Council fails in appeal over refusal of judge to recuse herself from hearing equal pay claims
The President of the Employment Appeal Tribunal has rejected a local authority’s appeal after an employment judge refused to recuse herself from a case management hearing in an equal pay multiple.
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The application by Swansea City & County Council had been made on the basis that the judge had previously acted as a solicitor in union-backed multiple equal pay claims against local authorities over 10 years before.
In Swansea City & County Council v Abraham & Ors (Apparent bias; recusal) [2025] EAT 93 (11 July 2025), Lord Fairley concluded there was nothing procedurally unfair in the judge's reliance upon passages of Locabail (UK) Limited v. Bayfield Properties Limited [2000] IRLR 96, nor was it an error of law for her not to pass the recusal application to a different judge.
The background to the appeal was that in July 2024, Mrs Abrahams and around 1,000 other employees of the local authority (the claimants) presented complaints to the employment tribunal that the appellant council had breached the equal pay and indirect discrimination provisions of the Equality Act, 2010.
On 9 August 2024, a legal officer wrote to the representatives of the parties to advise that the multiple would be overseen by Employment Judge Moore at case management hearings, and might also be allocated to her in due course for further preliminary hearings and final hearing(s). The letter of 9 August continued:
"Prior to her appointment as a salaried judge, Judge Moore was a solicitor in private practice at Thompsons Solicitors between 2007 - 2013. As part of that role, Judge Moore was responsible for supervising a team of lawyers working on the equal pay litigation against local authorities and NHS Trusts in Wales. The litigation was brought by multiple claimants who were members of the GMB and Unison trade unions. Judge Moore also represented claimants in claims brought against local authorities and also supervised other lawyers who had conduct of such claims. Due to the number of claimants within the multiples (in the tens of thousands) Judge Moore is unable to say whether she may have been instructed to act for any of the claimants now involved in this litigation and has no recollection or knowledge of any individual claimants.
“Should either party wish to raise any issues they are asked to do so sooner rather than later which will likely necessitate a preliminary hearing to be listed."
By letter dated 13 August 2024, the local authority made an application for the employment judge to recuse herself.
It was submitted that some of the claimants in the new multiple had also been claimants in the earlier multiple, the union client was the same, the respondent was the same, and the relevant job titles / roles were the same or similar.
In these circumstances, it was submitted that a “fair-minded and informed observer” would think that there was a real possibility of bias per Porter v Magill [2002] 2 AC 357.
After the judge refused to recuse herself, Swansea submitted that she had erred in law by failing to apply Jones v. DAS Legal Expenses Insurance Co. Limited and Hamilton v. GMB (Northern Region)), by relying upon principles derived from Locabail (UK) Limited v. Bayfield Properties Limited, and in “failing properly to apply the precautionary principle”.
It was further submitted that (i) the judge's reliance upon Locabail was procedurally unfair; and (ii) the recusal application should have been heard by a different judge. In these circumstances, the decision not to recuse was said to be wrong in law and / or perverse.
Considering the application, Lord Fairley found that the judge was “plainly aware” of both Hamilton and Jones and cited both. She also referred to and correctly quoted the test for apparent bias as set out in Porter.
The judgment summary stated: “Neither Hamilton nor Jones diminishes the weight of Locabail as an authority on apparent bias, either generally or specifically in relation to the passages of Locabail relied upon by the employment judge.
“It is important to distinguish between the pragmatism of the precautionary principle on the one hand and the strict application of the Porter test itself on the other. Where a judge has refused to recuse and that decision is then challenged on appeal, the standard which the appellate court must apply is still that described in Porter.”
It was noted that the onus of establishing a duty to recuse rests upon the applicant, and that the judge had not erred in concluding that the Porter test was not met.
The judge found: “The fair-minded and informed observer would have recognised that any agent / client relationship between the judge and a union client represented by her former employer firm had ended more than a decade previously.
“The fair minded and informed observer would also have recognised that mere knowledge of the law and the practice of equal pay litigation does not, of itself, give rise to any real possibility of bias. They would have noted that the judge's recollection of any facts about the previous litigation in which she had been involved was understandably diminished by the passage of time and that, in any event, case management is a different exercise to that of hearing evidence, making findings of fact and issuing a judgment.
“Importantly, they would also have noted that the party applying for recusal had not identified any specific area of actual or potential factual overlap of which residual knowledge would (or even might) consciously or unconsciously influence case management decisions.”
Refusing the appeal, Lord Fairley concluded that there was nothing procedurally unfair in the judge's reliance upon Locabail, nor was it an error of law for her not to pass the recusal application to a different judge.
Lottie Winson
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