Second Employment Appeal Tribunal Lay Member Recused Because of Apparent Bias

What Is the Background to the Case?

In Higgs v Farmor's School, Mrs Higgs was dismissed from her job at a school after posting on social media about views which her employer considered were homophobic and transphobic. She brought claims of direct discrimination and harassment on the grounds of her religious beliefs. The Tribunal found that whilst her beliefs were protected, she was not discriminated because of them. Mrs Higgs appealed to the EAT.

The EAT hearing was to be heard by a panel comprising one judge and two lay members. Mrs Higgs successfully applied for one of the lay members to be removed from the panel when it transpired that they had themselves used social media to publicly express their opposition to gender critical views and support for transgender affirming education in primary schools.

Following the recusal of the first lay member of the appeal panel, a new lay member was appointed and the appeal was re-listed to take place in March 2023.

What Was the Basis for the Second Recusal Application?

The night before the re-listed EAT hearing was due to start, Mrs Higgs submitted a new recusal application. The application focused on the fact that the second original lay member of the appeal panel, Mr Morris, had previously been the Assistant General Secretary of the National Education Union (NEU). At the time Mr Morris held this position, the NEU had taken a strong public stand in favour of making relationship and sex education mandatory in primary schools, including teaching children about same sex relationships and trans issues. Mr Morris had not publicly expressed any views about the issues in the case. However, Mrs Higgs' position was that given his former position within the NEU, he could not be seen as an impartial judge for the purpose of this appeal.

What Was the Outcome of the Application?

The application focused on Mr Morris' 'apparent bias'. The relevant question to determine apparent bias is "whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased". In practical terms, this means that if there are real grounds for doubt, the matter must be resolved in favour of recusal.

The judge took into account the fact that Mr Morris has taken the judicial oath and had not publicly expressed any views on the issues relevant to the appeal. Nevertheless, there was a danger of unconscious bias and the judge found that a reasonable observer might legitimately perceive that someone who held Mr Morris' senior position at the NEU would, even if unconsciously, seek to maintain the position that had been adopted by the organisation. For this reason, Mr Morris had to be recused from the panel. It was agreed that the appeal would proceed with the judge sitting alone.

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