Panel member posting result on LinkedIn did not show bias, rules judge

A lay member of an employment tribunal did not give rise to apparent bias despite her posting a link on social media to a report of her case, an appeal tribunal has ruled.

Rachael Hewitt-Gray had been one of three members who had awarded a claimant more than £86,000 after upholding complaints of victimisation, harassment and unfair dismissal.

She then posted on her personal LinkedIn page a Mail Online link to a report of the decision saying she had sat on the case as a lay member. Followers responded to the post and in a few cases Hewitt-Gray responded to those comments.

The defendant in the claim, a double glazing company, appealed on the basis that the LinkedIn posts gave rise to apparent bias against it.

His Honour Judge Auerbach dismissed the appeal, saying the fair-minded and informed observer would not consider Hewitt-Gray to be biased.

‘Whatever else they might make of the wisdom or appropriateness of Ms Hewitt-Gray having posted the link to the Mail Online article on LinkedIn in the first place, which appears also then to have triggered the responses that were addressed to her and to which she replied – the impartial and informed observer would not infer from this material that there was a real possibility that Ms Hewitt-Gray had been biased towards the claimant in this case, by prejudging the matter, or deciding it other than on its merits.’

The appeal tribunal heard that the claimant in the case had been successful after the tribunal accepted her account of sexual swearing and crude and offensive discussions, and her submission that her redundancy was based on having raised grievances.

After being reported in the media, Hewitt-Gray posted a link with the words: ‘The case that I sat on as a Lay Member on Employment Tribunal is reported on Main [sic] on line today.’

One follower responded to say this was a ‘brilliant outcome’ and praised Hewitt-Gray’s role in it. The panel member thanked this follower, adding: ‘I really enjoy sitting at Employment Tribunal and being part of the Judiciary. Hearing and deciding on cases is such an honour.’

Another response from a solicitor thanked Hewitt-Gray for sharing, describing it as a ‘timely reminder for employers’ and asking whether the defence was the ‘it was just banter argument’.

Hewitt-Gray replied: ‘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’.’

The double glazing company made no allegation of actual bias but said Hewitt-Gray’s response suggested she was ‘personally interested’ in the outcome. It was equivalent to a solicitor or a barrister celebrating or promoting a victory, and while that was permissible for a representative, it was not for a member of the adjudicating panel.

The respondent claimant said the mere posting of the Mail Online link showed no real possibility of bias and her responses to other people’s comment were simply factually accurate.

The judge said the informed observer would know that LinkedIn was a site geared to professional networking, and she had done no more in her opening post than refer to the fact she sat on the case.

Had the panel member written that she was delighted with the outcome then there may be a possibility of the perception of bias, but she had not written this, or anything similar. Thanking people for their responses did not convey an endorsement of those assessments. While the exchange on workplace banter was ‘potentially heading into dangerous territory’, the judge noted that it ended there and while the informed observer’s hand ‘may have moved towards the apparent bias alarm button, they would not, ultimately, have set it off.’

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