Background:

The claimant was dismissed on the ground of redundancy in 2019.  She brought various claims arguing that her redundancy was brought about because she had complained and raised a grievance about offensive comments made by male colleagues.

The claim was successful.  The issue arising was that one of the Tribunal members posted a link to a new report of the case on LinkedIn.  One of the comments stated their delight with the outcome and that the member had played a vital role in the outcome.   The member responded stating that they enjoy sitting in the Tribunal and hearing cases is an honour.  The member also engaged with other comments stating that the respondent’s defence was ‘I didn’t say that’ rather than the old ‘it was just banter’ defence.  The respondent appealed the decision stating that the posts gave rise to apparent bias.   They cited that there should be no such thing as a ‘brilliant outcome’ for a member.

Outcome:

The EAT dismissed the case.   The test for bias was whether a fair-minded and informed observer, considering the facts, would conclude there was a real possibility of bias.  These principles apply to all Tribunal members as they are carrying out a judicial function.  Having regard to the content of the posts it was found that a fair-minded observer would not consider that the member was biased.  The Member had done no more than saying it was reported by a newspaper.    The member did not add anything about the outcome or substance of the case.  The posts were from others who were not involved in the case and the member’s responses did not demonstrate any particular bias to the party.   The EAT did cite that the response to a particular aspect of the case was heading in a dangerous direction but that it had ended there.  This would have gone towards the apparent bias alarm button but not as far as to press it.

Practical Guidance for Employers:

This case serves as guidance to Tribunal members rather than to employers.   Care must be taken to ensure that the responsibility that comes with being a member of the judiciary through being as Tribunal member is taken with care.  To this end, care must be taken when talking about or commenting on cases that they have adjudicated upon.  This case serves as a reminder of the test to be applied when it comes to questions of apparent bias.

The full case can be viewed here: https://www.gov.uk/employment-appeal-tribunal-decisions/aspect-windows-western-ltd-v-adam-retter-as-representative-of-the-estate-of-mrs-c-mccrorie-2023-eat-95