Tuesday 28 July 2009

Bias: Peninsula and trenchant comments

[Thanks to Ed McFarlane of EEF for preparing this case summary.]

The EAT (Slade J) has handed down its decision in Peninsula v Rees & ors, which is authority for the proposition that the test for the appearance of a risk of bias can be met where a part-time Employment Judge is closely associated with an advertisement expressing trenchant derogatory views about a group of people, in this case unqualified employment consultants, where one of the parties in the case being heard by the part-time Judge (Peninsula) is a member of that group.

The extent of any actual competition between the Employment Judge's practice and the party (para. 50).

In the joined case of Peninsula v Malik, the EAT held, as between the same party and Employment Judge, that apparent bias might not be established with the passage of time and/or a change in the Judge's status to full-time (para. 56).

If a lay member is recused during a hearing and a party consents to proceeding with a 2 member panel, consent is not vitiated even if the full facts about the remaining panel are not known when consent is given, if there is not, on the facts, the risk of an appearance of bias (para. 58).

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