Judicial Bias (unusual case)

Thanks to Ed McFarlane of Deminos HR for preparing this case summary

Was there bias in a salaried Employment Judge, hearing a part-time workers claim from a Tribunal lay member, deciding the case with the benefit of his own experience of the bench?

No, held the EAT in McGrath v Ministry of Justice, dismissing the Claimant's appeal. The Claimant compared his lack of a pension with the pension of a full-time salaried Employment Judge. An Employment Judge sitting alone dismissed the claim, as the roles were not comparable.

The employment tribunal heard evidence from a retired Employment Judge as to what his role entailed vis-à-vis lay members. The Employment Judge hearing the case, a Regional Employment Judge, drew on and made observations from his own experience as well as the evidence before him. The Claimant characterised the Employment Judge's approach as taking a 'personal view' leading to an unfair hearing.

The EAT disagreed, there was no closed mind, the Employment Judge gave the Claimant an opportunity to deal with his observations, and had fully engaged with the Claimant in challenging his perception of the roles of lay members and Employment Judge. The whole of the evidence had been considered. Furthermore, the Employment Judge's reasoning was plainly and unarguably right.

The EAT made observations as to the value of lay members, whilst noting that Parliament's will was that lay members should have less involvement in employment tribunals.