The European Convention on Human Rights. article 6(1) provides:-

"In the determination of his civil rights and obligations ................... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.....".

The Human Rights Act 1998 came into force on 2nd October 2000 and requires the English courts and tribunals to to construe domestic legislation in accordance with the Convention rights "so far as it is possible to do so". It also makes it unlawful for a public authority (as widely defined) to act in a way which is incompatible with a Convention right (see notes at Human Rights/Human Rights Act 1998 ). Similar rules have applied in Scotland since May 1999.

There are many examples of cases in which the impartiality of a court, tribunal or arbitrator has been challenged. The House of Lords has held that overriding consideration to be taken into account is "....... whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased (Lord Hope in Porter v. Magill [2001] UKHL 67, [2002] 2 AC 357, HL(E) at para 103). The practical application of this test in the context of a complaint that an employment tribunal chairman was biased would be to say "If it would appear to a reasonably informed bystander that the Chairman was showing favour to one side unfairly as against the other, the Chairman would have acted in breach of [his][her] duty" (see Thompson v Age Concern EAT 2004 on 2nd February 2004). Given that a tribunal chairman has an influential position both as chairman and as the only legally qualified member of a panel of three, the fact that he could be outvoted by the other two tribunal members is not of itself sufficient reason for him to refuse to recuse himself if he is accused of bias (Lodwick v London Borough of Southwark [2004] EWCA Civ 306, 18th March 2004).

In addition to the Porter case, four cases of particular relevance are:-

1. Kingsley v UK, 7th November 2000, ECHR 35605/97. In that case the European Court of Human Rights held that a person will not have had a "fair hearing" by an "impartial tribunal" within the meaning of Art 6 of the ECHR if the Court has anything less than "full jurisdiction" as established by the case law on article 6. Thus if there are any restrictions on what an appeal court is able to review in a particular case it may be that a hearing by that court will not comply with Art 6.

2. Jiminez v London Borough of Southwark CA 2003 EWCA Civ 502, Court of Appeal on 8th April 2003. With a view to encouraging a settlement, the chairman of the tribunal in that case gave Counsel for the parties a forcefully expressed preliminary indication of the tribunal's view. This was shortly before an 8 week adjournment. In the event the employer lost, as the Chairman had suggested was likely to happen. The EAT ordered a rehearing because of the real possibility of a perception of bias but the Court of Appeal overruled this. The Court of Appeal pointed out that it can be helpful in some cases for a tribunal chairman to let the parties' representatives know the preliminary views of the tribunal but that this must be done with great care and particularly that the chairman should make it absolutely clear that the view is provisional only and that the tribunal is still open to persuasion.

3. Lawal v Northern Spirit Ltd HL 2003 ICR 856. The House of Lords ruled on 19th June 2003 that there should now be "a restriction on part-time judges appearing as counsel before a panel of the EAT consisting of one or two lay members with whom they had previously sat". This overruled the Court of Appeal decision [2002] EWCA Civ 1218.

4. London Borough of Hackney & ors v Sagnia, EAT on 6th October 2005. In that case (in which the EAT gave lengthy consideration to an allegation of bias made against an employment tribunal before it dismissed that allegation but allowed the appeal on other grounds) the presiding judge (Rimer J) pithily said (at para 63):

   "Allegations of bias against employment tribunals are raised as grounds of appeal to this tribunal with what appears to be increasing frequency. They are most commonly made by litigants in person, often with little or nothing by way of tangible support for the complaint, which on analysis commonly amounts to no more than the deployment of the fallacious proposition that: (i) I ought to have won; (ii) I lost; (iii) therefore the tribunal was biased".

It has been decided that neither the State Immunity Act 1978 nor the Commonwealth Secretariat Act 1966 (as amended by the International Organisations Act 2005) (which grant immunity from suit to foreign states in certain circumstances) nor the Crown Proceedings Act 1947 s.10 (which does the same in certain circumstances for the UK) are inherently contrary to art 6 of the European Convention of Human Rights ( Fogarty v The United Kingdom ECHR 2001 , App No 37112/97 ECHR, reported at [2002] IRLR 148, Matthews v Ministry of Defence 2003 House of Lords on 13th February 2003, [2003] UKHL 4 and Jananyagam v Commonwealth Secretariat, EAT on 12th March 2007.

Art 6.2 and 6.3 of the European Convention on Human Rights guarantee additional rights for those charged with criminal offences (such as the right to ".... be presumed innocent until proved guilty according to law"). An attempt to argue that these extended rights also applied to diciplinary proceedings conducted by a regulatory authority which had power to levy fines failed in R v Securities and Futures Authority Ltd & anor ex. p. Fleurose 2001 IRLR 764 High Court (QBD), a decision which was confirmed by the Court of Appeal on 21st December 2001 (reported at [2002] IRLR 297).