There’s a principle in the English Court System that Judges should be independent and unbiased. A judge faced with an actual bias will often recuse themselves (recuse means remove themselves from the case). There’s another type of bias, called apparent bias, which is defined as “whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”.
In the case reported below, the Employment Appeal Tribunal considered an appeal on the ground of apparent bias, relating to LinkedIn posts made by a tribunal lay member about a case which she had heard, after judgment had been given.
Following the promulgation of the tribunal’s decision, one of the lay members of the tribunal, Ms Hewitt-Gray, posted on her LinkedIn page a link to a report about the decision on Mail Online. One of Ms Hewitt-Gray’s followers on LinkedIn, K, posted a response: “This is a brilliant outcome and I am delighted that Rachael Hewitt-Gray, a trusted associate working with Umbrella HR (outside of her tribunal duties) played a vital role in this outcome.” Ms Hewitt-Gray responded: “Thank you … as you know, I really enjoy sitting at employment tribunal and being part of the Judiciary. Hearing and deciding on cases is such an honour.”
Another follower, MD, then responded: “Interesting case … A timely reminder for employers of the reputational as well as financial risks of fighting tribunal claims. Would I be right in thinking the ‘it was just banter’ argument got a good airing in this case?! My hearts sinks every time I hear that phrase!”. Ms Hewitt-Gray replied: “Thanks for engaging … interestingly, I didn’t hear the popular phrase ‘it was just banter’, this time. But the respondent’s defence was ‘I didn’t say that’.” Another follower, P, posted the one-word response replying to MD’s comment: “Brilliant”.
Aspect Windows, the respondent who lost the underlying employment tribunal, appealed against the tribunal’s decision on the basis that Ms Hewitt-Gray’s LinkedIn posts gave rise to apparent bias against it. It argued that the lay member’s response to K conveyed that she was thanking K for her congratulations on a brilliant outcome and her vital role in a brilliant outcome and was “having a dig at” Aspect Windows. It submitted that, for a tribunal member, there should be no such thing as a brilliant outcome. Their role is simply to do justice by participating in a decision as to who wins and loses each case in light of its merits.
The EAT held there was no bias.
It said that the comments were potentially heading into dangerous territory but, in fact, it ended there. The EAT concluded that “the informed observer’s hand may have moved towards the apparent bias alarm button” as they began to read this part of the LinkedIn thread, but they would not, ultimately, have set it off.
What do you think?
Generally Judges do not post on social media at all, never mind about cases. There are some ‘secret judges’ who post anonymously on Twitter, but here we have a reputable HR expert posting on Linkedin.
Personally, I agree with the EAT and what she said was fine, but it shows how important social media is in legal cases these days.