Bhardwa v FDA & Ors

A waiver of apparent bias is valid only where the party knows the material facts, understands the consequences, and has a fair opportunity to decide without pressure. Where the issue emerges after the hearing has begun, the tribunal ordinarily need disclose what it then knows; it need not investigate every possible detail. The party may request further information. Apparent bias is assessed objectively by a fair-minded and informed observer. Brief inadvertent contact between a tribunal member and a party at a professional event does not itself establish a real possibility of bias where there is no case discussion and the member promptly distances himself. A clear waiver is irrevocable.

The appellant brought claims for race discrimination, victimisation and unjustifiable union discipline against her union and five individuals. The Employment Tribunal dismissed the claims and refused a review. During the hearing, two respondent officers were appointed as lay Employment Tribunal members. One was appointed to London Central, creating an accepted apparent-bias issue. A London Central tribunal member later had brief contact with the other respondent, who was appointed to London South, at a training event.

The Employment Appeal Tribunal dismissed appeals against the judgment and refusal of review, holding that the appellant had validly waived objection to the first issue and that the later contact did not establish apparent bias: UKEAT/0157/11/ZT. The central issues before the Court of Appeal were the scope of disclosure required for waiver during an ongoing hearing, the effect of the training-day contact, and whether the tribunal had a separate duty to recuse itself.

The appeal was unanimously dismissed.

1. Waiver and the Crighton appointment. The appointment of a respondent as a London Central lay member gave rise to a real possibility of apparent bias. A party could object or waive the objection. A valid waiver had to be clear and unequivocal, made with knowledge of the material facts, awareness of the consequences of the choice, and a fair opportunity to decide without pressure. Once validly made, it was irrevocable.
2. Disclosure during an ongoing hearing. The duty of inquiry applicable where a judge identifies a possible conflict before a hearing begins did not apply in the same way where the issue emerged after the hearing had commenced. Under Locabail [2000] QB 451, it was sufficient to disclose what the tribunal then knew. The tribunal was not required to fill gaps in its knowledge or provide every detail. The essential facts were disclosed: the appointment, the London Central allocation, and the arrangement that the appointee could train but not sit while the proceedings continued. The appellant could have requested further information. Her decision was found to be free and unpressured, so the waiver was valid.
3. The Carter and Whiteman incident. The governing question was whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias, applying Porter v Magill [2001] UKHL 67. The observer would adopt a balanced approach, as explained in Lawal v Northern Spirit Ltd [2003] UKHL 35 and Helow v Secretary of State for the Home Department [2008] UKHL 62. The brief greeting involved no discussion of the case. Mr Carter immediately avoided further contact and sought guidance. The incident therefore did not establish apparent bias.
4. Procedural issue. Following disclosure, all parties agreed that the tribunal should continue. There was no separate decision for the tribunal to make of its own motion, and the procedural complaint failed.

Lady Justice Arden concurred and observed that the Employment Tribunals might consider clearer procedures and public guidance for similar circumstances.

• Court of Appeal (Civil Division): dismissed the appeal against the Employment Appeal Tribunal’s decision: [2016] EWCA Civ 800.
• Employment Appeal Tribunal: dismissed the appeals against the Employment Tribunal’s substantive judgment and refusal of review: UKEAT/0157/11/ZT.
• London Central Employment Tribunal: dismissed the claims on 17 September 2010 and refused a review on 11 November 2010.