Bhardwaj v First Division Association (FDA) & Ors

A party may waive an objection based on apparent bias if, knowing the material circumstances and the consequences of the choice, the party has a clear and unpressured opportunity to decide whether to seek recusal. Financial concern about the cost of restarting a hearing does not, without more, invalidate a freely made waiver.

The applicable question is whether a fair-minded and informed observer would see a real possibility of bias. A respondent who may become a judicial colleague of tribunal members in the same region could create that appearance. However, a momentary and inadvertent contact with a respondent from another region, immediately terminated and involving no discussion of the case, does not do so.

The claimant appealed from the dismissal of her claims by the London Central Employment Tribunal, and from the refusal of her review application. Her remaining grounds alleged apparent bias and procedural irregularity.

Two respondents had been appointed as lay members of Employment Tribunals while the hearing was underway. One was appointed to the same regional tribunal as the panel. The parties were told of this and, after an adjournment for advice, agreed that the hearing should continue. A lay member of the panel later had brief accidental contact at training with another respondent, who was appointed in a different region.

The central issues were whether those matters gave rise to apparent bias despite the claimant's agreement to continue, and whether the Employment Judge had improperly acted without the lay members when addressing the issue.

1. Appeals dismissed. The claimant's challenge based on the appointment of Ms Crighton failed because she had waived any entitlement to seek recusal. The panel gave the parties time to consider the disclosed circumstances with their representatives. The claimant made a free and unpressured decision to continue, with sufficient information about Ms Crighton's appointment, training and inability to sit while the claim remained unresolved. Her concern about the expense of a fresh hearing did not prevent that waiver from being effective.
2. Applying the fair-minded and informed observer test stated in [2001] 1WLR 700CA and approved in [2001] UKHL 67, the EAT indicated that a recusal application concerning Ms Crighton ought otherwise to have succeeded. A lay member appointed to the same region may reasonably expect to sit with existing lay members. That prospective collegial relationship could cause an observer to perceive a real possibility that her credibility or conduct would be assessed differently. This conclusion was not necessary to the disposition because of the waiver.
3. The brief training-event encounter between Mr Carter and Mr Whiteman did not create apparent bias. The contact was fortuitous and momentary. Mr Carter immediately withdrew, avoided further contact, sought guidance, and there was no discussion of the case. Mr Whiteman was appointed in a different region, so there was no prospect that he and Mr Carter would sit together as judicial colleagues.
4. There was no procedural irregularity. The decision whether respondents could train or sit while litigation continued was an administrative management matter, not a decision of the hearing panel. The hearing panel, including both lay members, was informed of the circumstances and agreed to place them before the parties. Once both parties agreed to continue, no further judicial decision on continuation was required.

• Employment Appeal Tribunal: appeals against the dismissal of the claims and refusal of review were dismissed.
• Employment Tribunal, London Central: all of the claimant's claims were dismissed in a judgment promulgated on 17 September 2010. The Employment Judge later refused a review application.