An employment judge has been issued with formal advice for misconduct after he was overheard making a comment which amounted to ‘an unnecessary expression’ of his opinion to lay tribunal members.
A litigant in person complained that they overheard employment judge Richard Nicolle making comments ‘which called into question his impartiality’, including that the ‘complainant had made “outrageous” allegations about another judge’.
A spokesperson for the Judicial Conduct Investigations Office said: ‘Judicial office-holders are required to be courteous, tolerant and respect the dignity of all. They should also ensure that their conduct maintains and enhances confidence in their personal impartiality and that of the judiciary.’
The judge acknowledged he had made the comments whilst briefing the two lay members but ‘said they had been presented out of context by the complainant’.
The JCIO said: ‘The hearing in question was a case management hearing. Such a hearing would not usually be heard by a full panel, consisting of a judge and two non-legal members. At the complainant’s request, [Nicolle] had exercised his discretion to constitute a panel including two lay members. This, he contended, was to provide reassurance to the complainant.
‘Judge Nicolle added that after the complainant raised concerns about his comments, at the end of the next hearing day, he and the panel recused themselves to guard against any perception of bias.’
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An investigation found the first two comments complained of did not amount to misconduct. The final comment, about the complainant’s allegations against another judge, did amount to misconduct as it was ‘an unnecessary expression of the judge’s opinion and could have clouded the non-legal members’ view of the case’.
The senior president of tribunals, acting on behalf of the lady chief justice, and the lord chancellor ‘took the view that Judge Nicolle’s comment to the lay members that they were there to make the complainant “feel satisfied” clearly did amount to misconduct on the basis that it was liable to give the lay members the impression that they had no role to play in the proceedings’.
