A Christian who was dismissed from her job because of her views on transgenderism has succeeded in her application to have an LGBT rights activist removed from her employment tribunal panel because of the possibility of bias.
Kristie Higgs is attempting to overturn a 2020 employment tribunal ruling which found she was not discriminated against when she was dismissed from a secondary school in Gloucestershire after a making several posts on her private Facebook account that her employer deemed could be seen as homophobic and transphobic.
Her appeal against the judgment in her religious discrimination case was due to be heard at the Employment Appeal Tribunal earlier this year. However, Higgs raised concerns about the suitability of appeal tribunal lay member Edward Lord, who has made public statements relating to key issues in Higgs’ case.
Lord’s Twitter profile states that they will block anyone who “[excludes] or deny trans people or are otherwise not intersectional”. Lord has also served as a trustee and advisory board member of LGBT Youth charity, Albert Kennedy Trust, the LGBT Foundation, and Pride in London.
Higgs’ legal team argued that Lord was “on the records [sic] as holding strong views opposed to ‘gender critical’ views, which [they] equate with ‘transphobia’; and in support of sex and/or relationship education at school, including teaching children about transgenderism”, which were issues at the heart of the Higgs v Farmor’s School case.
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Lord, who identifies as bi/queer and non-binary, said they had never allowed their personal views to interfere with their approach to the case in front of them, and remained committed to their judicial oath.
However, Higgs’ lawyers argued that Lord’s public statements could give rise to a perception of bias. The president of the Employment Appeal Tribunal, Mrs Justice Eady, asked for Lord’s response to the claimant’s request for them to recuse themself.
In an email reply, Lord said: “What troubles me about this respectful request for recusal is whether it would even be considered if the case related to different protected characteristics?
“If the case related to an accusation of racist conduct leading to dismissal and one of the lay members was a black Trades Union official with a history of anti-racist campaigning, would we expect them to recuse themself?
“If the conduct leading to dismissal was misogyny and one of the lay members was a woman HR director who was an active member of, say, the Fawcett Society campaigning for women’s equality, would she need to recuse herself?
“If the answer to either or both of those questions is no, then is it right that I as a bi/queer non-binary person who has from time to time spoken up, in a personal capacity, in favour of the rights of LGBT people should recuse myself in this case?”
However, in her discussion Mrs Justice Eady said: “In the present instance, none of the material drawn to my attention could have been understood as communicated by the lay member in their capacity as such. As the Guide [to Judicial Conduct] recognises, however, all those who hold judicial office (a term that includes lay members) must also be alive to the difficulties that may arise from extra-judicial activities that might give rise to a reasonable apprehension of bias.
“Specifically, the question that I have to consider is whether such an appearance of bias arises in the context of the public statements (through their Twitter account) of the lay member in this case.”
Her judgment, which she said entirely disregards the Lord’s personal protected characteristics, reads: “I am satisfied that if the lay member were to sit on the Employment Appeal Tribunal panel on this appeal, the fair-minded and informed observer could not exclude the possibility of bias.
“That being so, the claimant’s application is allowed and the lay member will be recused from this hearing and another member from the relevant panel will take their place. This matter will now be re-listed for the first available date.”
Higgs said she was relieved at the decision to recuse Lord, adding that they had made many public statements that strongly oppose the Christian beliefs at the heart of her case and fearing that their presence on the panel could lessen her chances of getting a fair hearing.
“However, I am disappointed that because of raising this issue, the full appeal hearing will be delayed again. This is another challenge, however, that I am determined to overcome as I continue to seek justice,” she said.
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Personnel Today has contacted Lord for comment.
