Members of Employment Tribunal Recused for Apparent Bias on Gender Issues

Most of the time, Employment Appeal Tribunal (EAT) judges hear cases alone. However, in particularly important cases, the EAT judge will be joined by two appointed “lay members”; one with experience as a representative of workers, and the other with experience as a representative of employers.

Judges and lay members may be recused from hearing a case where there is “apparent bias” – meaning that a fair minded and informed observer would conclude that there was a real possibility of the individual in question being biased. This test for apparent bias was devised in Porter v Magill.

In the case of Higgs v Farmor’s School, Mrs Higgs made a post on Facebook criticising the teaching in schools about same-sex relationships and gender being a matter of choice. Her employer, Farmor’s School, received a complaint alleging that this post demonstrated that Mrs Higgs held homophobic and transphobic views. Following an investigation, Mrs Higgs was dismissed for gross misconduct. She then issued tribunal proceedings, claiming that she has been directly discriminated against and harassed, on the grounds of religion or belief.

The Employment Tribunal held that a Christian employee’s belief that an individual cannot change their gender was worthy of respect in a democratic society, and therefore protected under the Equality Act 2010. However, it also found that Mrs Higgs had not been harassed or discriminated against because of her protected beliefs, and that her dismissal was due to her use of inflammatory language in the Facebook post. Mrs Higgs appealed, and it was determined that the full EAT hearing should take place before a judge and two lay members.

On 20 May 2022, the Archbishops’ Council of the Church of England wrote to the parties to inform them of tweets by one of the lay members. These tweets included the lay member opposing gender critical views and supporting the position of transgender affirming education in primary schools, and demonstrated the lay member’s association with transgender campaigning group Mermaids and the LGBT Foundation. Mrs Higgs applied to the EAT for the lay member to be recused on the basis of apparent bias.

Applying the Porter v Magill test, the EAT judge concluded that a “fair-minded and informed” observer would consider that there was a “real possibility” of bias, particularly given the “highly polarised” matter of gender identity. For these reasons, the first lay member was recused in July 2022.

Then, on the evening before the first day of the appeal hearing, Mrs Higgs applied to recuse the second lay member, again on the grounds of apparent bias. The second lay member had been Assistant General Secretary of the National Education Union, at a time when the Union had publicly favoured making education on same-sex relationships and trans issues mandatory in primary schools.

The EAT judge again applied the test from Porter v Magill, and again found that a fair-minded and informed observer would conclude that there was a potential appearance of bias. A reasonable observer might fairly perceive that someone who held a senior position in the NEU at the relevant time would, whether unconsciously or otherwise, seek to maintain the stance held by the Union, and therefore regard Mrs Higgs’ case with disfavour. The substantive appeal will now be heard by the EAT judge alone.

While it is unusual for both lay members to be recused in a single case, Higgs is an important reminder of the rule of apparent bias – namely that the existence of actual, provable bias does not need to be demonstrated, and that it is the “fair-minded and informed observer” test from Porter that will be applied instead. If you are involved in tribunal proceedings, it might be worth obtaining legal advice on whether an argument of apparent bias could be raised.

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