Mrs Kristie Higgs v Farmor's School and The Archbishop's Council of the Church of England
| Jurisdiction | UK Non-devolved |
| Judge | Mrs Justice Eady |
| Neutral Citation | [2022] EAT 101 |
| Subject Matter | Not landmark |
| Court | Employment Appeal Tribunal |
| Published date | 13 July 2022 |
Judgment approved by the Court for handing down: HIGGS v FARMOR’S SCHOOL
Page 1 [2022] EAT 101
© EAT 2022
Neutral Citation Number: [2022] EAT 101
Case No: EA-2020-000896-JOJ
IN THE EMPLOYMENT APPEAL TRIBUNAL
Rolls Building
Fetter Lane, London, EC4A 1NL
Date: 5 July 2022
Before :
THE HONOURABLE MRS JUSTICE EADY DBE, PRESIDENT
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Between :
MRS KRISTIE HIGGS Appellant
- and –
FARMOR’S SCHOOL Respondent
-and-
THE ARCHBISHOPS’ COUNCIL OF THE CHURCH OF ENGLAND Intervenor
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Mr Richard O’Dair (instructed by Andrew Storch, solicitors) for the Appellant
The Respondent did not appear and was not represented at the hearing
Ms Sarah Fraser Butlin (instructed by Herbert Smith Freehills LLP, solicitors) for the Intervenor
Mr Matthew Donmall (instructed by the Government Legal Services), Advocate to the Court
Hearing date: 22 June 2022
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JUDGMENT
This judgment was handed down by the Judge remotely by circulation to the parties' representatives
by email and release to The National Archives.
The date and time for hand-down is deemed to be 10:30am on 5 July 2022
Corrected NCN Number
Judgment approved by the Court for handing down: HIGGS v FARMOR’S SCHOOL
Page 2 [2022] EAT 101
© EAT 2022
SUMMARY
Practice and Procedure – application for recusal of lay member – fair hearing – appearance of bias
An application for recusal was made on the basis that a lay member of the Employment Appeal
Tribunal panel had made a number of public statements on Twitter that expressed firmly held views
on issues relevant to the appeal, giving rise to the appearance of bias.
Held: allowing the application
Applying the test of the fair-minded and informed observer (Porter v Magill [2002] 2 AC 357 HL),
and having regard to the relevant context (which included the nature of the debate relating to the
issues raised by the appeal and an assessment of the task the Employment Appeal Tribunal would be
required to undertake in determining this matter), there was a real ground for doubt in the lay
member’s ability to approach this matter with an impartial and entirely open mind. That being so,
the lay member would be recused from hearing this appeal.
Guidance for future cases provided: a lay member should raise any potential issues of this nature
with the judge with whom they are sitting on the case in question; the judge would be best able to
act as the fair-minded and informed observer, with an understanding of the issues to be
determined.
Judgment approved by the Court for handing down: HIGGS v FARMOR’S SCHOOL
Page 3 [2022] EAT 101
© EAT 2022
The Honourable Mrs Justice Eady DBE, President:
Introduction
1. This is my Judgment on the application for the recusal of the lay member, Mx C E Lord
OBE, from the hearing of this appeal.
2. In giving this Judgment, I refer to the parties as the claimant and respondent, as below.
This is a hearing on the claimant’s application dated 23 May 2022; the claimant has
appeared by her counsel, Mr O’Dair. By email of 27 May 2022, those acting for the
respondent confirmed they had no objection to the claimant’s proposal regarding Mx
Lord’s recusal; the respondent otherwise takes a neutral position and was not represented
at the recusal hearing. The intervenor has also taken a neutral position on the application
but attended the hearing by counsel, Ms Fraser Butlin. Mr Donmall appeared as Advocate
for the Court, having been so instructed after the Employment Appeal Tribunal requested
the Attorney General to make such an appointment on this application.
The Factual Background and the Underlying Proceedings and Appeal
3. The claimant had been employed by the respondent since 2012; at the material time, she
was working as a pastoral administrator and work experience manager.
4. On 26 October 2018, the head teacher of the respondent was sent an email from someone
outside the school making a complaint about a Facebook post the claimant had made
(posting under her maiden name). This was a re-posting of a piece written by someone
else, which concerned teaching in schools relating to same sex relationships, same sex
marriage and to gender being “a matter of choice”, to which the claimant had added
“Please read this! They are brainwashing our children!” and an exhortation to sign a
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