In a recent Employment Appeal Tribunal case, Aspect Windows (Western) Ltd v Retter (as representative of the estate of McCrorie) [2023] EAT 95, the Appeal Tribunal considered whether LinkedIn posts made by a lay member involving a case that she had presided over gave rise to ‘apparent bias’.
The Tribunal originally heard claims relating to Mrs McCrorie’s dismissal, which she claimed was because of her making complaints and raising a grievance about lewd and offensive comments by her male colleagues. Mrs McCrorie’s claims succeeded. Following the Judgment, one of the lay panel members, Ms Hewitt-Gray, posted a link to a news report about the Judgment on her LinkedIn profile. In response, Ms Hewitt-Gray’s followers posted a number of comments to which she replied. One of her followers commented that it had been a great outcome and referenced Ms Hewitt-Gray having played a vital role in the brilliant outcome. Ms Hewitt-Gray said that ‘hearing and deciding on cases is such an honour’ and in response to a question ‘Would I be right in thinking the ‘it was just banter’ argument got a good airing in this case?! My heart sinks every time I hear that phrase!’, Ms Hewitt-Gray replied ‘interestingly, I didn’t hear the popular phrase ‘it was just banter’, this time. But the respondent’s defence was ‘I didn’t say that’.
The Appeal
Aspect Windows appealed on the basis that Ms Hewitt-Gray’s comments gave rise to apparent bias in the tribunal’s decision-making. It was argued that her replies conveyed that she was acknowledging her role in a ‘brilliant outcome’ and ‘having a dig’ at the respondent, and that, for a lay tribunal member, there should be no such thing as a ‘brilliant outcome’. They argued that Ms Hewitt-Gray’s post amounted to self-promotion of a tribunal Judgment, and that there was a sense that she was celebrating her role to play in the outcome, which would be appropriate for a solicitor or representative, but not for a member of the judiciary.
Conclusion
The EAT dismissed the appeal. Applying the principle of apparent bias set out in Porter [2001] UKHL 67, ‘whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased’, the EAT held that the fact that Ms Hewitt-Gray had posted about the outcome after the Judgment could give rise to a real possibility that Ms Hewitt-Gray had been biased. However, having regard to the content of the posts, the EAT found that a fair-minded and informed observer, would not consider that Ms Hewitt-Gray was biased. She had not written any post to the effect of stating that she was pleased with the outcome or that it was ‘brilliant’ – that had come from her followers – and the EAT did not consider that Ms Hewitt-Gray’s responses conveyed an endorsement of the same assessment of the outcome. In respect of Ms Hewitt-Gray’s reply on whether ‘banter’ was used as a defence by the respondent, the EAT found that whilst this was heading towards dangerous territory, it did not go so far as meeting the test for apparent bias.
In the EAT’s words, ‘the informed observer’s hand may have moved towards the apparent bias alarm button’, but it had not, according to the EAT, been set off.
