how long can a risk of bias last for?

In 2011 Mr John Healey, described as “an experienced litigator”, brought an Employment Tribunal claim against Wincanton Group. The case came before Employment Judge Robinson sitting in Liverpool, was duly heard, and the tribunal reserved its decision. So far, so good.
Unfortunately, Employment Judge Robinson’s memory failed him with disastrous consequences for the eventual judgment, which went against Mr Healey. It transpired, as Judge Robinson did recall before giving the judgment, that previously he had acted for Mr Healey in his capacity as a partner at Jackson & Canter. Furthermore, in 1998, he had dismissed a claim brought before him by Mr Healey – a decision overturned by the Employment Appeal Tribunal on the basis of the appearance of bias. The Judge should not have heard the case or continued with it after actual knowledge.
Apparently Mr Healey’s memory was better than that of the judge (who in fairness cannot perhaps be expected to remember every client and every party before him during his career), but he was unaware that he could have applied for the judge to recuse himself, and so kept his silence. When he lost, however, he appealed on the grounds of bias. It is all the more remarkable that, although Judge Robinson might not remember all the cases he had dealt with, one would have thought that he would be very likely to have remembered one which was the subject of a successful appeal on the ground of bias. However that was not the case, or at least not until well into the case, and history therefore repeated itself.

when criticism becomes apparent bias

Tribunal judges have the power and are encouraged to deal robustly with weak and vexatious claims (or indeed defences – sauce for the goose…), and in doing so are likely to be critical of the conduct of the case by the party in question. However, they must take care not to overstep the mark and appear to prejudge other issues – for example an award of costs. In Oni v NHS Leicester, the tribunal dismissed a nurse’s claims of constructive unfair dismissal, race discrimination and victimisation after a long hearing and commented that both the claims and the way in which they had been conducted were unreasonable. In particular they said she was an unreliable witness and her answers to questions were evasive and equivocal. An application was made for costs against her; she argued that the same tribunal should not consider the question of costs, on the ground of bias, but the tribunal declined to step down. The matter went to the Employment Appeal Tribunal who accepted that while there was no actual bias, the views expressed about the case’s weakness meant that there was apparent bias and so costs should be considered by a differently constituted tribunal. While tribunals are entitled to comment on the conduct of claims before them, they should be careful not to go too far and indicate what view they would take on a costs application.
A further point which arose from the case was that when considering costs the tribunal had not taken any account of the claimant’s ability to pay an award of costs. This is a factor which should always be taken into account – and it was suggested that tribunals could usefully direct the use of county court form EX140 to establish the losing party’s financial circumstances.
This case is particularly timely because, taking into account the Government’s proposed reforms, we can expect to see a significant increase in the number of costs awards made, as well as the "weeding out" of unmeritorious claims.