Bias in the Tribunal
In a rare decision, the Employment Appeal Tribunal (EAT) have held that a lay member on a panel for an upcoming appeal should be recused from in the case of Higgs v Farmor’s School and anor (No.2) due to a potential perception of bias.
The Claimant, H, was a teacher at a school and was dismissed for gross misconduct after she posted articles on her Facebook page criticising the teaching of ‘gender fluidity’ in schools. She brought claims to the Employment Tribunal for unfair dismissal. These were dismissed by the Tribunal who found that she was dismissed because of the school’s concern that readers of her social media posts may consider that she was homophobic or transphobic. The Tribunal held that this consideration was reasonable.
EAT appeal and application of bias
H appealed to the EAT. The case was listed to be heard by a panel which included two lay members, L and M. H applied to the EAT for both L and M to be recused from the panel.
H applied for L to be recused because he had published views on Twitter stating his opinions on issues relevant to the appeal. H applied for recusal on the basis that a fair-minded and informed observer would have doubts about L’s ability to bring an impartial mind to the case.
There was also an application for the other panel member, M to be recused because he had previously held a position of Assistant General Secretary of the National Education Union (NEU).
The NEU have taken a strong position in favour of making both relationship and sex education mandatory in primary schools and encouraging teaching children at primary school about same sex relationships and transgenderism. This view was the opposite of H’s stance and was therefore core, H argued, to her case. H argued that a reasonable observer would also not see M as impartial. The School argued that there can be a distinction between an individual’s public expression of their personal views and the association of views with an organisation by which they are employed.
Decision of EAT
The President of the EAT, Mrs Justice Eady considered H’s applications. Justice Eady stated that to be recused, the threshold was whether a fair minded and informed observer would conclude there was a ‘real possibility’ rather than a ‘probability’ of bias. Justice Eady determined that if there was any ground for doubt then recusal should occur. In addition, if the test of apparent bias is met then there is no discretion as to whether a judge or lay member should be recused, they must be.
Justice Eady, when making her decision as to recusal, stated that she needed to take into account the ongoing debate in society relating to the issues in H’s original Facebook posts and as addressed by the NEU.
Justice Eady held that whilst M had not himself expressed any views on the relevant issues, he had held office of an organisation that had taken a clear view on these issues. Therefore, by virtue of the office he held, M would be associated with the views expressed by the NEU, which were clearly the opposite to H’s views. Whatever M’s personal position on the matter, there was therefore a real possibility that a reasonable observer might think that someone who held such a position at the relevant time would seek to maintain the position that had been held by the organisation they were engaged with and would be unfair in deciding on H’s case.
H’s application therefore succeeded and it was agreed that the appeal should be heard by Justice Eady sitting alone.
Whilst it is rare for a panel member or judge to be recused, this case illustrates that it is possible. This case shows there is a clear test to determine whether or not a recusal should take place and an individual Claimant should always put this application forward at the earliest possible opportunity in order for considerations to be made. The test is an objective test based on the views of a fair-minded observer and it does not matter what views are actually held by the individual judge or lay member.