Lay Member Removed from EAT Panel Following Posts on Social Media
In Higgs v Farmor's School, an LGBT activist has been removed as a lay member of an EAT panel, in light of their social media posts on the topics relevant to the case.
Discrimination Claims
The claimant, Mrs Higgs, is a Christian who was dismissed from her job at a school after making several posts on her private Facebook account which were considered by her employer to be homophobic and transphobic. The posts were critical of teaching in schools about same-sex relationships, same-sex marriage, and gender being a matter of choice.
Mrs Higgs brought claims of direct discrimination and harassment on the grounds of her religious beliefs. The Tribunal found her beliefs were protected beliefs but that she had not been discriminated against because of them. Rather, the Tribunal found she was disciplined and dismissed because of her Facebook posts, and the fact they could be seen as homophobic and transphobic.
Mrs Higgs is appealing against the Tribunal outcome. In advance of the Employment Appeal Tribunal (EAT) hearing, Mrs Higgs raised concerns about one of the lay members of the EAT panel, who had made public statements on social media which go to the key issues in Mrs Higgs' case. Amongst other things, the statements indicated the lay member's strong personal opposition to gender critical views, which they equated with transphobia, and support for the provision of transgender affirming education in primary schools. Mrs Higgs made an application for the lay member to be removed (recused) from the panel.
Lay Member Removed From the Panel
Mrs Higgs was successful in her application. The EAT acknowledged the lay member's social media statements had been made in a personal capacity, and they had also taken the judicial oath to 'do right to all manner of people'. However, the EAT acknowledged the significance and contentiousness of the gender critical debate. Given the nature of the lay member's tweets, and the issues in Mrs Higgs' case, the EAT considered the fair-minded and informed observer could not exclude the possibility the lay member might be biased in respect of the appeal.
What Will Happen Next in the Case?
The EAT hearing will now be re-listed for the next available date, with a new lay member appointed to replace the recused member.