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Tweeting Lay Tribunal Member Recused From Hearing Controversial Appeal

There is nothing at all wrong with judicial office holders having strongly held social or political views. However, as one case showed, where they are expressed publicly, they may give rise to an appearance of bias in the eyes of a reasonable bystander (Higgs v Farmor's School).

The case concerned a lay member of the Employment Appeal Tribunal (EAT) who had made a number of public statements via Twitter. She was due to sit on a panel that would hear an appeal by a woman who believed neither in gender fluidity nor that a person can change their biological sex or gender.

The woman asserted, amongst other things, that she had been subjected to direct discrimination by her employer because of her religion or philosophical beliefs. She was opposed to sex or relationship education in primary schools and believed in, amongst other things, the literal truth of Biblical teachings relating to gender.

On the basis of the lay member's tweets, the woman argued that she should stand down from hearing the appeal. The lay member stated that she had sought legal advice and consulted judicial colleagues before concluding that she could try the case fairly in accordance with her judicial oath. The matter was referred to the President of the EAT for determination.

Ruling on the matter, the President emphasised that none of the tweets could be understood as having been communicated in the lay member's judicial capacity. She had not sought to hide her views and a fair-minded and informed observer would work on the assumption that her longstanding commitment to her judicial oath would mean that she would strive to achieve fairness.

He noted, however, the highly polarised nature of the public debate regarding some of the issues raised in the appeal. The woman had made plain her own firmly held beliefs, which seemed to stand in direct opposition to views that had been forcefully and publicly expressed by the lay member. On the basis that a fair-minded and informed observer could not exclude the possibility of unconscious bias, the lay member was recused from the panel that would hear the woman's appeal.

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