Imagine the following hypothetical scenario. A solicitor phones: “My life is being made impossible. Because of my firm’s location, all our cases come inevitably before the same region and the same Judges.”
“In the last month, I’ve had cases struck out on the basis of non-compliance with Unless Orders which had lapsed by the time they arrived with me. I’ve had Respondents take the view that they are under no duty to comply with Tribunal disclosure deadlines. They say this to the Judges and are not criticised. Claimants meanwhile are being picked up on the most trivial of breaches.”
“Applications by claimants go into a judicial black hole while orders in favour of respondents abound on the intiative of judges”.
“A minority of my cases are elsewhere, and my day to day experience is that most ET regions are nothing like this. If I could move my offices I would, but I can’t.”
The solicitor asks, “What should I do?”
I circulated the above thought-exercise around some colleagues; two suggested that if they received such a call, they would approach the Office for Judicial Complaints.
Now the OJC does hear complaints about Employment panelists, eg for failing to sit, or being paid by an employer for work while also being paid for sitting as a panelist; for failing to declare a past suspension from union membership for racist conduct; or even (bizarrely) for failing to take the Oath of Allegiance;
But the OJC does not have jurisdiction to hear matters which would be capable of remedy by an ordinary appeal. Individually, each of the above matters would be capable of remedy. Accordingly, it seems, the OJC could not hear a complaint about them.
Indeed the OJC is actually consulting on a name change to make it even clearer what the OJC can’t do: “A significant number of complaints received by the OJC, do not contain allegations of judicial misconduct. In most of these cases, the complainant is unhappy with the outcome of their case, or with the decisions and directions that the judge has made in the course of the proceedings. These are not matters with which the OJC can assist.”
The situation, it appears, would be a Catch-22: because the individual complaints would be capable of appeal, there could be no complaint to the OJC. But the appeal route would involve taking the cases singly; and as I have written previously the EAT rules discourage bias appeals. Launching appeals of individual CMD decisions would not address a complaint of repeated, modest, poor performance by a region: the bias equivalent of an indirect discrimination claim.