Welcome back everyone, we hope you’ve all enjoyed your bank holiday weekend and are looking forward to another one! Last time we had a quick run through a complex Legal Professional Privilege case, which you can find here. This week’s case looks at a strange set of circumstances where a lay member of the Employment Appeal Tribunal was accused of bias in the proceedings and recused from the hearing!

The Claimant, Mrs Kristie Higgs, had been employed by the Respondent, Farmor’s School, since 2012 as a pastoral administrator and work experience manager. In October of 2018 the head teacher of the school received a complaint about Facebook posts the Claimant had made – under her maiden name – which shared an article criticising the teaching of same sex relationships, marriage, and gender choice, along with a petition. Following an investigation into the complaint, another post was found which made statements on the use of books in the United States; stating that ‘School systems are destroying the minds of normal children by promoting mental illness’ and other comments critical of the concept of gender fluidity.

At a disciplinary hearing in January 2019 the Claimant was informed of her summary dismissal on the grounds of gross misconduct. Mrs Higgs appealed the decision within the school disciplinary procedure, but the dismissal was upheld. Following exhausting all of the internal options, Mrs Higgs brought a claim for unfair dismissal at the Employment Tribunal.

Claims were brought under the Equality Act 2010, arguing that the dismissal amounted to direct discrimination on the grounds of her religion. While the Tribunal accepted that the Claimant’s belief failed to be treated as a protected characteristic, it took the view that someone reading the Claimant’s posts ‘might conclude that someone who associated herself with such a post not only felt strongly that gender fluidity should not be taught in schools but was also hostile towards the LGBT community, and trans people in particular.’ In rejecting the claims brought against the school, the Tribunal found that the Claimant’s attitude may impact the relationships she would have with the students at the school.

The issue in question here, however, arose when the Archbishops’ Council of the Church of England sent a notification to the appeal tribunal notifying them that one of the lay members set to sit on the tribunal had expressed on social media their opposition to the views in contention in the claim. Having been asked about the situation, the lay member denied that they should be recused from the tribunal on the grounds that their judicial duty was, first and foremost, their biggest concern and that they would uphold the law regardless of their own personal beliefs.

In 2022, the judge concluded that the lay member should be recused from the hearing. But this was not to be the last issue surrounding bias to arise in this case.

The day before the case was set to be re-listed, another application was made in relation to the other lay member of the tribunal. The Claimant’s solicitor contended that the other lay member would also be seen as open to bias, being the former Assistant General Secretary of the National Education Union. During the time the lay member was with the NEU their policies were expanded to incorporate strong stances against the issues at the heart of this case.

Compared to the previous lay member, the member in question in these more recent decisions had made no public statements in relation to these issues whatsoever. The question came down to whether given the position held at the NEU the lay member was sufficiently associated with the views so that a reasonable observer could see the tribunal as making a bias decision. While the tribunal stated there was no reason to assume that the lay member agreed with the position taken, the judge ultimately ordered the further recusal of the second lay member. In the interests of justice, the judge decided that the best course of action was to hear the appeal alone.

Takeaway Points

While it is unlikely this will apply to you dear reader, (unless you are already a lay member of the tribunal or are looking to become one!), it may be of some relevance to you should you find yourself in a tribunal setting. Not everyone will be fortunate enough to have solicitors instructed by the Church of England to step in to try and ensure fairness on their behalf! So it is always a consideration to look into the public statements of the appointed members to ensure that there is no bias that could directly impact the outcome of a decision, especially when dealing with controversial topics such as the ones raised here.

The other point of note relates to the use of social media, the one pervasive into seemingly everyone’s lives! Ensure that anything that you post on social media you take great care in ensuring you would be happy discussing in front of your manager or even a tribunal judge. I’m sure they’d be more than happy to discuss those pictures of your pets though!’