Bhardwaj v FDA & Ors (Practice and Procedure : Review)

A review application does not permit the Employment Appeal Tribunal to revisit conclusions properly challengeable only by appeal. In assessing apparent bias, the tribunal must consider all relevant circumstances and ask whether a fair-minded and informed observer would conclude that there was a real possibility of bias.

Improper or partisan conduct by a regional employment judge during the subsequent appeal process may give rise to serious concern. It will not, however, establish apparent bias in an earlier hearing before a differently chaired Employment Tribunal unless it could realistically have infected that tribunal’s process. Later-discovered material which does not add materially to the earlier appearance of bias does not invalidate a binding waiver.

The Appellant’s discrimination and disciplinary claims against her union and its officials had been dismissed by an Employment Tribunal in September 2010. Her subsequent appeal, alleging apparent bias and procedural irregularity, was dismissed by the Employment Appeal Tribunal on 1 November 2012.

After obtaining further correspondence through information requests, the Appellant obtained an extension of time to seek review. The material showed that Regional Employment Judge Potter had sought to comment on appeal evidence and had asked that her letter not then be disclosed to the parties. The central issue was whether that later conduct altered the apparent-bias analysis concerning the earlier Tribunal hearing or invalidated the Appellant’s waiver.

1. Review application refused. The Tribunal would not use review to reconsider its earlier conclusions on waiver of the apparent bias arising from Ms Crighton’s position, or on the effect of the brief training-day contact involving Mr Carter. Those were matters for an appeal from the original decision.

2. The applicable test for apparent bias was whether a fair-minded and informed observer, having considered all relevant facts, would conclude that there was a real possibility that the tribunal was biased. That test, drawn from Magill v Weeks [2001] UKHL 67, required consideration of the additional material.

3. REJ Potter had acted unwisely in becoming involved in the appeal. Her advice to a potential witness, her wish to comment on appeal evidence, and her request that the intervention not be disclosed could lead an observer to regard her as having developed a personal and partisan stake in the appeal. There was no permissible arrangement by which regional employment judges could make undisclosed substantive representations to the EAT about appeals from their regions.

4. Those concerns concerned the appeal stage. A fair-minded and informed observer would not regard them as creating a real possibility that they had infected the earlier Employment Tribunal, which was chaired by a different employment judge. The additional material neither added materially to the earlier appearance of bias arising from Ms Crighton’s position nor affected the conclusion that the training-day incident did not give rise to apparent bias.

5. The Appellant’s waiver of the apparent bias concerning Ms Crighton therefore remained binding, and there was no basis to review the prior dismissal of the appeals.

• Employment Appeal Tribunal: The Tribunal refused review of its decision of 1 November 2012 dismissing the Appellant’s appeal on apparent bias and procedural-irregularity grounds.
• Employment Tribunal: The Appellant’s claims were dismissed by a reserved decision dated 17 September 2010.