Higgs v Farmor’s School (101): EAT 5 Jul 2022

EAT Lay Member Recused – LBGT Views for case

Practice and Procedure – application for recusal of lay member – fair hearing – appearance of bias
An application for recusal was made on the basis that a lay member of the Employment Appeal Tribunal panel had made a number of public statements on Twitter that expressed firmly held views on issues relevant to the appeal, giving rise to the appearance of bias.
Held: allowing the application
Applying the test of the fair-minded and informed observer (Porter v Magill [2002] 2 AC 357 HL), and having regard to the relevant context (which included the nature of the debate relating to the issues raised by the appeal and an assessment of the task the Employment Appeal Tribunal would be required to undertake in determining this matter), there was a real ground for doubt in the lay member’s ability to approach this matter with an impartial and entirely open mind. That being so, the lay member would be recused from hearing this appeal.
Guidance for future cases provided: a lay member should raise any potential issues of this nature with the judge with whom they are sitting on the case in question; the judge would be best able to act as the fair-minded and informed observer, with an understanding of the issues to be determined.


The Honourable Mrs Justice Eady DBE, President


[2022] EAT 101




England and Wales


Updated: 16 July 2022; Ref: scu.679139