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Apparent Bias

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Do the comments of a tribunal on social media concerning a decision it has made give rise to apparent bias?

Not necessarily, held the EAT in Aspect Windows (Western) Ltd v Retter (as representative of the estate of McCrorie).

Following the promulgation of their decision, one of the lay members of the tribunal who had decided the case inserted a link to a report of the decision in the Mail Online on to her LinkedIn page.

A follower thereafter posted a message approving of the outcome and acknowledging her as “a trusted associate” in her HR role “(outside of her Tribunal duties)”.

The lay member replied thanking the follower, stating she enjoyed sitting at the tribunal and determining cases was an “honour”.

Another follower commented with a warning as to the financial risks of fighting claims and asking whether “the ‘it was just banter’ argument got a good airing” to which the lay member replied “I didn’t hear the popular phrase… But the respondent’s defence was ‘I didn’t say that’”.

Dismissing an appeal on grounds of apparent bias, the EAT held whilst it is possible that what a tribunal member said about a case after the event could shed light as to their approach to the hearing of it, the fair-minded and informed observer, having considered the contents of these posts, would not in the circumstances consider the lay member was bias in favour of the Claimant.

Thanks to Barnaby Large of No.18 Barristers Chambers for preparing this case summary.