Taylor v The Governing Body of Potters Gate Primary School UKEAT/0227/14/KN
EAT finds no apparent bias where Employment Judge and Respondent were governors of different schools within same local education authority.
HHJ Eady QC has today handed down the judgment of the Employment Appeal Tribunal in the case of Taylor v The Governing Body of Potters Gate Primary School UKEAT/0227/14/KN. A full transcript of the judgment can be viewed here.
Ms Taylor was a teacher who had brought claims for constructive dismissal, disability discrimination, less favourable treatment as a part-time worker and of breaches of contract. In general terms the case focused on issues between the Claimant, the head teacher of the school and the school governors and the breakdown of those relationships over time. The Tribunal generally preferred the Respondent’s evidence to that of the Claimant and, in particular, accepted the evidence given by the Respondent’s head teacher. After sitting over 7 days, the Tribunal dismissed all of the Claimant’s claims.
At the time, neither party knew that the Employment Judge chairing the Tribunal was a governor of another school also under the control of Surrey County Council. By the time judgment was promulgated, he had become the Chairman of his school’s governing body. The two schools were in the same grouping of schools, which shared termly briefings for their head teachers. The schools also shared the services of a third party HR consultancy company, Babcock 4S, which provided policies and advice to both schools and which employed one of the witnesses for the Respondent at trial.
The Claimant argued that these linkages between the two schools would have caused a fair minded and informed observer to conclude there was a real possibility of bias, in the Porter v Magill sense, and submitted that the judgment should be overturned and the case remitted to a fresh Tribunal. In particular, the Claimant argued that since this was a case which required the ET to form a view of the credibility of the Head Teacher and the relevant advisor from Babcock 4S, confidence in the Employment Judge’s impartiality was lost, particularly given his failure to mention his role as governor with the parties at the outset.
The EAT agreed with the Respondent that the Porter v Magill test was not made out in this case. It agreed that simply the fact that the Employment Judge was a school governor and this was a case involving a school governing body would not be sufficient to give rise to an appearance of bias. The EAT opined that: “Those carrying out judicial roles will inevitably have life-experiences that may sometimes have superficial relevance to the cases they hear…Many judges hearing cases involving schools and hospitals as parties will have experience of such establishments (whether as a parent, patient, member of governing body or board or in some other capacity). Of itself, such experience cannot properly give rise to any concern. There has to be something more to cause the fair minded observer to conclude that a possibility of bias had arisen”.
What that “something more” was would inevitably be case sensitive. On the present facts, the judge had no prior dealings with any of those involved in the case and was unaware of any connection between the head teachers of the two schools. Applying, Hamilton v GMB  IRLR 391, where the judge was not aware of such linkages, any possibility of bias would be dispelled.
The EAT agreed with the Respondent’s submission that the factors relied upon by the Claimant in this case were analogous to the type of circumstances that the Court of Appeal in Locabail (UK) Ltd v Bayfield Properties Ltd  QB 451 had held would not ordinarily give rise to apparent bias, such as “service or employment background or membership of a social or charitable body”; in other words “life experiences that will not, without more, give rise to proper objection”.
Having scrutinised all the material facts, the EAT held that it was apparent that there was nothing more in this case. In particular, the fact that both schools had access to the same training and advisory services (provided by Babcock 4S) did not change the position. The EAT distinguished Hamilton in that, in contrast to that case, there was no common interest between the Employment Judge and the Respondent in defending a particular line or policy. The Claimant’s appeal was accordingly dismissed.
Tom Kirk appeared for the successful Respondent, both at trial and before the Employment Appeal Tribunal, and was instructed by Surrey County Council Legal Services.