BBC sport ran a beautiful story the other day about what happened when match referee David Somers twisted his ankle in the 66th minute of the Morton vs Airdrie United game. Somers was replaced by an assistant referee, to be replaced by one Chic Kavanagh, who jumped out of the crowd and took up his flag. Airdrie lost 3-1. So they have lodged a complaint with the Scottish FA on the grounds of bias. First, Mr Kavanagh appeared from the midst of a group of Morton supporters, and jumped on the pitch wearing a Morton top. He even came across the pitch and shook hands with some of the Morton players before he took up his official duties. Then, at the end of the game, some Morton players came over and hugged him. Would you say that Mr Kavanagh was biased?
A case came to the Court of Appeal recently called Jones vs DAS Legal Express Insurance. It isn't a building case but no matter. For donkey's years the courts have jealously guarded impartiality. The courts will not tolerate the possibility that any person making binding decisions over others is biased. Very good. But recent cases have turned the heat up on this topic. Ousting a bad tribunal – even one that is possibly bad – is a high priority. And if our adjudicators and arbitrators don't pay attention to this atmosphere, I hope they will be refused entry to the pitch for future matches.
Now then, Mr Jones turned up at court accusing his employer of unfairness. The tribunal was the usual chair with two wing members. Within minutes Mrs Harper, the chair, announced that her husband was a barrister who undertook work for DAS, the employer and defendant. He wasn't involved in the case of course, but the chair asked Mr Jones if he was nevertheless content that she should hear the matter. She had no connections herself with either party. Mr Jones agreed to press on. You might guess what happened next. The tribunal found against him and he complained about the chairman's want of impartiality. He asked for the decision to be voided.
For donkey’s years the courts have jealously guarded impartiality. But recent cases have turned the heat up
The regional chairman of tribunals heard his complaint but he rejected it because Mrs Harper had plainly invited Mr Jones to object at the time. He didn't – so there! The case came to the employment appeal tribunal. There the judge also decided that the fact of disclosure and the fact of no objection made it all too late. Mr Jones then came up before the three judges of the Court of Appeal. They were not that impressed with the approach taken by Mrs Harper.
I'll explain why in a moment. First, I'll give you some of the law relating to bias. There are three types of bias: actual, apparent and presumed. The first is where the decision-maker has an interest in the outcome. The second is the mere appearance of bias – for example, where the judge is under outside pressure of some sort. The third is where bias is where the adjudicating person should automatically disqualify themselves – for example, if their granny is one of the parties. The latter two are adjudged on an objective test, recently revised. This is: "Whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased." Note how the hypothetical observer is a person who is neither complacent nor unduly sensitive or suspicious; and they only have to say, "this is a possibility".
So the appeal judges felt it was not satisfactory to take Mr Jones by surprise at the start of the hearing. He was probably put under pressure to let it go on.
Tony Bingham is a barrister and arbitrator specialising in construction. You can email him on firstname.lastname@example.org.