Tuesday 6 November 2012

Apparent Bias

[Thanks to Laurie Anstis of Boyes Turner who is standing in for Daniel Barnett.  Thanks also to Simon McCrossan Squatter, New Walk Chambers for preparing this case summary]
Can an employment tribunal remain effective and lawfully constituted despite the revelation of circumstances which may have required members to recuse themselves on the grounds of 'apparent bias'?

Yes says the EAT in Bhardwaj v FDA.

In dismissing the appeal, it was held that the Appellant had been legally advised, informed of the material facts and afforded an appropriate period of time in which to make a free and unpressured decision. Therefore, by agreeing to continue (a position supported by the Respondent) and failing to make an application for recusal, the EAT ruled that the Appellant had waived her right to make such an application in future, which she could not go back upon.

The Appellant's claims of 'apparent bias' concerned the appointment of two Respondents to her claim as members of the employment tribunal. The two Respondents were offered appointments prior to the commencement of the hearing and these were confirmed after the hearing had begun.  It was agreed that they would not sit until the current proceedings were resolved, but one of the Respondents fortuitously and momentarily came into contact with one of the lay members of the tribunal at a training event for employment tribunal members, which occurred when the hearing (although ongoing) had been adjourned.

Whilst the Appellant complained that she had continued following disclosure of the above due to the financial pressures of self-funding, the EAT ruled that this did not prevent her waiver being free and fully informed notably by her counsel who himself sat as a part-time employment judge.

1 comment:

Mark Benney said...

Interesting stuff. I recently asked for details of the relationship between an EAT Judge and a former chambers colleague - who had been counsel for my opponents in the case in question - to enable me to decide whether to allege apparent bias. The response of the Deputy Registrar was, "I take the view that it is not appropriate that a judge is asked such a question, and I decline to do so". She went on, "If Judge [ ] had considered that any conflict of interest existed then he would not have sifted the appeal". I had to cite all the law on apparent bias before I got an answer that satisfied me.