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Employment Tribunal panels: was there apparent bias?

Gateley Legal

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It is obviously important that the members sitting in an Employment Tribunal should be independent and impartial in order to preserve public confidence in the administration of justice.

In the case of  Dr Viviene Lyfar-Cisse v 1) Brighton & Sussex University Hospitals NHS Trust 2) Mr Anthony Kildare the question was asked whether it would give an impression of apparent bias where the same lay member sat concurrently on two separate hearings for claims between the same parties 

What ET1 claims did Dr Lyfar-Cisse submit?

Dr Lyfar-Cisse had submitted an ET1 claiming discrimination. Following her dismissal, she had submitted a second ET1 claiming unfair dismissal and various grounds of discrimination. The claims presented in the first ET1 were heard separately to the claims presented in the second ET1 and by panels led by two different employment judges. All of her claims were dismissed either because they were time-barred and the Tribunal did not have jurisdiction to hear them or because the claims were not made out. 

Was there apparent bias?

Dr Lyfar-Cisse argued amongst other things that the fact one lay member had sat as part of the Tribunal panel in both cases it had resulted in the judgments being tainted with bias and had denied her a fair hearing. However, this was rejected. It was held that a fair-minded and informed observer would not conclude that the lay member's involvement on both panels gave rise to a real possibility of bias. There had been no overlap of evidence between the two cases on any material issue.

Key takeaway point

The objection to the involvement of any member of the Tribunal panel should be made as at the start of the proceedings. The issue had been raised in this case and the fact that Dr Lyfar-Cisse agreed to proceed had amounted to a waiver of any right to object. It was relevant that she had been better placed than any other participant in the proceedings to know what her claims were and what the evidence was in each case so as to assess if the member might have pre-judged any of the issues.

Further information regarding Employment Tribunal panels

If you have any queries regarding tribunal panels and bias, please get in touch with the experts listed below who will be happy to advise you. 

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