Kristie Higgs v Farmor's School

A tribunal member must be recused for apparent bias where the fair-minded and informed observer would conclude that there is a real possibility that the member cannot approach the case with an impartial and open mind. The inquiry is objective and fact-sensitive. It requires consideration of the issues to be decided, the member’s public statements, and their relevance to those issues.

A judicial oath and an assurance of impartiality are important safeguards, but do not necessarily remove objectively justified doubt. Where a lay member has forcefully expressed public views on the central issues of a highly polarised appeal, there may be a real possibility of unconscious bias. The proper course is recusal.

The claimant appealed from an Employment Tribunal decision dismissing her claims of discrimination and harassment arising from her dismissal after Facebook posts concerning LGBT matters, gender identity and education in schools. Her appeal included grounds concerning freedom of expression, proportionality, the characterisation of her posts as homophobic or transphobic, and the reasons for the employer’s actions.

The appeal had been listed before a judge and two lay members. The claimant applied to recuse one lay member after public Twitter statements were identified which expressed strong views on transgender rights, gender-critical views and transgender-inclusive education. The respondent and intervenor took neutral positions. The issue was whether those statements gave rise to apparent bias.

1. Application allowed. The lay member was recused. A fair-minded and informed observer would conclude that there was a real possibility of bias if the lay member sat on the appeal. The appeal was to be re-listed before a replacement lay member.

2. The governing test was whether that observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased: [2002] 2 AC 357. The inquiry is objective. It is not determined by either the claimant’s subjective concern or the lay member’s sincere assurance that they would decide solely on the facts and law. A real ground for doubt is sufficient; probability is unnecessary.

3. The context was decisive. The appeal required the EAT to assess the Tribunal’s treatment of the claimant’s expression of religious or philosophical beliefs, including whether readers could properly regard her posts as homophobic or transphobic. It also concerned competing rights in a highly polarised public debate. The lay member’s tweets had publicly and forcefully characterised views materially similar to those raised by the appeal as transphobic, and addressed transgender inclusion in schools.

4. The observer would take account of the judicial oath, the distinction between private statements and judicial decision-making, and the lay member’s experience. Those considerations supported the view that the lay member would endeavour to act fairly. They could not, however, exclude an objectively justified concern that the member might have pre-judged central issues or be affected by unconscious bias.

5. The recusal decision did not rest on the lay member’s protected characteristics, sexual orientation, gender identity, religion, or previous roles. It rested solely on the relevance and strength of the publicly expressed views in the particular appeal. For future cases, a lay member should raise potential issues of this kind with the judge sitting on the case, who can assess the issue and ensure appropriate disclosure to the parties.

• Employment Appeal Tribunal: The claimant’s appeal from the Employment Tribunal was pending. The EAT allowed her application for recusal of one lay member and directed that the appeal be re-listed before a replacement member.
• Employment Tribunal: The Tribunal dismissed claims under the Equality Act 2010 for direct discrimination and harassment arising from the claimant’s disciplinary process and dismissal.