Bhardwaj v FDA & Ors

Permission to appeal may be granted where an appeal raises a point of general importance that merits consideration by the full appellate court, including where guidance may be needed for employment tribunals and those administering the tribunal system. A challenge to the validity of waiver may also be arguable when assessed cumulatively in light of delayed disclosure, incomplete information, pressure to continue, financial exposure and other relevant circumstances. Granting permission does not determine the merits of the apparent-bias or waiver issues.

The applicant sought permission to appeal from an Employment Appeal Tribunal decision dated 1 November 2012. The proposed appeal concerned whether circumstances at the employment tribunal stage gave rise to apparent bias and whether the applicant had waived an available objection to the tribunal proceeding.

The Employment Appeal Tribunal had expressed an obiter view that apparent bias was present and had concluded that the objection had been waived. The Court of Appeal considered whether the proposed grounds were sufficiently arguable and raised issues of general importance warranting consideration by the full court.

1. Permission granted. Sir David Keene considered that the circumstances raised a point of general importance concerning how employment tribunals, regional employment judges and those administering the tribunal system should proceed when a litigant or witness is appointed as a lay member of employment tribunals. The issue merited consideration and possible guidance by the Court of Appeal.
2. The applicant also advanced a sufficiently arguable challenge to the conclusion that she had waived an available objection. The assessment was cumulative. Relevant matters included the late disclosure of the apparent-bias issue, the applicant’s lack of knowledge of all material facts, the pressure created by the advanced stage of the hearing and the costs already incurred, the absence of information about transferring the case to another tribunal, and the possible risk of a wasted costs order.
3. The court was also attracted by the argument that the relationship between a respondent appointed as a lay tribunal member and a member of the hearing panel raised a separate collegiality issue. The absence of discussion between them and their apparent proper conduct did not necessarily dispose of the relevance of that relationship to bias or waiver.
4. The court did not determine the merits of either issue. It granted permission without limiting the grounds that might be advanced. The full appeal was to be heard by three Lords Justices, or by two Lords Justices and a High Court judge, with one judge having experience of sitting in the Employment Appeal Tribunal. The application was granted.

• Court of Appeal (Civil Division): permission to appeal granted from the Employment Appeal Tribunal decision handed down on 1 November 2012. No citation for the appealed decision was stated in the judgment.