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Employment Judge’s Acerbic Comments Overstepped the Mark

PLEASE NOTE: Information in this article is correct at the time of publication, please contact DFA Law for current advice on older articles.

Judges are required to be, and to appear to be, impartial. However, in one very rare case, an employment judge was found to have descended into the arena of dispute, making a series of unwarranted comments which put a lawyer under unfair pressure whilst he was trying to do his job.

The case concerned a bus driver who claimed that he had been unfairly penalised and dismissed for his trade union activities. The Employment Tribunal (ET) judge made a number of acerbic interjections during the man’s evidence and that of his witnesses. In the midst of the proceedings, the man’s experienced barrister asked the judge to step down from hearing the case further but he refused.

In upholding the man’s challenge to that decision, the Employment Appeal Tribunal (EAT) found that the judge had overstepped the mark. The man’s barrister had been fearlessly and independently fighting his corner in the best traditions of the bar but had been put under pressure by the judge which an informed and fair-minded observer would have regarded as unfair.

Describing the case as exceptional, and observing that something had clearly gone fundamentally wrong during the hearing, the EAT found that the judge’s questioning of witnesses amounted in substance to cross-examination and the putting of points which were unfavourable to the man’s case. In those circumstances, the EAT directed a complete re-hearing of the case by a fresh ET.

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