How I helped remove a biased member of an Employment Tribunal

Kristie Higgs was dismissed from her job as a pastoral assistant at a secondary school in 2018 for gross misconduct. What exactly was the misconduct? Well, it was nothing to do with anything she had actually done in the school. Her employment record of seven years at the school was exemplary. What Kristie did that resulted in her dismissal was post on Facebook two posts raising concerns about the promotion of transgenderism and about sex education lessons in primary schools.

The first post encouraged friends and family to sign a petition challenging the government's plans to introduce Relationships and Sex Education (RSE) lessons to children in primary schools. A similar petition obtained 115,000 signatures prompting a debate in parliament.

The second post shared an article raising concerns about the promotion of transgender ideology in American schools. The article critiqued the LGBT 'No Outsiders' books which Kristie had discovered were being introduced in her son's Church of England primary school. Kristie added her own comment: "This is happening in our primary schools now."

Employment Tribunal

The concerns which Kristie raised are shared by thousands of parents across the country and are a matter of public debate to this day. Nevertheless, after an anonymous complaint about her posts to the school where she worked, she was initially suspended pending an investigation, and then subjected to a six-hour disciplinary hearing in which her posts were compared to 'pro-Nazi' views, before being summarily dismissed for gross misconduct.

Kristie's case was heard by the Employment Tribunal in October 2020, where, astonishingly, the Tribunal agreed with the school's position that her dismissal was justified. This was in spite of the court recognising that Kristie's Christian beliefs should be treated as a protected characteristic and did not equate to homophobia or transphobia.

Permission to appeal

Kristie was given permission to appeal her case, scheduled to be heard initially in March. Due to an administrative error, the case was listed to be heard by a judge alone without two lay members as had been directed. Usually lay members are appointed to panels on a strictly rotational basis, however in this case the judge requested that an email be sent out to all lay members to see if any were available to hear this case on the allotted dates. Within an hour of that email two lay members had responded, one of them, unknown to us at the time, was a notorious LGBT activist by the name of Edward Lord.

The case was then delayed until June, and in the meantime the Christian Legal Centre was alerted to the fact that some of Edward Lord's tweets showed that he was actively promoting transgenderism. I was alerted to this, and I have been following Kristie's case closely and have great sympathy for her. When I became aware that a member of the panel had tweeted in support of transgenderism, I decided to investigate myself.

Edward Lord's tweets

I had not heard of Edward Lord before, so I was surprised to find that I am blocked from viewing his Twitter account! This did not deter me for very long, however, as public tweets are publicly viewable, so I quickly obtained access to view his tweets.

The first thing you are faced with on his Twitter account is his pinned tweet which says:

My Twitter blocking policy: I will block anyone who tweets (or likes/retweets) abuse to or about me, my friends, my colleagues, or marginalised communities. This includes those who claim to be feminists but exclude or deny trans people or are otherwise not intersectional.

How tolerant! Mr Lord openly says he will block anyone who doesn't agree with him on transgenderism. Or indeed, anyone who is "not intersectional" which presumably includes most people? If Mr Lord is so openly intolerant of people who may disagree on transgenderism, then how is he likely to view Kristie Higgs's objection to promoting transgenderism in schools? This tweet alone, and the prominence he gives it as his pinned tweet, raised serious questions about his suitability to be on the panel for Kristie's hearing.

I then scanned through some of his other tweets, and it wasn't difficult to find more examples of how Mr Lord openly supports promoting transgenderism in schools – the very thing that Kristie was objecting to and ultimately dismissed for saying.

Here's one example:

That tweet speaks directly into what Kristie was dismissed for.

Here's another:

Once again, that is directly about promoting LGBT ideology in schools.

Yet another tweet reveals that he was a trustee of the LGBT Foundation, and actively involved in supporting the charity Mermaids which pushes transgender ideology in schools.

My witness statement

I compiled a short list of several tweets like these and emailed them to our legal team, suggesting that Mr Edward Lord was clearly an LGBT activist who could hardly be regarded as neutral on the issues around Kristie's case. The legal team then asked me to sign a witness statement to the effect that here were some tweets I found when looking at Edward Lord's Twitter account.

This witness statement was accepted by the judge and was crucial in demonstrating that Mr Lord could hardly be regarded as an unbiased member of the panel in this case.

Mr Lord responds

Remarkably, when Mr Lord was asked about this by the judge, he did not recuse himself, but attempted to defend his ability to be unbiased in the case. He claimed that he had consulted with Counsel and judicial officeholders about whether there was a conflict – though he did not consult with the presiding judge in the case.

On further inquiry about the tweets that I found, Mr Lord stated:

"The extracts from my Twitter account are accurate and represent views I have expressed over recent years on matters relating to LGBTQ+ rights."

He continued:

"I have never hidden either my gender identity as a non-binary person or my sexual orientation as a bi/queer person, nor indeed have I ever hidden my commitment to supporting the rights of LGBTQ+ people. . . .

That said, I reiterate the commitment made in my previous submission that my publicly expressed views - none of which relate to the current case - would have no impact in my approach to this or any other case. I remain fully committed to acting within the context of my judicial oath and to judging each case on the merits of the facts and applicable law and on no other basis."

Perceived bias

I think any fair-minded observer would disagree with Mr Lord on whether his publicly expressed views relate to the case. Some of them are directly in opposition to the views for which Kristie was sacked.

In the same way, a fair-minded observer would surely disagree with Mr Lord that he would be able to hear this case without any bias. In the end, this is what the judge concluded:

For the reasons I have given, 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.

Referring to Mr Lord

Throughout the judgment, Mr Lord is referred to as "Mx Lord", for example:

"The claimant asked that Mx Lord should recuse themselves from hearing this matter as a lay member."

This means that the judgment is endorsing a fiction about who Mr Lord is. During the hearing, barristers were requested to refer to Lord with gender neutral pronouns, though in the event, even Lord's own counsel failed to do this consistently.

It is becoming quite alarming how people in court are required to endorse fictitious or delusional identities. The fact that Lord's own counsel referred to Lord as "he" several times belies the obvious fiction of his non-binary identity.

Justice done, and delayed

The really extraordinary thing about this case is that Mr Lord thought that there would be no problem with perceptions of bias for him to be on the panel. Is that really conceivable? One does wonder whether he was particularly keen to be on this case, given that he responded within one hour of the email asking about availability.

The fact that Mr Lord is now recused is good news, though it is not something that should ever have needed to come before a judge. What this now means is that Kristie's appeal hearing is delayed once again. We continue to pray for justice to be done for Kristie. At least an LGBT activist will now not be involved in that decision.

Tim Dieppe is Head of Public Policy at Christian Concern.