In the case of Oni v NHS Leicester City, the claimant brought a claim for constructive dismissal, direct race discrimination and victimisation and was represented by her husband during a 13-day hearing. On dismissing all of the claimant’s claims, the tribunal expressed its view that the claimant had been evasive and equivocal during cross-examination and that she and her husband must have known that her claims had no real prospect of success. The tribunal concluded by stating that the bringing and conduct of the claims were unreasonable.
In light of such clear criticism of the claimant, the respondent applied for its costs. The costs hearing was listed to take place in front of the same tribunal, as is usual practice. The claimant applied for the tribunal to recuse itself, arguing that it had shown bias towards the respondent throughout the hearing and that its judgment had encouraged the respondent to apply for costs which it may not otherwise have done. The tribunal refused this application and went on to award the respondent the full cost of the entire proceedings.
The claimant appealed to the Employment Appeal Tribunal which held that although there was no suggestion of actual bias, the tribunal's comments during the liability proceedings gave rise to apparent bias and therefore the tribunal should have recused itself from hearing the costs hearing. A tribunal should not express itself in such a way as to give the impression that it has already made up its mind on costs in advance of any application being considered.