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||Neutral Citation Number:  EWCA Civ 800
||Case No: A2/2012/3045
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Mr Justice Wilkie, Mr I. Ezekiel and Dr K. Mohanty JP
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE ARDEN
LORD JUSTICE JACKSON
SIR COLIN RIMER
|| UMA BHARDWAJ
||- and -
(2) ANN CRIGHTON
(3) STUART SAMPSON
(4) PAULA O'TOOLE
(5) PAUL WHITEMAN
(6) SUE GETHIN
Mary O'Rourke QC and Nicola Newbegin (instructed by Gunnercooke LLP) for the Appellant
Mohinderpal Sethi (instructed by Slater and Gordon Lawyers) for the Respondents
Hearing date: 6 July 2016
HTML VERSION OF JUDGMENT
Crown Copyright ©
Sir Colin Rimer:
- The appellant is Uma Bhardwaj. With the permission of Sir David Keene granted on a renewed oral application on 21 April 2015, she appeals against an order of the Employment Appeal Tribunal ('EAT') dated 1 November 2012 dismissing her appeal against a judgment of the London Central Employment Tribunal ('ET') dated 17 September 2010 and sent, with written reasons, to the parties on 23 September. By the same order, the EAT also dismissed Ms Bhardwaj's appeal against the ET's decision of 11 November 2010 refusing to review that judgment. There is no appeal against that part of the EAT's order.
- By its judgment, the ET dismissed claims for race discrimination, victimisation and unjustifiable union discipline that Ms Bhardwaj had brought against the six respondents to the appeal: (i) the FDA, her union; (ii) Ann Crighton, an FDA London branch officer; (iii) Stuart Sampson, an FDA London branch officer; (iv) Paula O'Toole, another FDA London branch officer; (v) Paul Whiteman, an FDA national official; and (vi) Sue Gethin, an FDA national officer. Ms Bhardwaj's appeal to the EAT was on the ground that the ET's decision was affected by apparent bias.
- The assertions of bias arose because two of the respondents, Ms Crighton and Mr Whiteman, had been offered appointments as lay members of Employment Tribunals shortly before the hearing of Ms Bhardwaj's claim before the ET began and were both appointed as members shortly after it had begun. The ET only learnt of the appointments during the hearing, following which (on 23 March 2010, day 10 of the evidence) it disclosed them to the parties.
- As regards Mr Whiteman, no bias issue arose at that point. He had been appointed a member of the London South region ('London South'); and, as the ET was a London Central one, it is agreed that his appointment to a different region did not give rise to any question of bias. Ms Crighton, however, had been appointed as a London Central member and it is equally agreed that, when that became known, it was a factor giving rise to an inference of apparent bias by the ET in its disposal of the case.
- In the event, following the disclosure of Ms Crighton's appointment, Ms Bhardwaj and the other parties agreed that the ET should continue to hear the case. When, however, the ET then dismissed Ms Bhardwaj's claims, one ground on which she challenged its decision was that it had been apparently biased by reason of the Crighton factor and that her admitted assent to the continued hearing had not validly waived her right so to contend. The question for the EAT was whether she had validly waived it. The EAT held she had.
- There was also a further element of Ms Bhardwaj's bias assertions, one that this time did involve Mr Whiteman. That arose out of an incident on 14 June 2010, during a time when the ET hearing was adjourned part heard. By an unfortunate turn of events, Mr Carter, a London Central lay wing member of the ET, attended a London South training day at which Mr Whiteman was present. The evidence was that Mr Carter's contact with Mr Whiteman extended to no more than a civil greeting and that when, immediately afterwards, he learned that Mr Whiteman was a respondent in the case, he deliberately avoided all further contact with him. The ET disclosed the Carter/Whiteman incident to the parties when the hearing resumed on 6 July 2010. No objection was raised by Ms Bhardwaj or any other party that it infected the ET with apparent bias and the hearing proceeded to its conclusion. Ms Bhardwaj's subsequent bias challenge to the ET's judgment was based on this incident too. The issue here was whether the Carter/Whiteman incident gave rise to a real possibility of bias by the ET. The EAT held it did not.
- The correctness or otherwise of the EAT's conclusions in those two respects has been the subject of Ms Bhardwaj's appeal. I express my gratitude for the submissions advanced by Ms O'Rourke QC and Ms Newbegin (neither of whom appeared before the EAT or the ET) for Ms Bhardwaj, and by Mr Sethi (who appeared before both the EAT and the ET) for the respondents. I add that Ms Bhardwaj also has pending a permission application for an appeal against the EAT's dismissal of her proposed appeal to it against certain of the ET's substantive conclusions in her case but that application has been stayed pending the outcome of this appeal.
- Ms Bhardwaj is a barrister, called in 1985. From 2005 to 2011, she was employed by the Crown Prosecution Service ('CPS') as a Crown Prosecutor. In December 2005, she began discrimination proceedings against the CPS, which the FDA, her union, declined to support. In January 2007, she settled that claim. In June 2007, she began further tribunal proceedings against the FDA complaining of its lack of support in her previous claim. In January 2008, she settled that claim too.
- On 8 December 2008, Ms Bhardwaj issued a claim in London South against the first five respondents for alleged direct race discrimination, victimisation and unjustifiable union discipline. One of the five, Ms Crighton, shortly afterwards, on 5 January 2009, applied to the Judicial Appointments Commission ('JAC') for appointment as a lay member of Employment Tribunals. On 7 January 2009, she informed the JAC that she was a respondent to a race discrimination complaint.
- Another of the five, Ms O'Toole, was already a lay member of London South, the region in which Ms Bhardwaj had started her proceedings. Regional Employment Judge ('EJ') Hildebrand was aware that Ms O'Toole was a respondent and in February 2009, without reference to the parties, he transferred the proceedings to London Central. His action reflected his recognition that for a London South tribunal to hear a claim against a London South lay member would present the tribunal with a conflict giving rise to a perception of bias, but that a London Central tribunal would not be similarly embarrassed. That is because there would ordinarily be no prospect of London Central members sitting with members from a different region.
- On 11 March 2009, the JAC informed Ms Crighton that it could not take her application forward.
- On 20 March 2009, at a Case Management Discussion at London Central, Ms Bhardwaj's case was listed for hearing on 28 September 2009.
- On 12 June 2009, Ms Bhardwaj started a second tribunal claim against the FDA, to which Ms Gethin, the sixth respondent listed above, was also a respondent. The hearing fixed for September was vacated. On 8 September 2009, Ms Bhardwaj's two sets of proceedings were consolidated and a hearing was listed for 5 March 2010.
- In September 2009, there was a further competition for lay members of Employment Tribunals. On 15 September, Ms Crighton re-applied for appointment. On 18 September, Mr Whiteman also applied to the JAC for appointment. The EAT's finding in relation to the applications was that neither applicant 'appears to have informed the JAC that they were currently Respondents in race discrimination proceedings before the ET.'
- On 26 February 2010, the Ministry of Justice ('MoJ') wrote: (i) to Ms Crighton, offering her an appointment as a lay member at London Central (where Ms Bhardwaj's proceedings were pending); and (ii) to Mr Whiteman, offering him an appointment as a lay member at London South (whence her proceedings had been transferred by EJ Hildebrand).
- The hearing of Ms Bhardwaj's case started on Friday 5 March 2010 before a London Central ET chaired by EJ Tayler, who was sitting with two lay members, Ms McIntosh and Mr Carter. The hearing was destined to occupy 25 days (including six days of reading and deliberation by the ET), which was materially longer than the original estimate. The parties were represented by counsel: Mr Sutton for Ms Bhardwaj; Mr Sethi for the FDA, Mr Whiteman and Ms Gethin; Ms Mayhew for Ms Crighton, Mr Sampson and Ms O'Toole. Mr Sutton is an employment law specialist and also a part-time chairman of employment tribunals in the Bristol region. Friday 5 March was a reading day, as was Monday 8 March. Over the weekend, on Saturday 6 March, Ms Crighton wrote to the MoJ accepting its offer of appointment as a London Central lay member. She did not disclose her acceptance of the offer to the ET.
- The hearing of evidence started on Tuesday 9 March. Friday 12 March was day 4 of the evidence. On that day, the MoJ wrote to Ms Crighton confirming her appointment. On 15 March, the Employment Tribunals President, Judge Latham, wrote to her with his congratulations and confirmed the arrangements for observations and training courses. He asked her to contact Regional EJ Potter to arrange her observation days, one or two of which should be completed before the first induction course for new lay members that she was required to attend, which was on 24 March.
- Tuesday 16 March was day 5 of the evidence. Ms Crighton replied to the President's letter, referring to his confirmation about the induction course. She said she was 'writing in connection with my application form submitted on 5th January'. I do not know to what that referred: she had not at that date yet been offered the appointment. She also informed him that she and two other FDA officers were 'currently involved in an ET claim by another Union representative' and gave the case number of Ms Bhardwaj's case. She did not explain the nature of the claim but did say that '[t]he allegation is denied by the Union itself and all four named individuals including myself.'
- On the same day, Mr Whiteman emailed the MoJ informing it that he had accepted the appointment offer – and that he was a respondent in tribunal proceedings at London Central, giving the case number. The MoJ replied on the same day, saying there was no need to alert anyone as the case was proceeding in a region other than that to which he had been appointed. That advice chimed with EJ Hildebrand's view about the potential for apparent bias when he had earlier transferred Ms Bhardwaj's case from London South to London Central (see  above).
- Friday 19 March was day 8 of the evidence. Regional EJ Potter sent EJ Tayler (who was chairing Ms Bhardwaj's hearing) a copy of Ms Crighton's letter of 16 March to the President, which EJ Potter had received on 18 March. EJ Tayler received the copy on the same day, 19 March, as he explained in his statement of 21 March 2011 provided to the EAT at its request in response to Ms Bhardwaj's allegations of bias. He said in it that '[b]efore I raised it with the parties I ascertained how the matter would be addressed. Having done so, I raised the matter with the parties, at the first opportunity …', which turned out to be the following Tuesday 23 March.
- Tuesday 23 March was day 10 of the evidence and Ms Crighton was due to start giving her evidence. The ET's reasons for their 17 September judgment described as follows the material events of that day:
'12.3 On 23 March, having recently been made aware of the fact, we raised with the parties the fact that Ann Crighton and Paul Whiteman had recently been appointed as Members of the Employment Tribunal, Ms Crighton to sit in London Central and Mr Whiteman at London South. It had been agreed by the President that they could continue with their training, but that they would not sit while the claim was ongoing at London Central. The parties were already aware that Paula O'Toole is appointed as a Member in London South. It was agreed that this should not prevent us from hearing the matter.'
- A paralegal in the respondents' team made the following note of that disclosure ('ET' is EJ Tayler; 'AM' is Ms Mayhew (counsel for Ms Crighton, Mr Sampson and Ms O'Toole);'MK' is Mr Sutton (counsel for Ms Bhardwaj):
ET: discussion re PW [Mr Whiteman] and AC [Ms Crighton] being appointed to sit on London ET. PW and AC will be able to sit in on induction but not sit until this matter is resolved. It is unfortunate that it has arisen at exactly this moment.
AM you may need to discuss the matter with her. It should not be anything that puts her off. If any concerns arise as to the order of witnesses it can be discussed.
MK thank you Sir.
MK We do not object to the ET continuing with the matter.'
- Ms Crighton started giving evidence on 23 March.
- Wednesday 24 March was day 11 of the evidence. The ET's judgment said this of the events of that day:
'12.5 On 24 March 2010, information having been received to this effect, we indicated that Guy Davies is a Member of the Employment Tribunal in Exeter. Mr Sutton, Counsel for [Ms Bhardwaj], sits in the Bristol Region (which includes Exeter) but had never sat with Mr Davies. We indicated that we had come to know that one of [Ms Bhardwaj's] witnesses Safina Haleema had been appointed as a Member in London Central. It was agreed that this should not prevent us from hearing the matter.'
That was also the day when Ms Crighton, Mr Whiteman and Ms Haleema attended their first training day, a multi-regional preliminary induction for new members. It was led by judges from the London regions, including London Central.
- Ms Crighton resumed her evidence on Thursday 25 March, day 12 of the evidence. On 26 March, the hearing was adjourned part-heard to 6 July.
- The following week, on 29 March, Mr Whiteman emailed EJ Hildebrand, the Regional judge for London South, following up a telephone call he had made the previous week. He asked what progress could be made about his being able to observe or sit on tribunals as a new member. He understood it was not possible for him to do so until Ms Bhardwaj's case was concluded. He informed EJ Hildebrand that the case had gone part heard and was due to resume on 6 July for a further eight days. He said that, although he understood the reasons for the immediate decision not to allow him to sit or observe at a time when the case was expected to end on 26 March, he was concerned that he would now fall behind the development of his peers because of the further delay. He indicated that, whilst he would not expect to be able to sit, he would be happy to undertake other training that might assist him. Also, if the view regarding observation changed as a result of the added delay, he would be happy to undertake that.
- On 6 April, EJ Hildebrand's reply via a secretary was that: 'I regret there is little if anything I can usefully do to assist until you can observe and be trained.' In the event, it appears that at some point prior to 14 June, a decision was taken to permit Mr Whiteman to attend a London South training event on that day. He had, as I have said, attended a training day on 24 March.
- On 8 April, the Employment Tribunals President transferred Ms Haleema's appointment from the London South to London Central (as appears from  above, the ET had understood by 24 March that she was a London Central appointee). She attended a London Central observation day on 12 April. She informed Regional EJ Potter that she had brought a case against the FDA, which was still part heard in London Central. On the following day there was a discussion involving Ms Haleema, the President and Regional EJ Potter. It was agreed that Ms Haleema could go ahead with her observations and should attend the members' regional training on 17 May, by when it was hoped that the decision in her case would be available (as it was, on 13 May).
- On 7 May, London Central Regional EJ Potter wrote to Ms Crighton. She understood that Ms Bhardwaj's case had gone part heard and would not conclude for some months. She said that, on that basis, the decision had been taken that Ms Crighton should not participate in London Central while the case was pending (including both carrying out observation days and attending regional training), although the President was content for her to be sworn in as a member. EJ Potter said they should agree to liaise on the way forward once the case was concluded. This was a change of approach: Ms Crighton had previously been allowed to train, but not to sit.
- On 14 June, Ms O'Toole and Mr Whiteman attended a London South training day. Mr Carter, one of the two London Central lay wing members hearing Ms Bhardwaj's case, was also there: that was because he had been unable to attend London Central's equivalent event. On 18 June, Mr Carter spoke about the events of that day on the telephone to London Central's Regional EJ Potter and also wrote to her as follows:
'… I have to inform you that on Monday 14th June 2010 attending members training at Croydon, whilst I was getting a coffee around 09.45 hours, I met Mr Paul Whiteman and we exchanged a good morning. He was about to say, when Ms Paula O'Toole interrupted him and said, you should not be talking to me. It then clicked that both are respondents to the above case. I immediately walked away and went to the welcome room for all assembled. Then I joined the groups, to which I discovered Mr Whiteman and I were in the same group. I immediately explained to Judge Freer I would not be able to join this group, to which I was allocated to Judge Anne Martin's group. After the group work, I explained to Judge Martin my predicament. We went to her office to try contacting the President and yourself. We then went to see Regional Judge Peter Hildebrand.
I sat out the next all assembled session in Judge Martin's office, until I was able to speak to you for advice and passed my phone to Judge Hildebrand to talk to you.
I then had a short lunch with all assembled and went for a walk outside, before I joined the next all assembled presentation. Then we went into the group work and then I left Croydon after 16.00 hours.
I can assure you from my part, that no prejudice occurred and I deliberately kept aloof from Mr Whiteman and Mrs O'Toole thereafter. I think they did the same.
But, you may feel it appropriate to draw attention of the above to President David Latham, Judge James Taylor [sic], the Claimant and Respondents for their information.'
- The parties to Ms Bharwaj's proceedings (apart from Ms O'Toole and Mr Whiteman) did not know of those events of 14 June until the hearing resumed before the ET on 6 July. EJ Tayler then informed them that Mr Carter had conversed with Mr Whiteman at a London South training day and that Ms O'Toole had intervened in the discussion to say that they should not be talking to each other. He had a copy of Mr Carter's letter of 18 June but did not show it to the parties. Ms Bhardwaj raised no objection to the ET continuing with the hearing. Mr Whiteman gave evidence on 8/9 July. I shall come later to a fuller account by EJ Tayler of the disclosure he made on 6 July.
- The evidence closed on 9 July. On 12 July, the ET considered written submissions and on 14 July it heard oral submissions. It then deliberated on the case over 15, 16, 19 July and 10 September.
The ET's judgment of 17 September 2010
- The ET's judgment was promulgated, with written reasons, on 17 September. The two line judgment dismissing Ms Bhardwaj's claims was followed by written reasons occupying 88 single-spaced pages comprising 518 paragraphs. They do not deal with any question of bias by the ET because that was not a case that Ms Bhardaj had advanced: she had, on 23 March, agreed to the ET hearing her case despite its apparent bias by reason of the Crighton factor; and, following the disclosure on 6 July of the Carter/Whiteman incident, she had raised no objection to its still continuing to hear it. I have in  above quoted paragraph 12.3 of the ET's reasons about the events of 23 March. The reasons made no reference to the disclosure of 6 July.
- Ms Bhardwaj presented her appeal to the EAT against the ET's judgment on 4 November.
Ms Bhardwaj's application for a review
- On 20 October, Ms Bhardwaj applied for a review of the judgment. Paragraph 8 of her case for a review asserted (in substance) that it was not until 23 March 2010 that she learned of Ms Crighton's and Mr Whiteman's applications to become employment tribunal members. She said '[n]either the [ET] nor the Respondents disclosed this information.' Her account of the ET's disclosure on 23 March was as follows:
'9. On the 23rd March 2009 [sic: should be 2010], the 12th day of the hearing, Employment Judge Tayler informed the parties that he had recently been informed that [Ms Crighton] and [Mr Whiteman] had recently been appointed members of the Employment Tribunal. [Ms Crighton] was to sit in London Central and [Mr Whiteman] was to sit in London South. [Ms Bhardwaj] has no recollection of the Judge saying that the President had agreed that they could undertake training whilst the claim was being heard. [Ms Bhardwaj's] legal advisers have no note of such a comment being made. [Ms Bhardwaj] after consultations with her legal advisers took no objection to the claim continuing to be heard by the Tribunal. A material consideration for [Ms Bhardwaj] was the costs which would be involved in a fresh hearing as [Ms Bhardwaj] was paying for the hearing herself and she believed it was in its final stages.'
- She said, in paragraph 10, that she believed and expected that the ET 'would take all reasonable and appropriate steps to ensure that no direct or indirect interaction took place between the 3 Respondent Tribunal members and those sitting on the Tribunal.' That assertion forms no part of her grounds of appeal to this court. As for the disclosure on 6 July 2010, she said:
'11. At the start of the adjourned hearing on 6th July 2010 the parties were informed that one of the Tribunal's members, Mr Carter, had conversed with [Mr Whiteman] at a training course in London South. The parties were also informed that [Ms O'Toole], had intervened in this discussion to inform Mr Carter and [Mr Whiteman] that they should not be talking to each other. [EJ Tayler] gave no further details or explanation about the incident. [Ms Bhardwaj] was dismayed and concerned that two Respondents and a Tribunal member had attended the same gathering and even more concerned by the interaction between them but believed she had no choice but to continue the hearing. Again, the material consideration was the costs that she had already incurred and would incur if the case was re-heard. [Ms Bhardwaj] discussed the matter briefly with her representatives and no objection was taken to the Tribunal continuing to hear the matter. …
25. [Ms Bhardwaj] was placed in an intolerable position when on the 6th July 2010, almost at the end of the trial, she was told about the contact between Mr Carter, the wing member, and [Ms O.Toole] and [Mr Whiteman]. [Ms Bhardwaj] could not afford to re-start the trial and had no option but to allow the hearing to continue in circumstances where there was at the very least the perception of potential bias. This was and must have been obvious to the Tribunal members at the time.'
- Ms Bhardwaj also made various points as to what she had discovered since the tribunal hearing, in part about advice given to Ms Haleema by the President of the Employment Tribunals. She said:
'13. On the 7th October 2010 [Ms Bhardwaj] became aware that another recently appointed Tribunal member of London Central, [Ms Haleema], had been advised by the President of the Employment Tribunals and the Regional Judge, Judge Potter, that she should not attend any training course in her area or region whilst she had an ongoing claim. [Ms Bhardwaj] also became aware that [Ms Haleema] had been advised that it would be inappropriate for her to attend any training courses whilst she had an ongoing case because of the perception of bias which would clearly exist.
14. [Ms Bhardwaj] was unaware of the President's direction to [Ms Haleema], not to attend any training courses in her area or region whilst she had an ongoing claim, on the 6th July 2010. Neither was [Ms Bhardwaj] aware of the protocol which appears to exist regarding the attendance of training courses whilst members are involved in ongoing cases.
15. [Ms Bhardwaj] is aggrieved that [Ms O'Toole] and [Mr Whiteman] were allowed to attend training courses whilst [Ms Haleema] had been advised that she could not do so in similar circumstances.
16. [Ms Bhardwaj] does not know whether [Ms Crighton] also continued to attend training courses and if so how many courses she attended whilst the claim was being heard.'
- Ms Bhardwaj also made some further, more general points. She complained that the ET had not been given advice as to the attendance at training courses by respondents who had been appointed lay members of the employment tribunals; that the ET ought to have been aware that members from London Central attend training courses in London South and vice versa; that there had been a lack of disclosure of relevant and significant evidence by the respondents and the ET; that she had believed she was entitled to expect the ET to take necessary steps to avoid contact between the respondents and the ET; that the ET's failure to do so resulted in inappropriate communication between one wing member of the ET and two of the respondents; that there had been material irregularities in the way her claim had been handled by the ET; and that she had not had a fair trial. These were wide-ranging complaints, but her appeals to the EAT and to this court were founded on much narrower grounds.
The ET's reasons dated 11 November 2010 for refusing a review
- The ET rejected the review application as being out of time. In his reasons for the ET, EJ Tayler referred to what the ET had said in paragraph 12.3 of its reasons of 17 September about the events of 23 March, confirmed its accuracy and added that 'We were informed that the matter had been given careful consideration'. He then said this (his paragraphs are not numbered, but I have numbered them for convenience):
'4. There is one matter that I did not refer to at paragraph 12. On 6 July 2010 I informed the parties that Mr Carter had attended a training day at London South Employment Tribunal. At paragraph 11 of the application for review [Ms Bhardwaj] suggests that I gave no details or explanation about the incident other than stating that there had been a discussion, and that Ms O'Toole had intervened to suggest that it should not continue. I do not accept that is an accurate reflection of what was said on 6 July 2010.
5. Mr Carter had been unable to attend a training day at London Central and so had attended a training day at London South. At the commencement of the day he had exchanged brief pleasantries with Mr Whiteman as another delegate, wishing him good morning. He did not, at that stage, appreciate that he was a Respondent to the case. Mr Whiteman had not yet given evidence. Mr Carter did not recognise him. It was at this stage that Ms O'Toole had come up and suggested that they should not be speaking because Mr Whiteman was a Respondent in this claim. The conversation ceased and they did not speak again.
6. I took considerable care to ascertain from Mr Carter whether there had been any discussion whatsoever about the case. He informed me that there had not. As there had been no discussion about the case I anticipated that the matter could not be a cause of any great concern. It was not significantly different to any situation in which there had been brief inadvertent contact between a member of the Tribunal and a party.
7. I explained the situation to the parties, particularly that there had been no discussion about the case. The parties raised no issue. The matter was dealt with relatively briefly. On a review of my notes I cannot find a note dealing with this particular exchange. This explains why, having reviewed my notes to produce the Judgement, I did not deal with it separately at paragraph 12, along with the other 11 interlocutory matters that arose in the course of the hearing.
8. If this matter had caused real concern to [Ms Bhardwaj] at the time it could have been raised with the Tribunal. If, for some reason, [Ms Bhardwaj] had not wished to mention it immediately, she could have raised it with her Counsel who could have returned to it at any stage prior to the completion of the hearing on 12 July 2010, in correspondence prior to Judgement or within 14 days thereafter. I do not see any reason why it would be just and equitable to extend time. …
9. The most significant issues are those of whether there was any discussion about the case and whether the conversation continued after Mr Carter had been made aware who Mr Whiteman was. I made it clear to the parties that this was not the case. I have checked this with the members of the tribunal who confirm my recollection. If there was any miscommunication at the hearing, I confirm it in this response.'
- On 20 December, Ms Bhardwaj presented her appeal to the EAT against the ET's refusal to review its judgment.
The EAT's judgment on the appeals
- Ms Bhardwaj's appeals against the ET's judgment of 17 September 2010 and its review refusal of 11 November 2010 were heard by the EAT on 27 September 2012 before a panel comprising Wilkie J, Mr I. Ezekiel and Dr K. Mohanty JP. The issues argued went essentially to whether the ET's judgment should be set aside on grounds of apparent bias, although a point of alleged procedural irregularity was also raised. Wilkie J's reserved judgment for the EAT dismissing the appeals was handed down on 1 November 2012.
- In a careful judgment, and after summarising the facts, Wilkie J referred to well-known authorities explaining the modern approach to whether a court or tribunal is affected by apparent bias. He turned to whether the emergence on 23 March 2010 of the fact that Ms Crighton was a newly appointed London Central lay member gave rise to a real possibility of bias by the ET. Wilkie J said that the EAT was not actually deciding that matter, although his judgment conveys that the EAT accepted that the Crighton factor did give rise to apparent bias. He said:
'45. … the crucial issue in 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 of Ms Crighton in the present case. In our judgment, a fair minded and informed observer, in these circumstances, would conclude that there was a 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 [Ms Bhardwaj] asked the Tribunal to recuse itself, it would have been right for it to have done so.'
- Wilkie J then, however, explained that Ms Bhardwaj had waived her entitlement to ask the ET to recuse itself and could not thereafter go back on that waiver. He said:
"'47. There is no doubt in our minds that [Ms Bhardwaj] reached a free and unpressured decision. It is clear from the notes of the hearing that some 15 minutes were taken to explain to the parties the circumstances as known to the Employment Judge and his members. [Ms Bhardwaj] was then given the better part of 2 hours to consider the issue with her legal advisers. Her representative, Mr Sutton, happened not only to be highly experienced and able as a representative but also had sat as a part time Employment Judge in tribunals in a different region, so he was well aware of the implications of training arrangements and the effect that attending such events might have on the collegiality of members. Thus, [Ms Bhardwaj] was in a position to have particularly expert advice and a substantial amount of time to consider her position. She, frankly, has said that the reason she decided to go ahead was because she was paying privately for the litigation and she had already invested a significant sum in the hearing as it had proceeded thus far. In our judgment that does not prevent her waiver having been a free and fully informed one."
48. The issue at the heart of the argument put by Ms Drew [counsel for Ms Bhardwaj] was the question whether [Ms Bhardwaj] was aware of all the material facts. She has argued in her skeleton argument that she did not know of the existence of the contents of the letter from Ms Crighton, she had no clear understanding about the training of new lay members and contact with existing members and she was not aware that Ms Crighton had been in direct contact with the President and the Regional EJ.
49. In our judgment [Ms Bhardwaj] was, in substance, as well informed of the circumstances of Ms Crighton as were the members of the ET. The Employment Judge, at paragraph 12.3 of the decision, set out what he knew; Ms Crighton had recently been appointed as a member of the Employment Tribunals to sit in London Central; the President had considered her case; she could continue with her training; but she would not sit whilst the claim was ongoing. In our judgment, as a matter of substance, [Ms Bhardwaj] was aware of all the underlying circumstances, concerning the involvement of a more senior Judge and how her ability to train and/or sit as a member was, at that time, to be dealt with whilst she was a Respondent in an outstanding case.
50. In our judgment, the ground of appeal which seeks to set aside [Ms Bhardwaj's] waiver of any apparent bias on the part of Ms Crighton must be dismissed.'
- It will be noted that the EAT was satisfied that EJ Tayler had disclosed 'what he knew' and it is implicit in its decision that he had been under no obligation first to make any wider inquiry as to background relating to the appointments of Ms Crighton and Mr Whiteman as lay members. Before this court, it was argued for Ms Bhardwaj that EJ Tayler should have made a wider inquiry.
- The EAT turned to consider Ms Bhardwaj's case insofar as it was founded on the ground that the Carter/Whiteman meeting at the training day on 14 June 2010 also gave rise to apparent bias. Wilkie J expressed the EAT's reasons for also rejecting that part of Ms Bhardwaj's case as follows:
'51. In our judgment, having read the letter of Mr Carter and the review decision, what happened by way of fortuitous brief contact between Mr Whiteman and Mr Carter at the London South training event is not such as to cause a fair-minded and informed observed to conclude that there was a real possibility that the Tribunal was biased.
52. It is clear from Mr Carter's own account that direct communication was fortuitous and momentary and, as soon as he became aware of the fact that Mr Whiteman was a Respondent in a case before an ET of which he was a member, he took immediate and effective steps to remove himself from any contact with him. Not only that, he took steps, and persisted in taking steps, to try to obtain guidance from those higher in the hierarchy and he actively removed himself from possible direct contact by removing himself from the same training group into which they were, fortuitously, placed. In addition he immediately informed his Regional Employment Judge, Judge Potter, what had transpired.
53. The position of Mr Whiteman was no different on the 18 June [sic: should probably be 14 June] than it had been on the 23 March. He was a Respondent before London Central ET, whilst he had been appointed a member of London South, from which the case had been transferred. In that sense he was in no different a position to Ms O'Toole. They were members of tribunals in the same region. There was no prospect of their sitting together as part of the same ET constitution alongside Mr Carter. Thus, there was no question of either Ms O'Toole or Mr Whiteman ever being judicial colleagues of Mr Carter in the prohibited sense. The risk of a fair minded perception of the possibility of unconscious bias, to which we have referred above in respect of Ms Crighton, which might be informed by the knowledge that the individual appearing before the tribunal might, at some time, sit on the same constitution as a current panel member, would not arise. The circumstances of the fortuitous meeting of Mr Carter and Mr Whiteman could not, in our judgment, form a basis for a perception of a real possibility of bias held by a fair minded and informed observer.
54. It follows that the question of waiver does not arise as, in our judgment, on this basis there was no apparent bias.'
- The EAT also dealt with a third ground advanced by Ms Bhardwaj in relation to the events of 23 March. Its essence was that, following the emergence of facts pointing to the potential for bias by the ET, the ET's decision to continue with the hearing was irregular. I must summarise what the EAT said about this ground since it was renewed in Ms Bhardwaj's grounds of appeal to this court although Ms O'Rourke did not develop it orally.
- The point was described by Wilkie J as a procedural ground. It arose because the EAT had sought explanations about the events of 23 March 2010 from the members of the ET, as a result of which one wing member, Ms McIntosh, wrote to the EAT on 25 March 2011, saying:
'We were aware of [Ms Crighton's] situation when she wrote to the President during the hearing to inform him. As you can imagine, her letter caused some concern. I was not involved in any discussion on procedure or protocol or the decision on how to continue, or not! A few days later EJ Tayler, in the Tribunal, asked if anyone else had anything to declare. This resulted in us being aware of the other appointments people held.'
- EJ Tayler, on 8 February 2012, wrote to the EAT responding to Ms McIntosh's letter, saying:
'There were two issues that arose in relation to Ms Crighton's letter of 16th March 2010, in which she referred to her appointment to sit as a member in London Central.
First, there was the issue of judicial management, for the President and/or Regional Employment Judge, of how to deal with Ms Crighton's position as a member.
Second, there was a Judicial issue, for the hearing panel, of how to deal with the proceedings, including the issue of whether they should continue.
It appears to me that Ms McIntosh's comments demonstrate her lack of involvement in the management issue, which was not for us.
The Judicial issue was dealt with by the panel. I explained to the members the situation that had arisen and agreed that we would inform the parties; and give them the opportunity to consider the matter and make representations.
I explained to the parties, in open hearing, the situation that had arisen and the management decision that had been taken at that stage (see paragraph 12.3 of the reasons), then asked for their submissions. There was an adjournment, after which the parties came back and stated that they wished us to continue with the hearing. In the light of the views of the parties, we proceeded.'
- The basis of the procedural ground was that it was said that Ms McIntosh's statement that she 'was not involved in any discussion or procedure or protocol or the decision on how to continue, or not!' meant that she had not participated in the ET's decision on 23 March 2010 to continue with the hearing following the parties' agreement that it should do so. It was said that such non-participation in the ET's decision rendered it irregular. The argument was based on the EAT's decision in Magenta Security Services v. Wilkinson  UKEAT/0385/06/1501. Magenta was not included in the authorities shown to us, but Wilkie J described it as supporting the proposition that once a full ET tribunal is engaged, it is a procedural irregularity for the Employment Judge to take case management decisions independently of the two lay members.
- The EAT rejected this ground on the basis that all the evidence showed that in fact the ET took no decision on whether or not to continue with the hearing following the disclosures on 23 March 2010. That was because whether or not the ET was to continue with the hearing was a matter it left to the parties; and as they were agreed that the hearing should continue, there was no decision for the ET to make. Wilkie J explained it more fully in  of his judgment, but the essence is as I have summarised it.
The appeal to this court
- I start with some general remarks. First, whilst there is no positive finding by the EAT that, when applying in September 2009 for appointment as lay members, Ms Crighton and Mr Whiteman did not disclose to the JAC that they were currently respondents in tribunal proceedings raising allegations of race discrimination against them, the EAT did find that it appeared that they had not done so. The current 'Professional conduct' section of the JAC 'Good Character Guidance' requires the making of such a disclosure. Whether that part of the Guidance was in the same form in September 2009 I know not, but of course Ms Crighton had known that it was the fact of the proceedings that had brought her earlier application to a full stop and so she ought to have been sensitive to the need to mention it on her renewed application. I should anyway have thought it obvious that a disclosure of the pending proceedings should have been made. If it is the case that, in their September 2009 applications, neither Ms Crighton nor Mr Whiteman notified the JAC that they were respondents to tribunal proceedings in which discrimination allegations were made against them, I would regard that as a surprising omission.
- That said, the appointments were made, following which Ms Crighton did disclose the proceedings to the President of the Employment Tribunals, as did Mr Whiteman to the MoJ. Neither disclosure resulted in a reaction suggesting that the appointments should not have been made pending the disposal of such proceedings although neither Ms Crighton nor Mr Whiteman was to be allowed to sit until they were.
- Second, it is accepted that, as regards Mr Whiteman, the ET's knowledge of his appointment as from 19 March 2010 was not a factor giving rise to a real possibility of bias by it. That is because its three London Central members would be unlikely ever to sit with Mr Whiteman, a London South member, a feature accepted as sufficient to dispel such possibility. That was also EJ Hildebrand's implicit view when, knowing that Ms O'Toole was a London South lay member, he transferred Ms Bhardwaj's case from London South to London Central. It was apparently also the MoJ's view judging by its response to Mr Whiteman's disclosure to it of the pending proceedings. It was no part of Ms Bhardwaj's appeal that the emergence of Mr Whiteman's position on 23 March gave rise to apparent bias by the ET.
- As regards Ms Crighton, the position was different. Whilst the EAT did not formally find that the ET's learning of her appointment as a London Central lay member gave rise to a real possibility of bias by the ET, in substance it did decide that (see Wilkie J's judgment, at ); and it then focused exclusively on the waiver issue. Before us the appeal was argued on the basis that, as regards the Crighton factor, this was a case of apparent bias and we too were presented only with arguments about waiver. I regard that as a correct recognition of the position. I accept that the emergence of the fact of Ms Crighton's appointment as a London Central lay member gave rise to a real possibility of bias on the part of the ET.
The Crighton issue
- Ms Bhardwaj therefore starts from the agreed position that on 23 March 2010 it was open to her (or to any other party) to object to the ET continuing to hear the case. It was also open to the parties to waive such objection. Any such waiver, if validly made, would be irrevocable. The heart of Ms O'Rourke's submission was that, contrary to the EAT's finding, Ms Bhardwaj's admitted waiver was invalid because the ET had failed to provide her with all the material facts necessary for the making of a valid waiver. That was the same argument that was unsuccessfully advanced to the EAT. The essence of Ms O'Rourke's submission was that the ET should, on 23 March, have made rather fuller disclosure of the circumstances relating to Ms Crighton than it did. Only if it had done so would Ms Bhardwaj have been in a position to make a properly informed decision as to whether or not to object to the ET continuing to hear her case.
- Paragraph 19 of Ms Bhardwaj's grounds of appeal lists her assertions as to the allegedly material facts and information she did not know and which she complains that the ET did not disclose or provide to her, but should have done, namely: (a) that Ms Crighton's appointment to London Central while proceedings were pending against her was in breach of normal practice; (b) the dates when Ms Crighton and Mr Whiteman had been respectively notified of, and had accepted, their appointments; or (c) that there had been a delay on the part of both respondents and the ET in informing Ms Bhardwaj of the appointments; (d) a sight of Ms Crighton's letter of 16 March 2010 to the President, of which the ET had a copy; (e) the fact of the training day on 24 March 2010, or what form it took; and (f) that the attendance at training by appointees during ongoing proceedings was/is considered inappropriate by the President and regional employment judges. Whilst these complaints included a reference in the grounds of appeal to Mr Whiteman, the criticism advanced by Ms O'Rourke in relation to the events of 23 March 2010 was confined to matters relating to Ms Crighton.
- It is clear that on 23 March 2010 EJ Tayler did not provide that information to the parties. There is, however, no evidence that he knew of the practice referred to in (a), or of the facts that would have enabled him to make the disclosure referred to in (b), or therefore, of the position raised by (c). It is also correct that he did not show the parties a copy of Ms Crighton's letter of 16 March 2010, but he sufficiently relayed its substance (that she was a newly appointed lay member who was also a respondent to Ms Bhardwaj's proceedings) and so his omission to do so cannot have been a relevant shortcoming, if it was a shortcoming at all. There is no evidence as to what EJ Tayler knew about the training day on 24 March 2010, or as to what form it was to take. He informed the parties that the President had agreed that, whilst the two respondents could not sit pending the disposal of the Bhardwaj claim, they could both continue with their training. The giving of that information by EJ Tayler was questioned by Ms Bhardwaj in paragraph 9 of her review application to the ET, but the EAT accepted that EJ Tayler did give it and it was therefore not open to Ms Bhardwaj on this appeal (which lies only on a question of law) to question that finding by the EAT, nor did she. One of Ms Bhardwaj's earlier complaints about EJ Tayler was that he had not informed her of, or enforced, the 'apparent protocol which prohibited the attendance at training when members were involved in existing claims', in response to which EJ Tayler explained in his statement to the EAT of 21 March 2011 that he 'was not aware of such a protocol as I do not arrange the training of members'. There is no evidence as to EJ Tayler's knowledge or understanding on 23 March 2010 of the matter referred to in (f), although his statement just referred to would suggest that he did not know about it.
- Ms O'Rourke's position is, however, that it matters not that EJ Tayler did not have all this information when he made the disclosure on 23 March 2010. If he did not, she said that it was his duty to make inquiries so as to put himself in a position where he had all such information, which he would then be able to disclose to the parties. This submission was, somewhat faintly, coupled with a complaint that EJ Tayler had also wrongly failed to make the full disclosure required of him earlier than 23 March, which may perhaps be regarded as having expected rather a lot of him. The submission also appeared to proceed upon the basis that there was no duty of inquiry by Ms Bhardwaj as to matters disclosed about which she considered she needed further information. If, for example, she had regarded it as important to her decision-making process to know precisely when Ms Crighton's appointment had been offered and/or accepted, she could, via her counsel, Mr Sutton, have asked EJ Tayler if an inquiry of Ms Crighton could be made. Had such inquiry been made, I should be astonished if Ms Crighton had declined to answer it. Ms O'Rourke's position, however, was that the duty of disclosure was exclusively a one-way operation and that the burden was on EJ Tayler to gather the relevant information and then provide it; and, should he overlook anything that he ought to have discovered and disclosed, any purported waiver would be invalid.
- By way of authority said to support that exacting disclosure obligation, Ms O'Rourke referred us to Davidson v. Scottish Minister  SLT 895, a decision of the House of Lords. Lord Bingham of Cornhill, at , after stating that when a judge is subject to a disqualifying interest in the nature of actual bias, he should, without more, stand down from the case, continued:
'… Apparent bias may raise more difficult problems. It is not unusual for a judge, at the outset of a hearing, to mention a previous activity or association which could not, properly understood, form the basis of any reasonable apprehension of lack of impartiality. Provided it is not carried to excess, this practice is not to be discouraged, since it may obviate the risk of misunderstanding, misrepresentation or misreporting after the hearing. It is also routine for judges, before or at the outset of a hearing, to disclose a previous activity or association which would or might provide the basis for a reasonable apprehension of lack of impartiality. It is very important that proper disclosure should be made in such cases, first, because it gives the parties an opportunity to object and, secondly, because the judge shows, by disclosure, that he or she has nothing to hide and is fully conscious of the factors which might be apprehended to influence his or her judgment. When such disclosure is made, it is unusual for objection to be taken. …'.
- Those observations were directed to the situation that arises when a judge assigned to a case recognises at the outset that he may have, or have had, some association with it, or with the one or other of the parties, that could be perceived as raising a possibility of bias on his part. They emphasise that in such a case the judge should make 'proper disclosure'. Lord Bingham had earlier been a party to the judgment of the Court of Appeal in Locabail (UK) Ltd v. Bayfield Properties Ltd and Another  QB 451, in which, at , the court had gone rather further and had made clear that the judge in such a case 'should … inquire into the full facts, so far as they are ascertainable, in order to make disclosure in the light of them …'. I would not, therefore, read Lord Bingham as having intended to water down that obligation by his less comprehensive remarks in Davidson. The more relevant question is whether the duty of inquiry made explicit in Locabail and, probably, also implicit in Davidson applies equally to the rather different type of situation with which the ET suddenly became faced when Ms Bhardwaj's hearing was already several days down the track. I shall return to that when considering Mr Sethi's submissions.
- Ms O'Rourke also referred us to Jones v. DAS Legal Expenses Insurance Co Ltd  IRLR 218, a decision of the Court of Appeal (Ward, Waller and Hale LJJ). Mr Jones had brought a discrimination case in an employment tribunal against his employer, DAS. At the outset of the hearing, the tribunal chairman announced that her barrister husband was in chambers that did work for DAS and that her husband had on occasions been instructed by it. Mr Jones had been admitted as a solicitor, but had limited post-qualification experience, virtually no advocacy experience and had never held a practising certificate. He was representing himself in his case and, following the disclosure, he agreed to the tribunal continuing to hear it. When his claim was dismissed, he sought before the EAT to challenge the decision on the ground of perversity and bias, both of which failed. Judge Clark, for the EAT, said that, even if it was a case of apparent bias, 'Mr Jones was given all the information that he required to decide whether or not to waive his right to object to her continuing sitting in this case. His waiver was clear and unequivocal.'
- The Court of Appeal rejected Mr Jones's argument that this was a case of presumed bias but also considered his appeal on the basis that the nature of the bias of which he was complaining was more aptly to be regarded as one of apparent bias. After a careful analysis, the court concluded that the circumstances of the case would not lead a fair-minded and informed observer to conclude 'that the chairman herself, still less the tribunal as the decision-making body, was biased.' The court then also (and anyway) considered whether Mr Jones had made a valid waiver and referred to Locabail, at , which had explained that '… any waiver must be clear and unequivocal, and made with full knowledge of all the facts relevant to the decision whether to waive or not.' It held that there had been a valid waiver by Mr Jones.
- The court, at , set out an expressly non-exhaustive list of steps that a judge or tribunal might usefully take when faced at the outset of a case with a concern that he/she, it or a member has, or has had, an association or connection with one of the parties which might be perceived as giving rise to a real possibility of bias. The step to which Ms O'Rourke referred in support of her submission as to the duty on the part of EJ Tayler to make full inquiries was that in paragraph (iv):
'(iv) A full explanation must be given to the parties. That explanation should detail exactly what matters are within the judge's knowledge which give rise to a possible conflict of interest. The judge must be punctilious in setting out all material matters known to him. Secondly, an explanation should be given as to why the problem had only arisen so late in the day. The parties deserve also to be told whether it would be possible to move the case to another judge that day.'
- My comments on that paragraph are: (i) it is dealing with a situation akin to that which was considered in the part of  of Locabail to which I referred at  above, which was rather different from the situation with the ET was faced in the present case on 23 March; (ii) if anything, the passage suggests that the duty of inquiry is lower than that suggested in Locabail, at , although I doubt if it was intended to do so; and (iii) taken at face value, there is anyway nothing in it that supports Ms O'Rourke's submission that EJ Tayler was under a duty to do more than to disclose the matters known to him.
- I regard the court's judgment in Jones at  as perhaps providing rather more instructive teaching as to the extent of the duty of disclosure faced by someone in the position of the chairman in the Jones case. It reads:
'As to … whether or not he had full disclosure of all the facts relevant to the decision, we have also found this difficult. Waiver would never operate if "full facts" meant each and every detail of factual information which diligent nagging can produce. Full facts relevant to the decision to be taken must be confined to the essential facts. What is important is that the litigant should understand the nature of the case rather than the detail. It is sufficient if there is disclosed to him all he needs to know, which is invariably different from all he wants to know. So in this case and on the particular facts of this case it seems to me [sic: should have been 'us' – this was a judgment of the court] to have been sufficient for Mr Jones to have been told that Mr Harper was a barrister in chambers which did DAS work and that he himself had done such work. It was not necessary for Mr Jones to know on how many occasions he had been instructed and how much he had been paid for such work. The information was sufficient for Mr Jones to know, or at least appreciate the possibility, that Mr Harper was on the appropriate DAS panels, since Mr Jones must be taken to know how the DAS system worked. Mr Jones would also then know or appreciate the possibility that individual respondents or witnesses to be called on behalf of the employer would have it within their power to direct or curtail work to Mr Harper. In our judgment the disclosure, bald as it was, was sufficient for its purpose.'
That guidance, if I may respectfully say so, appears to me to be good practical sense.
- Ms O'Rourke also referred us to Smith v. Kvaerner Cementation Foundations Ltd (General Council of the Bar intervening)  EWCA 242;  1 WLR 370. Mr Smith's personal injury claim came on for trial before a recorder who was head of the chambers in which counsel for both parties were also members. Mr Smith was told of this before the trial started and, during counsel's opening, the recorder also explained that he had acted for the defendant company. It later turned out that that statement was strictly inaccurate – he had only acted for other companies in its group – but such inaccuracy was regarded as immaterial. Following advice from his counsel, Mr Smith agreed to the case going ahead. His claim was dismissed and, by his appeal, he asserted apparent bias.
- The Court of Appeal (Lord Phillips of Worth Matravers CJ, Sir Anthony Clarke MR and May LJ) rejected the suggestion that the fact that both counsel were in the same chambers as the recorder gave rise to apparent bias. The fact, however, that the recorder regarded the defendant as a longstanding and current lay client did give rise to apparent bias, with the consequence that, absent a valid waiver from the parties, he could not have tried the case. The question was whether Mr Smith's waiver was valid.
- In coming to its conclusion, the court referred to the requirement for a valid waiver referred to in Locabail, at , and to the guidance given by the Court of Appeal in Jones, at , which the court, at , said was 'useful guidance but, as the court [in Jones] made plain, it should not be treated as a set of rules which must be complied with if a waiver is to be valid.' The court continued:
'… The vital requirements are that the party waiving should be aware of all the material facts, of the consequences of the choice open to him, and given a fair opportunity to reach an unpressured decision.'
- The court then held that there were shortcomings both in the information given to Mr Smith and in the way in which he came to his decision. First, he was not given any information as to how quickly his case could be tried if he insisted it should be transferred to another judge and the court said that it appeared no attempt was made to find this out. The court said, at , that the recorder should at the outset himself have explained to Mr Smith what the options were and made quite sure that he was content that the recorder should try the case. Second, the court took the view that counsel's strong advice to Mr Smith to agree to the case continuing before the recorder, advice largely based on his knowledge of the personal integrity of the individual judge, was inappropriate. Overall the court took the view that such advice, directed as it was to encouraging Mr Smith to waive his right to object, meant that Mr Smith's decision to agree to the recorder trying the case was not made freely. The result was that the waiver was invalid.
- I do not regard any addition to the jurisprudence that Kvaerner may have made as directly material to the present case, in particular its emphasis on the need for the waiving party to be aware of the '… consequences of the choice open to him, and [that he should be] given a fair opportunity to reach an unpressured decision'. The points in Ms Bhardwaj's grounds of appeal do not include that she was not aware of such consequences, or that she was unfairly pressured by her counsel into a decision. Although Wilkie J, in his judgment for the EAT, did not refer expressly to Kvaerner, he did say, at , that:
'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'
- Those observations reflect that the EAT was aware of Kvaerner but was also satisfied that Ms Bhardwaj did understand the relevant consequences and also that she had reached an unpressured decision. Ms Bhardwaj's grounds of appeal include the assertion that she was subjected to the making of a pressured decision because she was not told of the issues earlier than she was, and had only about two hours to consider the matter, by which time she was a long way into a lengthy hearing for which she was funding her representation herself. She said that the financial pressure on her was, therefore, significant. The EAT recognised that but found that it did not prevent her waiver being a free and fully informed one. She had plenty of time in which to make her decision. It is anyway not open to Ms Bhardwaj on this appeal to challenge the EAT's finding that her decision was an unpressured one. That is a finding of fact by which she is bound; and appeals to this court from the EAT lie only on a question of law.
- In his submissions in response on the waiver issue, Mr Sethi reminded us of Locabail, at , which explains that what is required for a valid waiver is 'full knowledge of all the facts relevant to the decision whether to waive or not' (my emphasis). He also referred us to Locabail, at , where the judgment of the Court of Appeal included this important passage about waiver, to part of which I earlier referred in  when discussing Davidson:
'… If, appropriate disclosure having been made by the judge, a party raises no objection to the judge hearing or continuing to hear a case, that party cannot thereafter complain of the matter disclosed as giving rise to a real danger of bias. It would be unjust to the other party and undermine both the reality and the appearance of justice to allow him to do so. What disclosure is appropriate depends in large measure on the stage that the matter has reached. If, before a hearing has begun, the judge is alerted to some matter which might, depending on the full facts, throw doubt on his fitness to sit, the judge should in our view inquire into the full facts, so far as they are ascertainable, in order to make disclosure in the light of them. But, if a judge has embarked on a hearing in ignorance of a matter which emerges during the hearing, it is in our view enough if the judge discloses what he then knows. Nor is he bound to fill any gaps in his knowledge which, if filled, might provide stronger grounds for objection to his hearing or continuing to hear the case. If, of course, he does make further inquiry and learn additional facts not known to him before, then he must make disclosure of those facts also. It is, however, generally undesirable that hearings should be aborted unless the reality or the appearance of justice requires that they should.' (Emphasis supplied).
- Mr Sethi pointed out that cases like Jones and Kvaerner fall within the former category of case there referred to, in which there will or may be a duty on the part of the judge or tribunal to inquire into the facts, so far as ascertainable, in order to be able to make full disclosure of them. But the present case falls within the second category, in which the ET's only obligation was to disclose what it knew. There is no doubt that the ET did that (the EAT so found) and that Locabail shows that Ms Bhardwaj is not entitled to complain that the ET did not make the inquiries that would have enabled it to make the fuller disclosure that she asserts it should have done. Ms Bhardwaj was anyway given the essential facts that she needed to know in order to make an informed decision as to whether or not to waive, even if this may have fallen short of all that she wanted to know; and, for that, Mr Sethi reminded us of Jones, at .
- Mr Sethi added, however, what is anyway obvious: namely, that if in order to make an informed decision about how to respond to the disclosure, Ms Bhardwaj considered that she did need more information (for example, as to when Ms Crighton applied to become a lay member and when she was offered the appointment), she could have asked for it on 23 March and, if she had, she would no doubt have been provided with it. Ms Crighton was about to give evidence and Ms Bharwaj could even have sought the opportunity to question her about the matter of her appointment before making her decision as to whether or not to agree to the continued hearing.
- Coming now to my conclusion on the Crighton issue, I am satisfied that the EAT came to a correct decision that on 23 March 2010 Ms Bhardwaj made a valid, and irrevocable, waiver of her right to object to a continued hearing by the ET of her case. When the ET learnt of the matter of Ms Crighton's appointment as a London Central member, it correctly recognised it as something that needed to be disclosed to the parties in order for them to have the opportunity to consider whether they wished to object to the ET continuing to hear the case. I do not regard it as material that, although EJ Tayler received the information at some unknown time on Friday 19 March, he did not disclose it until Tuesday 23 March. His explanation as to why he did not disclose it before then was that 'Before I raised it with the parties I ascertained how the matter would be addressed'. It is easy, after the event, to adopt the view that he could and should have disclosed it immediately, but the inference is that he wanted to consider the implications of what he had learnt and how he should respond to it, which he did, with the result that he made the disclosure on Tuesday 23 March. Whilst it would have been better if he had made the disclosure before, I do not regard his modest delay in doing so as material to the validity or otherwise of the waiver that Ms Bhardwaj made.
- When he did disclose the matter, he disclosed what he knew, and this court's judgment in Locabail, at , shows that that was all he needed to disclose. I would not therefore accept Ms O'Rourke's submission that he ought first to have made fuller inquiry into the background facts and made a fuller disclosure. The disclosure he made was anyway also of all the facts relevant to the decision whether to waive or not: they told Ms Bhardwaj all she needed to know in order to make an informed decision. Whilst Ms Bhardwaj asserts that she ought to have been provided with the further information to which I have referred, none of it was necessary for the decision she had to make. If, however, she considered that she did need any of that further information before making her decision, she had the opportunity to ask for it via the ET. Ms Bhardwaj was a barrister of some 25 years standing, who also had the added advantage of being represented by counsel who was not only experienced in employment law but who could also bring in the additional insight given to him by his status as a part-time chairman of employment tribunals. It would obviously have been apparent to them both that, if it was considered that further information was required before any decision was made, they could have asked for it.
- In that context, it was, for example, somewhat faintly suggested to us by Ms O'Rourke that one of the factors that might have influenced Ms Bhardwaj in that decision was whether, if she had decided to object to the continued hearing, she might then have a prospect of recovering all or part of her wasted costs from another quarter. If that was in fact a consideration, then presumably she made an assessment about it when making her waiver decision. If, however, she had considered that she first needed further facts in order better to inform herself about that particular prospect, she could have asked for them. As it is, Ms Bhardwaj made what the EAT found, at  of its judgment, to have been a free and unpressured decision, one primarily influenced by the investment to date of her own funds that she made in the proceedings. I well understand how that consideration would have weighed heavily with her – and how, in the event, it carried the day. As the EAT said, it did not, however, prevent her decision being a free and fully informed one.
- In my judgment, there was no error of law in the EAT's conclusion that Ms Bhardwaj's waiver of her right to object to the continued hearing of her case by the ET was valid. I would dismiss this ground of Ms Bhardwaj's appeal.
The Carter/Whiteman incident
- The only issue here is whether the Carter/Whiteman incident of 14 June 2010 would cause 'the fair-minded and informed observer, having considered the facts, [to] conclude that there was a real possibility that the [ET] was biased' (Porter v. Magill  UKHL 67;  2AC 357, at 103, per Lord Hope of Craighead). Given, however, that Ms Bhardwaj had earlier waived any objection on the ground of apparent bias by reason of the Crighton factor, the issue may perhaps more accurately be regarded as whether the ET had become an apparently biased one on and following 14 June 2010.
- It is worth noting the virtues of the 'fair-minded and informed observer'. In the decision of the House of Lords in Lawal v. Northern Spirit Ltd  UKHL 35;  ICR 856, Lord Steyn (who gave the considered opinion of the Committee) said, at :
'Public perception of the possibility of unconscious bias is the key. It is unnecessary to delve into the characteristics to be attributed to the fair-minded and informed observer. What can confidently be said is that one is entitled to conclude that such an observer will adopt a balanced approach. This idea was succinctly expressed in Johnson v. Johnson (2000) 201 CLR 488, 509, para 53, by Kirby J when he stated that "a reasonable member of the public is neither complacent nor unduly sensitive or suspicious."'
- In the later decision of the House of Lords in Helow v. Secretary of State for the Home Department and another  UKHL 62;  1 WLR 2416, Lord Hope of Craighead regarded it as appropriate to delve deeper into the characteristics of the observer. He said:
'1. … the fair-minded and informed observer is a relative newcomer among the select group of personalities who inhabit our legal village and are available to be called upon when a problem arises that needs to be solved objectively. Like the reasonable man whose attributes have been explored so often in the context of the law of negligence, the fair-minded observer is a creature of fiction. Gender-neutral (as this is a case where the complainer and the person complained about are both women, I shall avoid using the word "he"), she has attributes which many of us might struggle to attain to.
2. The observer who is fair-minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious, as Kirby J observed in Johnson v. Johnson (2000) 201 CLR 488, 509, para 53. Her approach must not be confused with that of the person who has brought the complaint. The "real possibility" test ensures that there is this measure of detachment. The assumptions that the complainer makes are not to be attributed to the observer unless they can be justified objectively. But she is not complacent either. She knows that fairness requires that judges, like anybody else, have their weaknesses. She will not shrink from the conclusion, if it can be justified objectively, that things that they have said or done or associations that they have formed may make it difficult for them to judge the case before them impartially.
3. Then there is the attribute that the observer is "informed". It makes the point that, before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines. She is able to put whatever she has read or seen into its overall social, political or geographical context. She is fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment.'
- The case for apparent bias based on the incident of 14 June 2010 is, so it seems to me, founded on material that is ostensibly somewhat on the thin side. The starting premise is that Mr Whiteman's status as a London South lay member was not a factor justifying any inference of apparent bias by the London Central ET. Ms Bhardwaj's finishing position is, however, that the position changed fundamentally by the presence of Mr Carter and Mr Whiteman at the same training event, even though it was an occasion when there was virtually no interaction between them and, insofar as there was any, it was momentary and unrelated to Ms Bhardwaj's case.
- The facts are that, before Mr Carter had realised that Mr Whiteman was a respondent to Ms Bhardwaj's case, they exchanged a civil morning greeting but no more. When, fortunately, Ms O'Toole promptly stepped in and enlightened them of their respective roles in the case, the exchange stopped and Mr Carter thereafter avoided all contact with Mr Whiteman. He withdrew from Mr Whiteman's breakaway group, into which he had been put, and joined another one. He did not attend the plenary session that followed the first group session: he was instead engaged in trying to speak to Regional EJ Potter about what had happened. He had lunch with the entire gathering but again, I infer, steered clear of Mr Whiteman. There was another plenary session, which Mr Carter attended, and then, finally, another group session, when Mr Carter and Mr Whiteman were again in different groups. At no point following the morning's greeting did Mr Carter and Mr Whiteman speak to each other again.
- The case for apparent bias arising out of the Carter/Whiteman incident is that whereas immediately before the training day there was no dispute as to Mr Carter's ability to assess Ms Bhardwaj's case against Mr Whiteman, a London South appointee, in a fair and unbiased way, their joint presence at the training day shifted the case into one in which bias on the part of Mr Carter, and through him the ET as a whole, is said to have become apparent. The basis of the claimed shift has to be, and is, that their joint presence at a training day for lay members must be taken to have established a professional collegiate bond between them sufficient to give rise to a real possibility that, if only unconsciously, Mr Carter would not assess Ms Bhardwaj's claim against Mr Whiteman with the same impartiality and objectivity he would otherwise have brought to bear.
- If, as they could easily have been, the events at the training day had been only a little different, there might well here be a point of some substance. If Ms O'Toole had not been present, Mr Carter and Mr Whiteman might not have realised the Bhardwaj connection between them (Mr Whiteman had not yet given evidence and might not even have attended any of the prior ET hearings). They might in that event, and following their morning greeting, thereafter have maintained friendly contact during the day, including during the two group sessions in the group to which they would find they had both been assigned. They might have had lunch together. Over the whole course of the day, they might therefore have established a friendly professional association of the sort that can readily arise between colleagues on such occasions. Had anything like that happened, it would, so it seems to me, be likely to have presented Mr Carter with a real sense of embarrassment when later he came to realise that Mr Whiteman was a respondent in Ms Bhardwaj's case. I regard it as likely that the fair-minded and informed observer would have scrutinised such circumstances with real care in forming his view as to whether they raised a real possibility of bias on the part of Mr Carter. He might well have concluded that they did.
- The imaginary facts thus described are, however, miles away from the actual ones. The facts are that, upon realising that Mr Whiteman was a respondent, Mr Carter immediately stopped the conversation. He did not, for example, take the view that as long as they did not talk about the case, friendly conversational contact between them of the sort that is usual at training days could safely continue. Instead, he deliberately took steps to avoid all contact with Mr Whiteman. That is because he knew that he was a member of an ET that would in due course be judging Mr Whiteman. It is obvious that his conduct vis-à-vis Mr Whiteman following Ms O'Toole's intervention was so to distance himself from him as to avoid prejudicing his position as an impartial member of the ET.
- In my judgment, the fair-minded and informed observer's assessment of the facts of the Carter/Whiteman incident would leave him well short of being satisfied that they gave rise to a real possibility of bias on the part of Mr Carter. Importantly, he would view the facts with a detachment that Ms Bhardwaj does not share. He would, in consequence, identify nothing in the nature of the Carter/Whiteman contact that could objectively justify an inference that Mr Carter's prior impartiality in the handling of the Bhardwaj case had in some way become impaired. He would recognise Mr Carter's deliberate distancing of himself from Mr Whiteman as a recognition of the independence that a lay member such as he ought to maintain and display and, with it, his impartiality in contributing to the decision in the case. He would discount the suggestion that the mere fact of Mr Carter's and Mr Whiteman's attendance at the same collegiate event was a factor justifying an inference that Mr Carter's impartiality would, perhaps unconsciously, be impaired. He would not, in all the circumstances, conclude that there were here any grounds for a conclusion that there was a real possibility of bias on the part of Mr Carter or, therefore, of the ET.
- In my view the EAT came to the correct conclusion on the Carter/Whiteman issue. I would also dismiss Ms Bhardwaj's appeal on this ground.
The 'Magenta' issue
- Ms O'Rourke did not rely on this ground when renewing Ms Bhardwaj's permission application before Sir David Keene and she advanced no oral submissions in support of it at the hearing of the appeal, although she did inform us that Ms Bhardwaj had not abandoned it. Having been so informed, I consider I should deal with it, although we had nothing more in support of it than two pages of written argument in an amended skeleton argument (not the work of Ms O'Rourke or Ms Newbegin) that runs to some 54 pages and was therefore drafted in apparent defiance of the rules. This is not a case in which there was any justification for a skeleton argument of that length.
- I do not find this ground easy to follow. Its essence, however, appears to be to the effect that although, following the disclosure of 23 March, the parties agreed to the ET continuing with the hearing, the ET should nevertheless still have considered of its own motion whether it should do so or whether it should recuse itself and transfer the case to a different region.
- The point is made that in his response of 21 March 2011 to the EAT in answer to various of Ms Bhardwaj's criticisms of the ET – one of which was that following the emergence of the Crighton factor, the ET should have recused itself – EJ Tayler said that he did not consider that that would have been appropriate when none of the parties had suggested that the ET should either do so or consider doing so. He said that he did not consider it appropriate, contrary to the wishes of the parties, for the ET to recuse itself of its own motion and to transfer the case to another region.
- What is said is that, as the inference from EJ Tayler's remarks is that the full ET did not consider whether it should, of its own motion – despite the express wishes of all the parties – abort the hearing, the purported decision by EJ Tayler alone not to abort it was irregular. Translating that into a positive proposition, the point appears to amount to a complaint by Ms Bhardwaj that, even though she and the other parties informed the ET that they wished it to continue with the hearing, the full ET ought itself, of its own motion, to have considered what to do about the case and should have overruled the express wishes of the parties and have aborted the hearing. I understand the complaint to be that it did not do so.
- If I have correctly interpreted it, the complaint is a remarkable one. This was a case where the ET had identified and disclosed a matter that might reasonably concern one or more of the parties as to whether it should continue to hear the case. Having considered the matter so disclosed, all parties agreed that the ET should continue with the hearing and the ET did so. It may be that the ET could, following the parties' response to the disclosure, nevertheless still have decided of its own motion to stop the proceedings and send the case to another region. That would, however, have been an odd decision and it is no surprise that EJ Tayler rejected it as a realistic choice. It may be that if such rejection was not the considered decision of the full ET, it was strictly irregular. But what is the consequence? It amounts to no more than that the ET did not of its own motion make a valid decision as to whether or not it should abort the hearing. On what basis, however, can a party appeal against a failure by an ET to make a decision that it might have made of its own motion but in fact neither made nor had to make? Ms Bhardwaj's position appears to come down to the proposition that the ET wrongly failed to reject her and the other parties' agreement that it should continue with the hearing. That complaint is misplaced. Ms O'Rourke's disinclination to press it upon us was well judged.
- I would dismiss the appeal.
Lord Justice Jackson:
- I agree with both judgments.
Lady Justice Arden:
- I agree with the judgment of Sir Colin Rimer and the order he proposes for the reasons he gives.
- It is an extraordinary fact of these race discrimination proceedings that three of the respondents and one of the witnesses for the applicant became lay members of the Employment Tribunals in the same or contiguous regions as those proceedings were taking place during the currency of the proceedings, and that two appointments of the respondents were only made known to the applicant during the trial of the proceedings. It is conceded that one of those appointments gave rise to apparent bias on the part of the panel hearing the case. Like Sir Colin, I would find it surprising if Ms Crighton and Mr Whiteman did not make disclosure of their position in these proceedings on their September 2009 applications, and I would hope that in any event the JAC had the means of knowing about these proceedings.
- The independence of the judiciary is a pearl above price in our society. The judiciary must also have the confidence of the public it serves.
- If the type of events to which I have referred are liable to recur then I hope that the Employment Tribunals will reflect on the proper procedure for future cases and consider whether it is necessary or desirable to have some clear public statement of their practice to ensure both consistency between the regions and the adoption of a procedure which is consistent with the high standards which we rightly expect of our judiciary.
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