Aileen McColgan KC discusses toxic debates and biased judges in two employment law cases. The podcast explores recusal to avoid bias, challenges of alleging bias, and trade union involvement in employee rights cases. They also delve into the concept of bias and apparent bias in the Administrative Tribunal, discuss the implications of judges using social media, and explore the distinction between apparent bias and actual bias cases in the judicial system.
The case of Higgs v Farmor’s School highlights the challenges in securing an objective hearing when views on gender critical beliefs are divided.
The Rolek case emphasizes the importance of judges maintaining a fair and impartial stance throughout the proceedings to avoid apparent bias.
Deep dives
Case 1: Higgs - Apparent bias in EAT on gender critical beliefs
The case of Higgs involved a claimant who had been dismissed from a school after expressing stringent gender critical views on social media. The claimant raised concerns about the bias of an EAT lay member who held a senior position in a teaching union supportive of views she disagreed with. The EAT considered whether there was a perception of bias and concluded that a fair-minded observer might question the neutralmind of the lay member due to the union's strong stance on the issue. This case highlights the challenges in securing an objective hearing when views on gender critical beliefs are divided.
Case 2: Rolek - Allegations of apparent bias by an employment tribunal judge
The Rolek case involved an application alleging bias against an employment tribunal judge based on their behavior during the hearing. The judge made comments perceived as unpleasant and demonstrated a preliminary view on a key issue before submission of evidence. The Employment Appeal Tribunal (EAT) considered whether a fair-minded observer would view the judge's conduct as indicating a lack of impartiality. While not every allegation was upheld, some aspects crossed the line, leading to a finding of apparent bias. This case emphasizes the importance of judges maintaining a fair and impartial stance throughout the proceedings.
Social Media and Judicial Impartiality
The podcast also discussed the potential conflict arising from judges and lay members expressing their views on social media. The prevalence of part-time judges and vocal social media use raises concerns about potential bias. Although these cases focused on apparent bias rather than actual bias, the responsible use of social media by those aspiring to sit on the bench is advised. Balancing the transparency of judges' predispositions with ensuring a fair hearing remains a complex issue for the legal system to navigate.
Aileen McColgan KC talks to Daniel Isenberg about toxic debates, conflicting beliefs and opinionated judges in Higgs v Farmor’s School [2023] EAT 45 and Rolec Ltd v Georgiou [2023] EAT 46. When must a judge be recused to avoid the appearance of bias?