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MO SETHI SECURES COURT OF APPEAL VICTORY IN LEADING CASE ON BIAS AND WAIVER

The appeal in Bhardwaj v FDA and others [2016] EWCA Civ 800 arises from a five week hearing of a highly complex set of discrimination claims. One respondent and one of the claimant’s witnesses were appointed as lay members of the Employment Tribunals in the same region whilst those proceedings were taking place, two other respondents were lay members in a neighbouring region, and one of the respondents’ witnesses was a part-time employment judge in another region. The claimant (herself a barrister) was represented by an employment law specialist and part-time employment judge in another region.

The Court of Appeal unanimously held that although the appointment of a respondent in the same region in which the proceedings were taking place gave rise to apparent bias, in agreeing that the hearing should continue, the claimant had validly and irrevocably waived her right to complain about it.

Further, a brief interaction which took place whilst the case was part-heard and during an ET training day between one of the lay members hearing the case and another respondent appointed to a different region did not give rise to apparent bias.

In dismissing the claimant’s appeal, Sir Colin Rimer (with whom Lady Justice Arden and Lord Justice Jackson agreed) has provided courts and tribunals with essential guidance on the correct tests to be applied under the doctrines of apparent bias and waiver.

The Court of Appeal Judgment handed down on 28 July 2016 can be found HERE.

Mohinderpal Sethi appeared for the successful respondents in the ET, EAT and Court of Appeal.

Posted: 28.07.2016 at 14:33
Tags:  Cases  Employment Law
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