Judicial officeholders are commonly high-achieving individuals with wide experience outside the confines of the law. However, as an Employment Appeal Tribunal (EAT) ruling made plain, they must always be alive to the risk that their extra-judicial activities may give rise to a reasonable apprehension of bias (Higgs v Farmor's School).
The case concerned a school pastoral administrator who was sacked after expressing on social media certain views relating to the hotly debated issue of mandatory relationship education in primary schools. After her claim that she had been discriminated against or harassed because of her protected beliefs was rejected by an Employment Tribunal, she lodged an appeal to the EAT.
A lay member of the EAT panel that was to consider her appeal had formerly served as assistant general secretary of a trade union which campaigned on matters of education policy and which had publicly expressed clear views in respect of the underlying debate that were directly opposed to those of the employee. In those circumstances, she contended that the lay member should be stood down – or recused – from hearing her appeal.
Ruling on the matter, the EAT noted that lay members bring a breadth of specialist experience and invaluable insights to the judicial process. None of the relevant pronouncements emanating from the union had been communicated or published by the lay member, nor could any of them be said to relate to his judicial office. He had not, so far as the EAT was aware, publicly expressed any views on either side of the debate that stood at the heart of the case. There was no reason to doubt that he would, in every case, seek to be true to his judicial oath of impartiality.
In nevertheless granting the recusal application, the EAT noted that, whatever his personal opinions might be, he would, by virtue of the senior position he held in the union, inevitably be associated with the views it had expressed. The union had a direct and obvious interest in the debate and a well-informed and impartial observer would be bound to conclude that there was a real possibility that he would unfairly regard the employee's case with disfavour. The EAT directed that the appeal should be heard by a judge, sitting alone.
For expert advice on all matters regarding Employment Tribunals, contact Emma-Louise Hewitt e.hewitt@sydneymitchell.co.uk and Carina Jheeta c.jheeta@sydneymitchell.co.uk.
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