Employment Tribunal – Dealing with your case

What you need to know about dealing with the Employment Tribunal

The Employment Tribunal are required to be open and to treat all parties equally. In most cases the Tribunal will be made up of 3 people, a Judge and two lay Tribunal members. The lay Employment Tribunal members are non-legally trained people, and are usually experienced business people.

The Employment Tribunal members have a duty to declare any conflicts of interest that may arise or which arises in the course of a Hearing. This means for example if one of the Tribunal members has a connection to your Employer they must declare this.

The reason that they are required to make it known to the parties is to prevent any bias or allegation of bias arising.

Bias in the Employment Tribunal

In the case of Bhardwai v FDA the Employment Appeal Tribunal had to decide if there had been ‘apparent bias’.

Ms Bhardwa was a practising barrister and brought claims for race discrimination in the Employment Tribunal. Two of the people that she was claiming against had recently become members of the Employment Tribunal and it was agreed that they would not begin work for the Tribunal until after the case with Ms Bhardwa had completed.

One of the lay members of the Employment Tribunal had come into contact with one of the Respondents in a training event for Employment Tribunal members during a period when the Hearing had been adjourned.

The lay member of the Tribunal told Ms Bhardwai and the other members of the Tribunal of this at the Hearing when it started again at a later date. Ms Bhardwai agreed to continue with the Hearing with the lay member as part of the Tribunal that decided her case.

When Ms Bhardwai’s claims were unsuccessful she appealed to the Employment Appeal Tribunal on the basis that there had been bias by the Employment Tribunal in deciding her case.

The Employment Appeal Tribunal rejected her argument and appeal on the basis that she had been fully aware of the situation, had taken legal advice and had time to make an unpressured decision about whether to continue. As a result she had waived her right to rely on this later on.

So what does this mean to you?

If there is any issue of bias or suggestion that one of the Employment Tribunal members could have a reason to be biased then you should think very seriously about whether to continue. If you are unrepresented and you do not understand the implications for you then you should tell the Judge this and not be afraid to ask for more time or to get legal advice.

If you are in any doubt it is better to request that the Tribunal member is excused and replaced than to continue and wonder what if.