Aspect Windows (Western) Limited v Adam Retter

The test for apparent bias is whether the fair-minded and informed observer, having considered all relevant facts, would conclude that there was a real possibility that the tribunal was biased. The observer reads relevant material carefully and does not attribute a third party’s partisan comments to a tribunal member.

Post-decision extrajudicial comments may, in principle, cast light on a tribunal member’s earlier approach. Whether they do so is acutely fact-sensitive. Conduct which may be inappropriate, or may amount to judicial misconduct, does not of itself establish apparent bias. The question remains whether it gives the objective appearance of prejudgment or decision otherwise than on the merits.

The claimant, Mrs McCrorie, succeeded before the Employment Tribunal in complaints of sex-related harassment, direct sex discrimination, victimisation and unfair dismissal. The tribunal found that the stated redundancy reason for dismissal was not genuine and awarded £86,496.81.

After the written decision was published, a lay member of the tribunal posted a link on LinkedIn to a Mail Online report of the case and replied to comments made by others. The employer appealed, alleging that the posts created apparent bias. Mrs McCrorie died during the appeal and Adam Retter was appointed to represent her estate. The central issue was whether the posts would lead the fair-minded and informed observer to conclude that there was a real possibility of bias.

1. Appeal dismissed. Applying Magill v Porter, the objective question was whether the fair-minded and informed observer, considering the facts, would conclude that there was a real possibility that the lay member had been biased.

2. The observer is not a casual reader of social-media material. Being fair-minded and informed, the observer would read the LinkedIn threads and their context carefully, distinguish the lay member’s words from those of third parties, and reserve judgment until both sides of the matter were understood.

3. Comments made after promulgation can in principle provide evidence of a tribunal member’s earlier approach. That possibility does not make every later comment indicative of prejudgment. The issue is fact-sensitive.

4. The initial LinkedIn post stated only that the lay member had sat on the case and that it had been reported in the Mail Online. Although the observer might infer an element of professional self-promotion, the embedded headline and images had not been selected by her. She added no comment on the outcome, the parties or the merits. The post did not indicate a real possibility of bias towards the successful claimant.

5. The observer would recognise that another contributor, not the lay member, called the outcome “brilliant”. Read as a whole, the lay member’s reply thanked that contributor but spoke generally of enjoying her judicial role and regarding it as an honour. It did not adopt the contributor’s partisan appraisal of this result.

6. The lay member’s response to another contributor accurately stated that the employer’s defence was denial rather than a “just banter” case. Though the exchange approached potentially dangerous territory, its accuracy and limited content did not establish a real possibility that she had prejudged the case or decided it other than on its merits.

7. The court expressed no view on whether the conduct was judicial misconduct. Such misconduct and apparent bias are distinct questions. Nor was it necessary to decide the respondent’s argument concerning permissible predisposition of lay members.

• Employment Appeal Tribunal: Appeal dismissed: [2023] EAT 95.
• Employment Tribunal: Following a full merits hearing, the tribunal upheld the claimant’s complaints and awarded £86,496.81. Written reasons were promulgated on 22 March 2021.