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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.

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