is disabled, but later re-hears this issue himself, does this amount to a real possibility of bias at the re-hearing?

Yes, held the EAT in Menzies Distribution Limited v Mendes. After a preliminary hearing as to disability, the Employment Judge announced his decision that the Claimant was disabled. No oral reasons were given on the basis they were to be provided later in writing.

Unfortunately, the employment tribunal mislaid the tape on which the Employment Judge’s reasons were recorded. As he could not remember aspects of the case, he was unable to comply with his rule 30 obligation to give reasons. Therefore the Employment Judge re-heard the preliminary hearing on disability, and again decided the Claimant was disabled.

Applying the test in Porter v Magill, the EAT found that a fair minded observer would conclude that there was a real possibility of bias as the Employment Judge had announced a firm conclusion (not just a preliminary view) at the first hearing, and was bound to be influenced by this in his re-hearing of the case. The EAT revoked the initial decision as to disability and remitted the question to a freshly constituted tribunal.