An appearance of bias on the part of two lay members of an ET panel had arisen from a combination of: (i) comments made by one of the lay members about the Claimant’s behaviour in response to a previous appeal to the EAT by the claimant; and, (ii) the subsequent recusal of the Employment Judge who had chaired the panel for reasons connected with the Claimant’s behaviour at a subsequent case management hearing. The Claimant raised objections when the remitted hearing was to be attended by the 2 lay members; however he only raised those objections after the judge had recused himself. He appealed against the 2 lay members being able to sit on the remitted hearing.

The EAT allowed the appeal, being satisfied, applying the fair-minded and informed observer test, that the complete picture following the judge’s recusal was that an appearance of bias had arisen in relation to the lay members. The matter was remitted to a fresh ET.