Aspect Windows (Western) Ltd v Retter [2023] IRLR 816
The EAT dismissed the appeal, determining that the lay member's LinkedIn posts did not show apparent bias against the company.
The litmus test for apparent bias is if a fair-minded and informed observer, upon reviewing the facts, would conclude a genuine likelihood of tribunal bias (Magill v Porter).
To preserve the integrity of their decisions, judges and tribunal members are generally advised against publicly commenting on their rulings outside of official venues.
While the general public often engages with online content in a cursory manner, the "fair-minded and informed observer" is expected to delve deeper and understand such content more comprehensively.
Potential judicial misconduct does not inherently signify apparent bias. It's essential to consider the context and specifics of each case when discerning bias.
Facts and Application of the lawl to those facts:
The claimant pursued action against a company on grounds of sex discrimination, harassment, and alleged dismissal due to her objections to inappropriate remarks from male colleagues. The employment tribunal ruled in her favor.
After the hearing, a tribunal lay member shared a news article about the case on LinkedIn. This post, along with subsequent interactions involving an HR executive and a solicitor, stirred debate about the member's role and the case's details.
This digital exchange drove the company to lodge an appeal. They argued the lay member's online engagement demonstrated potential bias, an indication of personal stake in the case outcome, hints of professional self-promotion, and possible criticism directed at the company.
Upon evaluation, the EAT found that the lay member's online interactions did not overtly suggest bias towards the company. The fair-minded and informed observer, after thorough examination, would not deem the posts as biased. The lay member's comment to the solicitor was considered close to bias territory but didn't conclusively trigger an apparent bias alarm.
It was highlighted by the EAT that actions which might be labeled as judicial misconduct don't always correspond to apparent bias. Determining bias requires a comprehensive evaluation of the context and unique details of every case.
For parties looking to appeal from the Employment Tribunal to the Employment Appeal Tribunal, this case underscores the nuance in discerning bias in digital interactions.
