This article was first published in the ELA Briefing.
In Swansea City & County Council v Mrs D Abraham [2025] EAT 93 – a multiple claimant equal pay claim – the respondent appealed against the employment judge’s refusal to recuse herself from a case management hearing. It was submitted that a fair-minded and informed observer would conclude there was a real possibility of bias (Porter v Magill [2001] UKHL 67; [2002] 2 AC 357), on the basis that the judge had previously acted as a solicitor in union-backed equal pay litigation against local authorities. While this was more than 10 years earlier, the same union was involved, some claimants overlapped and the respondent was the same. However, the EAT held that the Porter threshold had not been met, noting that the judge’s recollection of any facts about the previous litigation was diminished by such a long lapse of time; the appellant had not identified any specific area or potential factual overlap which could give rise to residual knowledge influencing case management decisions and; case management is distinct from making findings of fact or issuing a judgment.
Beyond the specific facts of this case, of wider application the EAT also held that:
- it is not necessary to establish perversity when challenging a refusal to recuse, the test is whether the judge was wrong in law to conclude the Porter test was not met;
- there was no error of law in the judge’s decision not to pass the recusal application to another judge; and there was nothing procedurally unfair. In line with the precautionary principle under Locabail (Locabail (UK) Ltd v Bayfield Properties Ltd [1999] APP LR 11/17), in certain situations judges may opt to recuse themselves as a matter of prudence. However, that is not part of the Porter test itself.
Such a ruling does not preclude future reconsideration as a claim proceeds. The EAT emphasised the need for ‘ongoing vigilance’ acknowledging that new facts might emerge which require the Porter test to be revisited.
