The Employment Appeal Tribunal (EAT) has held in Aspect Windows (Western) Ltd v Retter (as representative of the estate of McCrorie) that a lay member's posts on LinkedIn referring to the details and the outcome of a case that she had sat on the panel for did not give rise to apparent bias.
M was dismissed by Aspect Windows (Western) Ltd (AW(W) Ltd) in June 2019 on the ground of redundancy. M presented various claims to an employment tribunal arguing that the true reason for her dismissal was because she had complained, and then raised a grievance, about lewd and offensive comments in the office by her male colleagues. All of her claims succeeded and, following the promulgation of the tribunal's decision, one of the lay members of the tribunal, H, posted on her LinkedIn page a link to a report about the decision on Mail Online. There were then a couple of comments posted by followers of H one of which referred to "it was just banter" arguments, to which H responded that she didn't hear this particular phrase, but that the respondent's defence was "I didn't say that". AW(W) Ltd appealed against the tribunal's decision on the basis that H's LinkedIn posts gave rise to apparent bias against it.
The EAT dismissed the appeal. It noted that the test for determining whether there is apparent bias is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. Although the fact that the LinkedIn exchanges occurred after the tribunal decision had been reached, promulgated and published did not necessarily mean that the informed observer could not regard them as giving rise to a real possibility that H was biased, the EAT considered that the fair-minded and informed observer, having considered the content of the posts, would not in all the circumstances consider that H was biased. The
EAT noted that the exchange about "banter" was potentially heading into dangerous territory, but avoided it as H essentially just answered the question by factually reflecting the contents of the decision.
Take note: The decision in Retter shows that generally it will be advisable for lay members to avoid commenting on decisions they have been involved in. However, in this case, the lay member did not comment on the case but merely posted a link to a report in Mail Online because she wanted her followers to see that she had been involved in it. She did not give her opinions on the case but responded with factual details which would have been evident from reading the judgment itself.
