Although members of tribunal panels have to swear on oath that they consider all cases impartially, the Employment Appeal Tribunal (EAT) held in Higgs v Farmor’s School and anor that although the judicial oath was “an important protection” it was not a guarantee of bias-free judgment. If there is even a perception of bias on the part of a panel member, therefore, they should step down.
Basic facts
Ms Higgs was employed by the school as a pastoral administrator and work experience manager. The head teacher received a complaint from someone external to the school about a Facebook post that Ms Higgs had made which was critical of teaching in schools about same-sex relationships, same-sex marriage and gender being a matter of choice. The complainant described the posts as homophobic and prejudiced against the LGBT community.
After an investigation and a disciplinary hearing, the school dismissed Ms Higgs on the ground of gross misconduct. She lodged claims of direct discrimination and harassment because of her religion or belief. These included her lack of belief in gender fluidity and that someone could change their biological sex; in addition to a belief in the literal word of God, particularly Genesis 1 v 27 which states that “God created man in His own image”.
Tribunal decision
Although the tribunal agreed that Ms Higgs’ beliefs constituted a protected characteristic for the purposes of the Equality Act 2010, it rejected her claims of direct discrimination and harassment on the basis that she was not dismissed because of her beliefs, but rather because someone reading her Facebook posts might reasonably conclude that she was homophobic and transphobic. Ms Higgs appealed, arguing that any “reasonable and informed person” would conclude that her posts were a critique of a certain approach to education.
The appeal was then listed to be heard by a judge and two lay members – Mx Lord and Mr Morris. However, Ms Higgs asked that Mx Lord should step down (known as recusal) because of certain public statements they had made on Twitter, indicating their opposition to gender critical views and their support of sex and/or relationship education at school, including teaching children about transgenderism. These comments related to a key issue in the appeal, namely the extent to which individuals should be restricted from making comments regarding those with protected characteristics. Ms Higgs argued that Mx Lord’s views, which were clearly strongly held, could give rise to a perception of bias.
EAT decision
Ms Higgs’ appeal was postponed and the issues of Mx Lord’s recusal was considered at a hearing of the EAT. Applying the test of the fair-minded and informed observer in Porter v Magill, the EAT made clear that it was satisfied that Mx Lord would strive to ensure that Ms Higgs received a fair hearing, not least because they had taken a judicial oath to do so.
However, although the oath was “an important protection” it was not “a sufficient guarantee to exclude all legitimate doubt”. This was particularly a concern in this case, given that underlying Ms Higgs’ grounds of appeal was a contention that the tribunal had failed to have proper regard for her right to express her legitimately held beliefs.
As the EAT would have to scrutinise how the tribunal approached the balancing exercise between competing rights, it was satisfied that the fair-minded and informed observer would conclude that there would be a real possibility of unconscious bias, given the evidence that had been presented of Mx Lord’s position on the very issues at the heart of Ms Higgs’ case.
The EAT, therefore, concluded that having regard to the nature of the debate relating to the issues raised by the appeal, there was real ground for doubt about Mx Lord’s ability to approach the case with an impartial and entirely open mind. That being so, the EAT held that they should be recused from hearing the appeal.
Comment
While this case was concerned with the law on unconscious bias in tribunals as a result of personal views expressed by a lay member via social media, it serves as a reminder to us all when expressing personal views that there can be unintended consequences.