The Claimant was dismissed for gross misconduct after she posted comments on Facebook which the Respondent described as homophobic and prejudiced against the LGBT community. Bringing her claims under the Equality Act 2010, the Claimant complained that these acts amounted to direct discrimination because of her religion or belief and/or harassment relating to her religion or belief. The ET dismissed her claims, concluding that her dismissal was not on the ground of the beliefs but rather for a completely different reason, namely that as a result of her actions she might reasonably be perceived as holding beliefs that would not qualify for protection within the Equality Act. The Claimant appealed to the EAT. Before the hearing started, the Claimant’s solicitors drew attention to three specific tweets made by one of the lay members (who identifies as a non-binary person and whose sexual orientation is bi/queer) and raised the concern that these publicly stated views could give rise to a perception of bias in relation to the issues raised by the appeal. The Claimant asked that the lay member should recuse themselves from hearing this matter.

The EAT allowed the recusal 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 EAT 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.