Higgs vs Farmors EAT casenote

EAT orders the recusal of a lay member due to their social media posts holding strong views opposed to gender critical views in a direct discrimination and harassment claim.

In Higgs v Farmor’s School [2022] EAT 101, the Employment Appeal Tribunal (“EAT”) held that, applying the test of the fair-minded and informed observer and having regard to the relevant context, a lay member of the EAT panel should be recused from hearing an appeal in circumstances where there are real grounds for doubt in their ability to approach the case with an impartial and entirely open mind. 

Direct discrimination claims under s 13 Equality Act 2010 (“EqA 2010”) and harassment claims under s 26 EqA 2010 might often concern a claimant’s religion or belief, including in cases where the claimant expresses gender critical beliefs. Higgs is an interesting decision as it provides an illustration of a lay member of an EAT panel being ordered to recuse itself as their publicly stated views on Twitter gave rise to a perception of bias in relation to the issues raised in an appeal concerning a Claimant summarily dismissed on the ground of gross misconduct for making a Facebook post complaining about pro-LGBT education in schools.

Background 

The Claimant worked at the Respondent since 2012 as a pastoral administrator and work experience manager. On 26 October 2018, the Respondent’s head teacher received a complaint about a Facebook post the Claimant had made which contained a re-post of a written piece stating that teaching in schools relating to same-sex relationships and to gender should be a “matter of choice”, to which the Claimant added “Please read this! They are brainwashing our children”. The complainant expressed the view that the Claimant’s post expressed prejudices against the LGBT community.

The Respondent was also forwarded a social media post from the Claimant, stating that the LGBT community are “destroying the minds of normal children by promoting mental illness” and that the “far-left…hijacked the learning environment and they insist on cramming their perverted vision of gender fluidity”. Following an investigation and a disciplinary hearing on 7 January 2019, the Respondent informed the Claimant that she was summarily dismissed on the ground of gross misconduct. The Respondent observed that the complainant had taken offence to the Claimant’s social media posts, which were described to be prejudiced against the LGBT community and containing inflammatory language. The Claimant appealed against the disciplinary outcome but the dismissal was upheld.

The Claimant then commenced proceedings in the Employment Tribunal (“ET”), complaining that the Respondent’s decision to commence disciplinary proceedings, dismissing her and rejecting her appeal amounted to direct discrimination because of her religion or belief and/or harassment relating to her religion or belief.

The Claimant relied on the following statements of belief/lack of belief:

• Lack of belief in gender fluidity.

• Lack of belief that someone could change their biological sex/gender.

• Belief that marriage is a life-long union between one man and one woman.

• Lack of belief in ‘same sex marriage’, for being contrary to Biblical teachings.

• Opposition to sex and/or relationship education for primary school pupils.

• A belief that she should publicly witness to Biblical truths whenever unbiblical ideologies are promoted.

• A belief in the literal truth of the Bible.

The ET decision 

The ET accepted that the Claimant’s belief fell to be treated as a protected characteristic for the purposes of s 4 EqA 2010. However, it found that the Respondent had taken the view that reading the Claimant’s social media posts might show that the Claimant was “hostile towards the LGBT community, and trans people in particular”.

The ET dismissed her direct discrimination and harassment claim, stating that, given that her posts would reasonably lead people to conclude that she was homophobic and transphobic, the School was entitled to conclude that this could have “a negative impact in relation to various groups of people, namely pupils, parents, staff and the wider community”. The decision to dismiss the Claimant was “not on the ground of the beliefs but rather…that as a result of her actions she might reasonably be perceived as holding beliefs that would not qualify for protection within the Equality Act.”

Grounds of appeal 

The Claimant appealed the ET’s decision, on grounds including that the ET had erred in law in failing to consider the proportionality of the Respondent’s interference with her religious/philosophical beliefs. The Claimant contended that “[n]o reasonable and informed person… could conclude other than the posts [by the Claimant] were a critique of a certain approach to education, whether held by members of the LGBT community or non-LGBT secular liberals.”

HHJ Tayler permitted this matter to proceed to a full hearing and directed that the hearing should take place before a judge sitting with two lay members. The EAT administration team secured Mx C E Lord and Mr A D G Morris as lay members for the EAT panel.

On 20 May 2022, solicitors for the intervenor, the Archbishops’ Council of the Church of England, wrote to the parties bringing to their attention public statements made by Mx Lord on Twitter which related to key issues in the proceedings. The Claimant’s solicitors then wrote to the EAT, expressing concerns that these Twitter posts shows that Mx Lord had “strong views opposed to ‘gender critical’ views, which [they] equate to ‘transphobia’”. The Claimant argued that Mx Lord’s tweets gave rise to a perception of bias in relation to the issues raised by the appeal and asked that Mx Lord should recuse themselves from the hearing.

Mx Lord refused to recuse themselves, commenting that they had sought advice from both Counsel and judicial office holder colleagues on the matter. Further, Mx Lord noted that they always upheld their Judicial Oath and have had extensive experience (as a Justice of the Peace) in deciding cases involving topics which they have strongly held and expressed views. They noted that “when exercising judicial office, my decision-making follows the facts of a case and pertinent laws and nothing else” and never allowed their personal views to affect their approach as a judge.

Mx Lord noted that they have previously posted tweets on matters relating to LGBT rights, but this was by no means the only topics on which they tweet. They also commented that they have never hidden their gender identity as a non-binary person or their sexual orientation as a bi/queer person, nor their commitment to supporting LGBT causes. Despite all of this, Mx Lord believed that this would have no impact with how they would approach the appeal.

In light of the Claimant’s requests and Mx Lord’s views, the matter was set down for a hearing before Eady P.

EAT outcome 

Eady P ordered Mx Lord to recuse themselves from the hearing, as a fair-minded and informed observer could not exclude the possibility of bias.

The Claimant did not suggest that the lay member should be recused by reason of actual or automatic bias, but that Mx Lord should be recused on the basis of apparent basis. Apparent bias is defined by Lord Hope of Craighead in Porter v Magill [2001] UKHL 67 at para 103 by asking “whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”. Eady P noted that the purpose behind the law of apparent bias is to ensure that justice is not only done, but that it is perceived by the public to be done. Lord Hope further explained in Davidson v Scottish Ministers [2004] UKHL 34 at para 47 that the concept of bias “includes an inclination or pre-disposition to decide the issue only one way, whatever the strength of the contrary argument.”

The judge noted that whether a judge should be recused on the ground of apparent bias is an objective test, taking into account whether the fair-minded and informed observer considers there to be a real possibility of bias. The subjective views of the person alleging possible bias or of the person of whom potential bias is alleged is therefore unlikely to be helpful.

Eady P at para 46 commented that the fair-minded and informed observer would take into account the important background context of this appeal, such as the broader experience of lay members. Although a lay member’s broader experience might be of value when they are involved in appeals, it might also mean that some will express themselves publicly about matters relating to other roles which they hold in their working life or community. Provided that the lay member ensures that they are making such comments not in their judicial capacity, that will normally not give rise to concerns of bias.

Although Mx Lord’s comments were not understood as communicated by the lay member in their judicial capacity, Eady P took into account how the Guide to Judicial Conduct recognises that all judges (included lay members) must be alive to the difficulties that might arise from extra-judicial activities that might give rise to a reasonable apprehension of bias, which includes public statements made on social media accounts.

Although Eady P kept in mind the fact that Mx Lord has publicly taken the judicial oath, the judge also took into account the danger of unconscious bias and, where someone has publicly provided their firmly held views relevant to the case before them and that this “would be more likely to doubt that they would be able to bring an impartial mind to bear on the adjudication of that case”.

Considering that the gender recognition debate has “generated strong feelings” on both sides (see Forstater v CGD Europe [2022] ICR 1 at para 2), Eady P noted that people that share the claimant’s beliefs would consider that people holding opposing views of the debate would be intolerant of their views and seek to shut down the expression of views that are different to their own. In this case, the EAT will be adjudicating upon a case of a Claimant whose firmly held beliefs stand in direct opposition to the views that Mx Lord has forcefully and publicly expressed on Twitter. For that reason, Eady P concluded that there would remain a real possibility of unconscious bias if Mx Lord did not recuse themselves.

Comment and take aways 

Lord Reed in Starrs v Ruxton 2000 JC 208 at p253 commented that the judicial oath is not “a sufficient guarantee to exclude all legitimate doubt”, and although the judicial oath is an important protection due to its “innate gravity and the consequent weight of the obligations undertaken”, it is “very general in its terms, and it does not offer any specific guidance as to the circumstances in which it would be inappropriate for a part-time judge to sit due to the possibility of a conflict of interest existing or being perceived to exist.” Higgs further illustrates this point, as Mx Lord was required to recuse themselves despite their commitment to the judicial oath.

Higgs is a significant decision in that Eady P comments at para 55 that the best course of action for future cases “would be for a lay member to raise any potential issues…with the judge whom they are sitting on the case in question. The judge is, after all, likely to be in the best position to act as the fair-minded and informed observer”. By raising potential issues of bias to the judge, the judge will be able to advise the lay member as to the appropriate steps to be taken, as well as drawing any potentially relevant matters to the attention of the parties.

The EAT decision can be found here.