In Bhardwaj v First Division Association and others, UKEAT/ 0157 & 0158/11/2T, Judgment on 1 November 2012, the EAT (Wilkie J presiding) held that, although one of the circumstances complained of may have required the ET members to have recused themselves on grounds of “apparent bias”, had such an application been made, in fact, the agreement of the parties, including the Appellant, that the hearing should continue, notwithstanding the revelation of those circumstances, was effective to act as a waiver of any such “apparent bias” and so the hearing of the claims by the ET, as then constituted, was lawful and effective.
The apparent bias ground concerned the fact that two of the Respondents to the Appellant’s claim, C and W, had been offered appointments as members of the ET shortly before the hearing began and were appointed as members after the hearing had begun. In addition, W had some contact with one of the Lay Members of the ET in the context of training for ET members on a date when the hearing, though continuing, was adjourned.
The Appellant was employed by the CPS. She is a member of the First Division Association (FDA). She began discrimination proceedings against the CPS which the FDA declined to support. That claim was settled. She then began proceedings against the FDA for its lack of support in her case against the CPS. Those were settled. Later she became a Trade Union representative with FDA. Her relationship with FDA representatives in the London branch deteriorated. There came a time when the Appellant was suspended from the London branch. She then issued proceedings against the FDA for racial discrimination and unjustified discipline. Those proceedings were also issued against C and W, being London Branch Members, as well as two other officials of the Union. Other proceedings were commenced against the FDA and a National Officer. All the Appellant’s claims were dismissed by the ET.
Wilkie J stated (para 33) that the modern approach to the issue of apparent bias was stated in re Medicaments (No 2) [2001] 1WLR 700 CA and approved in Porter v Magill [2001] UKHL 67, [2002] 2 AC 357 HL in the following terms: “The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”. Wilkie J observed (para 34) that in the employment law context and in the context of a party or representative also being a part time member or chairman of an ET or EAT, the same approach has been affirmed in Lawal v Northern Spirit [2003] ICR 856 HL; and (para 35) that the Court must ascertain all the circumstances having a bearing on the suggestion that the ET was biased and then ask whether those circumstances would lead a fair minded and informed observer that there was a real possibility that the ET was biased.
However, as Wilkie J remarked (para 39) a party can waive an objection to the possibility of bias where he or she is aware of all the material facts and of the consequences of the choice offered to him and where he or she has been given a clear opportunity to reach an unpressured decision.
The EAT concluded:-
“45. In our judgment, the crucial issue on this aspect of the case is the fact that, whether in training or as a member subsequently sitting, a lay member within one of the regions may reasonably expect to sit with any of the other lay members appointed to that region. In those circumstances the lay members sitting on an ET could reasonably be expected to have a different attitude towards a person, with whom they might expect to sit as a colleague in future, when considering their credibility or the quality of their conduct. This was the case in respect of in the present case. In our judgment, a fair minded and informed observer, in these circumstances, would conclude that there was real possibility that the Tribunal members would treat such a person differently, even unconsciously, from the way they would treat somebody on the other side making allegations or criticisms. Accordingly, whilst without deciding the matter, as necessary to our decision, in our judgment, had the Appellant asked the Tribunal to recuse itself, it would have been right for it to have done so.
46. However, in our judgment, the Appellant waived her entitlement to ask the ET to recuse itself in circumstances where she cannot go back on that waiver.”