Donovan v London Borough of Barking & Dagenham

A party may waive an objection based on apparent bias, including where the objection concerns a potentially automatic disqualification. The waiver must be clear and unequivocal, made with full knowledge of the material facts, and follow a considered opportunity to choose whether to proceed. Guidance on handling apparent-bias disclosures is not a mandatory checklist. A tribunal need not recite every suggested warning where the choice is obvious. An appeal to the Employment Appeal Tribunal lies only on an error of law, although perversity may qualify. A party cannot revive factual grounds abandoned or excluded below, or advance a new account of the disclosure in the Court of Appeal.

Olivia Donovan brought employment tribunal claims against the London Borough of Barking & Dagenham for discrimination, harassment and detriment following a protected disclosure. At the beginning of the five-day hearing, Employment Judge Jones disclosed that she was friends with the respondent’s in-house lawyer, Winston Brown, and had previously worked with him. After an adjournment to consider her options, Ms Donovan elected to proceed. The tribunal dismissed all her claims.

The Employment Appeal Tribunal excluded her original factual challenges and considered revised grounds alleging apparent bias and inadequate disclosure. His Honour Judge Burke QC dismissed her application and appeal. The Court of Appeal considered whether the disclosed relationship permitted an informed waiver, whether the guidance on apparent bias required further express warnings, and whether Ms Donovan could revive a different factual case or establish an Article 6 violation.

1. Permission refused. The renewed application had no realistic prospect of success. The Court of Appeal agreed with Elias LJ and refused permission to appeal.
2. In Locabail (UK) Ltd v Bayfield Properties Ltd and Another [2000] QB 451, the court recognised that an objection capable of automatic disqualification may nevertheless be waived. The waiver must be clear and unequivocal and made with full knowledge of the facts relevant to the decision. A valid waiver ends the objection, so the party cannot later challenge the tribunal’s constitution after losing.
3. Jones v DAS Legal Expenses Insurance Co Ltd [2003] EWCA Civ 1071 gave guidance on dealing with apparent-bias disclosures, but expressly did not create a mandatory or definitive checklist. The tribunal disclosed the relevant relationship, adjourned to allow consideration of the options, and made clear that the choice was whether to continue with that tribunal or seek a fresh listing. It was therefore obvious that proceeding would prevent a later objection on the same ground. The tribunal was not required to state expressly that the right to object might be lost, to use the language of recusal, or to reassure the claimant that an objection would not be resented.
4. The appeal jurisdiction of the EAT is confined by section 21 of the Employment Tribunals Act 1996 to errors of law. A perverse finding may constitute an error of law, but Ms Donovan’s factual challenges had been ruled out and were abandoned when she filed revised grounds. She could not revive them in the Court of Appeal or substitute a new assertion that she had misunderstood the disclosure.
5. Article 6 of the European Convention on Human Rights required a fair hearing, but the disclosed connection, considered election to proceed, and effective waiver made the hearing fair and Convention-compliant. No separate human-rights ground arose.

• Court of Appeal (Civil Division) — [2012] EWCA Civ 1375: renewed application for permission to appeal refused on 26 October 2012.
• Employment Appeal Tribunal — His Honour Judge Jeffrey Burke QC dismissed Ms Donovan’s application and appeal on 29 March 2012. Earlier paper-sift decisions excluded the original factual grounds and required the revised apparent-bias case to be considered.
• Employment Tribunal — all discrimination, harassment and protected-disclosure detriment claims were dismissed. Written reasons were sent on 7 April 2011 and amended on 18 August 2011.