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 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.