ET Lay Member’s LinkedIn Posts Give Rise to Allegation of Apparent Bias

Anyone who serves in a judicial capacity must exercise the greatest care in their use of social media. The point was made by the case of a lay member of an Employment Tribunal (ET) whose posts on LinkedIn gave rise to an allegation of apparent bias.

The member was one of an ET panel of…

Jul 21, 2023

The member was one of an ET panel of three which upheld a woman’s complaints of sexual harassment, sex discrimination, victimisation and unfair dismissal against her former employer. The company was ordered to pay her more than £86,000 in compensation.

Following publication of the ET’s decision, the member used her LinkedIn profile to post a link to a media article about the case. The post garnered some comments to which she responded. In challenging the ET’s decision, the company asserted that the LinkedIn thread created an appearance of bias on her part.

The company contended that, when read as a whole, the thread suggested that she was personally invested in the outcome of the case. The overall impression, it argued, was that she was having a dig at the company and viewed the result of the case as a cause for celebration.

Ruling on the matter, the Employment Appeal Tribunal (EAT) emphasised that there was no allegation of actual bias. It was also no part of its role to express a view as to whether what the member did amounted to misconduct in her judicial role. The sole question was whether a fair-minded and informed observer in possession of all the facts would consider that there was a real possibility of bias.

The fact that the posts were made after the ET gave its decision was not necessarily decisive. It was not logically impossible that what a judge or lay member says about a case after it has ended may cast light on how they approached the matter when they were hearing it. That was one reason why they should generally refrain from commenting extra-judicially on their own decisions.

In dismissing the appeal, however, the EAT found that the member’s initial post of a link to the media piece, without further comment, did not give rise to an appearance of bias. In responding to another post, she did pass comment on one aspect of the substance of the case and, by doing so, she headed into potentially dangerous territory. However, on reading that part of the thread, a fair-minded and informed observer would have stopped short of pressing the apparent bias alarm button.

Uber Drivers Are Workers – Supreme Court Finally Settles the Argument

Tightly defined controls that online private hire vehicle operator Uber exerts over drivers who use its app proved decisive in the Supreme Court’s ruling that they are ‘workers’, as defined by the Employment Rights Act 1996, and are thus entitled to receive the National Minimum Wage, paid leave and other benefits. Uber has, without success, fought its way through the tribunal and court systems in an attempt to establish that its drivers are self-employed contractors, in business on their own…

Service Charges Dispute Focuses on Report of ‘Intolerable’ Fire Risk

Tenants are only obliged to pay service charges that have been reasonably incurred. That principle was the focus of a guideline case concerning two apartment blocks which, according to an expert report, posed an intolerable fire risk. Previous fire inspections of the blocks had uncovered no serious problems so that the report, which found combustible materials in their external walls, came as a bolt from the blue. The landlord’s response was to place a 24-hour waking watch on the blocks as an…

Whistleblowing and the Importance of Causation – Guideline EAT Ruling

To succeed in a whistleblowing claim it is necessary to show not only that there has been a protected disclosure and a detrimental act but also that there is a causal link between the two. As an Employment Appeal Tribunal (EAT) ruling made plain, that last element is in many cases the hardest to establish. In upholding a teacher’s whistleblowing claim, an Employment Tribunal (ET) found that she had made protected disclosures about practices within the nursery school where she worked. It also…