Bhardwaj v FDA & Ors

Where circumstances objectively suggest that tribunal members may have had relevant personal or professional connections with parties or witnesses, the appearance of bias may warrant a full hearing. At a preliminary hearing, the Employment Appeal Tribunal may nevertheless determine substantive grounds where that is proportionate and efficient, particularly if success on bias would set aside the whole judgment.

Findings that allegations were false and made in bad faith may be made despite the absence of a specific pleading where the issue arose in evidence, was live at trial, and the parties had notice and an opportunity to address it. Agency, limitation, perversity and adequacy of reasons were factual or evaluative matters for the Employment Tribunal in this case.

The claimant appealed against a lengthy judgment of the London Central Employment Tribunal, which dismissed claims of race discrimination, victimisation and unjustifiable discipline against a trade union and its officers. She alleged that three of the five individual respondents, who were lay members of Employment Tribunals, created an appearance of bias, and also challenged findings concerning falsity and bad faith, agency, limitation, perversity and reasons.

The appeals were listed for a preliminary hearing. The central procedural question was whether the alleged relationships and contacts involving tribunal members, respondents and witnesses were reasonably arguable as creating an appearance of bias sufficient to require a full hearing.

1. The Employment Appeal Tribunal held that the circumstances involving three respondent lay members, two lay-member witnesses and relevant contacts, including contact at a training course, were sufficiently unusual and particularised to warrant a full hearing on apparent bias. The issue was not finally determined at the preliminary hearing.

2. It was appropriate and proportionate to decide the substantive grounds at the same hearing. If the apparent-bias challenge succeeded, the likely consequence would be that the whole Employment Tribunal judgment was set aside and the case reheard.

3. The Tribunal had correctly directed itself that the statutory defence relating to victimisation and unjustifiable discipline required allegations to be false and made in bad faith. Although falsity and bad faith had not been pleaded, the matters had arisen in evidence, were live before the Tribunal, and the parties had notice and an opportunity to make submissions. The findings were fact-sensitive findings open to the Tribunal.

4. The finding that the individual officers acted in their personal capacities, rather than as agents of the union, was a finding of fact supported by material available to the Tribunal.

5. The Tribunal had correctly addressed the different statutory limitation regimes and was entitled to refuse extensions of time. Its conclusions were factual matters and disclosed no error.

6. The complaints of perversity and inadequate reasons failed. The Tribunal had produced a comprehensive judgment and had material on which to resolve the disputed issues.

7. The substantive grounds and the application for permission to appeal were dismissed. The apparent-bias allegations proceeded to a full hearing, with further case-management directions and an indication that conciliation should be attempted.

• Employment Appeal Tribunal: At a preliminary hearing, the Tribunal dismissed the substantive challenges to the Employment Tribunal’s judgment but directed that the apparent-bias allegations proceed to a full hearing.
• Employment Tribunal, London Central: Dismissed the claimant’s claims of race discrimination, victimisation and unjustifiable discipline.