Sandie Peggie vs NHS Fife Health Board and Dr Beth Upton, following Employment Tribunal judgment - thread #62

You could easily have a case where all parties agreed that the judge decided a case in the right (or, only possible) direction, and yet, that he clearly exhibited bias and failed properly to exercise the judicial function. There could be no appeal then, so what is supposed to happen?

(Imagine a case where (based on evidence given in court, let's say, to account for the case having come to court in the first place) it is completely obvious to everyone which side is right. The Judge, however, slurred his words and repeatedly fell asleep every afternoon, and then wrote a judgment in which he said the fairies told him the answer in his dream, or indeed explained how he tossed a coin repeatedly until it gave him the answer he wanted.)

My guess is that the frustration around the rejection of Ground 13 has been the key driver in the decision to publish the NOA at this stage.

Ground 13 – Appearance of bias and/or failure properly to discharge the judicial
function

Thank you @prh47bridge, as ever fascinating insights. Does the second clause of this allow it to be tackled from the angle of incorrect processes even without enough indication of bias? Or is that legalese for something in the bias line too?
Taking it to a hypothetical extreme, if a ET judge went mad and wrote in his judgement that he had tossed a coin to decide who won, would that be appealable as failure to properly discharge the judicial function?

My frustration is that Ground 13 seems to be about whether generative AI was used in writing the decision. If it has been denied, then are we able to get a finding on whether it was used and if so, it was incorrectly used.

Forgive me if it's addressed elsewhere in the grounds as I have haven't read the full document, but if Ground 13 is refused, how does this blatant incorrect citing get addressed and then stopped?

It's not about whether the judgement was correct, it's about oversight of and ability to deal with failures of process or training. In this case made up quotes and misuse of slip rule. On a wider basis possibly a need for training all tribunal judges to ensure they understand Forstater, FWS etc.

To compare with a different professional field, a doctor can be disciplined for incompetence and failure to follow correct processes even if all their patients recover. The NHS has audit processes to identify systemic problems independently of individual outcomes.

All the errors going one way could simply mean that their understanding of the relevant law is wrong. It doesn't necessarily mean they are biased.

No, you cannot completely separate them. We cannot have a situation where a judge is disciplined for incompetence when the appeal courts have not considered the case. What would happen if a judge was disciplined for incompetence on the basis of a judgment which was subsequently upheld by the Supreme Court? Only the courts can decide whether the judge got it right. Having a situation where the Judicial Office for Scotland and the JCIO could second guess the courts would lead to chaos.

True. But still, where multiple ETs come up with similar (albeit incorrect) decisions on the same points of law in a short period, ETs having a common incorrect understanding of the law would be considered more likely than them all being biased. So I still think the existence of Kelly v Leonardo makes a finding of bias against this ET less likely.

Which is why I believe there needs to be a system for dealing with judicial incompetence separately from the appeal process.

As it stands there appears to be no real mechanism to deal with people who shouldn't be doing the job, or who need significant retraining.

@prh47bridge "One of the problems with finding this ET biased is that the judgment in Kelly v Leonardo came out before this one. Whilst it was not a binding precedent, the tribunal was entitled to regard it as persuasive. The EAT may therefore take the view that following that precedent was not evidence of bias."

The Kelly judgment came out on 3/12 and Peggie judgement on 8/12 with a weekend in between. Half-speed handwriting Kemp may technically have been entitled to 'follow' the precedent but it would be extraordinary to think he would have had time to go through that judgement with the panel, and then consult with his mystery colleague, and then finesse a 300+ page judgement, ready to be typed and checked and published in less than 3 working days time!

Thanks @prh47bridge , your posts are always so informative

As a lay person I feel that "fair-minded" sounds quite subjective. I wonder if there is a legal definition of the term. I wonder if the anonymous mythical judicial colleague was fair-minded.

In terms of bias I am thinking about the fact that all the errors in the judgement were unfavourable to Sandie. What would the odds be of plain incompetence producing such an outcome? That's an objective measure.

Yes, he is.

The test for bias was set in Porter v Magill. It 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." This is regarded as a high bar, and it is difficult for us to judge as we are not what the courts would consider fair-minded. Apart from the occasional interloper, everyone on these threads supports Sandie. It is pretty common for people to think the tribunal is biased when it makes a decision they don't agree with. The question is whether someone with no views one way or the other would consider the tribunal biased rather than simply incompetent.

Robust questioning, evidence management and sharp remarks by a judge are all regarded as legitimate case management rather than evidence of bias.

Findings of bias are rare. I wouldn't personally say that this is the legal system closing ranks. In my view it is right that the bar for proving bias is high, so it is very difficult for any appellant to get over. We don't want an appeal to succeed simply on the grounds that the judge was a bit mean, or that the appellant doesn't agree with the outcome and therefore thinks the judge was biased.

One of the problems with finding this ET biased is that the judgment in Kelly v Leonardo came out before this one. Whilst it was not a binding precedent, the tribunal was entitled to regard it as persuasive. The EAT may therefore take the view that following that precedent was not evidence of bias.

Do I think this ET was biased? Yes, but I have to acknowledge that I am biased in favour of Sandie. Would a fair-minded and informed observer think it was biased? I don't know. To succeed on this ground, Sandie's legal team first need to persuade a judge to allow them to put this argument to the EAT, then they need to persuade the EAT that there was indeed apparent bias. They may be able to, but that is the ground that I think is least likely to succeed.

Apparently, yes. I think someone said upthread.

I have been vaguely watching for news that he's going to spend more time with his family, but haven't found anything yet. Tbh my faith in first-tier EJs has been severely shaken in recent years.

Although earlier @prh47bridgesaid that he could imagine the others being a slam dunk and this one failing. Is it that the legal system is reluctant to condemn judges for bias or is there another reason? As a lay woman I see this as a slam dunk as well.

As a lay person it's hard to see why it was not allowed

Yes, quite. I hope it doesn't mean that the legal profession is closing ranks around Big Sond.

In an ideal world judges would want to see the errors and the questions about the made up quotes flushed out and answered in a transparent way. We don't live in an ideal world though.

Phew, that pulls no punches. Brilliant news that 13 of the grounds are through to EAT.
The rejection of Ground 13 is interesting. As a lay person it's hard to see why it was not allowed. It's very much grounded in demonstrable, look-up-able facts. Can't help wondering if it comes down to we don't want to open this box or we might end up having to rerun the whole tribunal and nobody can face that. It would bring the findings of fact into question wouldn't it?

I agree, this was the most egregious part of the tribunal for me. We saw black-and-white, expert-certified evidence of fundamental dishonesty by Upton / harassment of Sandie but the judge and the panel seem to have gone "lalala" whilst covering their ears / eyes

Unbelievable

Does anyone know if the hapless useless misogynist Sandy Kemp is still presiding over tribunals?

Thanks - found it. I will be interested to see what happens in the rule3(10) hearing.

No, we don't know why the judge refused leave on ground 13 other than that he did not think it was arguable. He will have given written reasons, but we won't get to see them unless someone publishes them.

Do we know why bias was rejected? Can a judge just dismiss a Ground without justification?

To restore confidence in the Judges I think it's important the allegation of bias is heard and if quashed a judge has to articulate why.

Linked in the Twitter post above.

Someone already answered while I was posting.
Where can the grounds of appeal be seen?