Bhardwaj v FDA & Ors

At a preliminary hearing, an appearance of bias may be reasonably arguable where lay members of an Employment Tribunal have relevant personal or professional contact with parties who are themselves lay members. That issue should proceed to a full hearing where the circumstances require detailed examination.

Other appellate complaints require a demonstrable error of law. A tribunal may determine falsity and bad faith arising from the evidence, even where those matters were not pleaded, if they were live, the parties understood the issues, and had an opportunity to address them. Findings on agency, limitation, perversity and adequacy of reasons are ordinarily matters for the tribunal where supported by evidence and adequate reasons.

The Claimant appealed against a lengthy Employment Tribunal judgment dismissing claims of race discrimination, victimisation and unjustifiable discipline against her trade union and its officers. She also challenged the refusal of a review.

The appeals raised procedural allegations of apparent bias because three Respondents had been appointed as lay members of Employment Tribunals, as well as substantive challenges concerning falsity and bad faith, agency, limitation, perversity and reasons.

The Employment Appeal Tribunal considered the substantive grounds at a preliminary hearing because a successful apparent-bias challenge would probably result in the judgment being set aside and the matter reheard. The central issue was whether the apparent-bias allegations were reasonably arguable and, subject to that, whether the substantive grounds disclosed any appealable error.

1. Apparent bias. The unusual circumstances, including the appointment of three individual Respondents as lay members and their contacts with other lay members involved in the proceedings, made it reasonably arguable that the Employment Tribunal gave rise to an appearance of bias. The issue required a full hearing. If established, the likely consequence would be that the whole judgment was set aside and the claims reheard, probably in another region.
2. Falsity and bad faith. The Employment Tribunal had correctly directed itself that the statutory defence required allegations to be false and made in bad faith. Although those matters had not been pleaded, they had arisen in the evidence, were live before the tribunal, and the parties had been given an opportunity to make submissions. The findings were fact-sensitive findings open to the tribunal and disclosed no error of law.
3. Agency. The tribunal was entitled to find that the individual officers had acted in their personal capacities rather than as agents of the union. That was a factual conclusion supported by its assessment of why and for whom they had acted.
4. Time limits. The tribunal had directed itself correctly on the different statutory time limits and the applicable extension jurisdictions. Its conclusions that the claims were out of time and that neither a just and equitable extension nor an extension based on reasonable practicability was justified were factual conclusions open to it.
5. Perversity and reasons. The judgment contained adequate reasons and there was material on which the tribunal could decide the disputes. The complaints of perversity and inadequate reasons therefore failed. Permission to appeal on those matters was refused. The substantive grounds would not proceed, but the apparent-bias allegations would proceed to a full hearing.

• Employment Tribunal: Dismissed the Claimant’s claims of race discrimination, victimisation and unjustifiable discipline, and refused a review.
• Employment Appeal Tribunal: At a preliminary hearing, dismissed the substantive grounds but held that the apparent-bias allegations were reasonably arguable and should proceed to a full hearing.