Last week members of the Employment Team met to discuss recent developments and tactics.
The vexed question of applications for judicial recusal arose for consideration. Although (thankfully) the issue arises relatively infrequently, it can be difficult to navigate this potential minefield successfully. We considered when it would be appropriate to apply for recusal and the grounds on which such an application can be made. It is always important to step back from the 'heat of battle' and keep a clear head. The case law test in relation to bias must always be borne firmly in mind (see, for example, Locabail UK Ltd v Bayfield Properties Ltd  IRLR 96 and Ansar v Lloyds TSB Bank Plc  IRLR 211 as a starting point). Our top tip is to ensure you have sufficiently clear and objective grounds on which to make such an application. Simply stating that you believe unfairness to be inherent in the hearing is insufficient. A clear note of what has been said or done to provoke the question of bias is imperative so that submissions can be made as to how the events might appear to a "fair minded and informed observer". Consideration should also be given as to how any such application will fit within the client’s wider litigation strategy. For example, if the application fails will they be willing and able to take the issue on appeal?
We also discussed when a Judge can introduce a new provision criterion or practice ("PCP") within a discrimination case which has not previously been proposed or relied upon by the claimant. The case law is clear that a PCP can be considered at any time by the Judge. However, if an application to amend is made after submissions, is it worth objecting to the application considering the case law? In our assessment, it comes down to the question of prejudice and whether a party responding to the application can persuasively argue that they have been put at a disadvantage by the late application. For example, would different or additional evidence have been called if a different PCP had been advanced from the outset?
Finally, we discussed tactics in drafting responses to grounds of appeal. A key point was made in relation to balance. Whilst the response needs to keep open and raise all the arguments you wish to make at the appeal hearing, it should be brief. The detail ought to be reserved for a skeleton argument and the response to the grounds of appeal itself should be clear and succinct. There is a danger that the clarity and strength of the argument may get lost if the document is too lengthy.
The Employment Team meet regularly to discuss legal developments and we look forward to sharing more discussion points with you in the future.