United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS NAOMI CUNNINGHAM (of Counsel) Instructed by: North Kensington Law Centre 74 Golborne Road London W10 5PS
For the Respondent	MS ESTHER MORRIS (of Counsel) Instructed by: Bailey & Croft St James House 53-55 Spital Street Dartford DA1 2EB

SUMMARY

Practice & Procedure: Bias, Misconduct & Procedural Irregularity

One of the lay members appeared to be asleep. Parties raised the issue with Tribunal and then agreed to continue the hearing. The lay member then appeared to resume his slumbers. No further objection made at the hearing but the losing employee, then raised issue as ground of appeal. Re-hearing ordered following Stansbury v Datapulse plc.


 


HIS HONOUR JUDGE REID QC

1. This is an appeal against a decision of the London (Central) Employment Tribunal dated 23 March last year by which they dismissed a claim that the Claimant had been unfairly dismissed. There were two sets of grounds of appeal, if I can put it that way. The first related to the apparent, so the Appellant said, deficiencies in relation to various matters of law in the decision; and the second related to a procedural matter, namely that it was said that one member of the Tribunal had been asleep or appeared to be asleep for considerable parts of the hearing.
2. In the light of the view that we take of the second of those points, it is not necessary for us to make any findings in relation to the first part of the appeal. Indeed, since the matter will have to be dealt with by a fresh hearing before a different Tribunal, the less we say about it, the better, save to say that we hope that if the matter is not compromised and does go to a further hearing, the decision on the next occasion will be substantially fuller than the decision was on the first occasion.
3. So far as the sleeping point is concerned, the factual background is that Counsel for the Respondent noticed that one of the wing members appeared to have been asleep for a significant part of the evidence during the second morning of the hearing and after discussion at lunch time, Counsel for both parties agreed that the matter would be raised jointly with the Tribunal immediately before resuming. Counsel asked to see the Tribunal briefly in the absence of parties and witnesses. The Tribunal agreed. Counsel for the Claimant explained the concern that both Counsel shared. The Chairman then asked the wing member in question if he was well. He confirmed that he was. The Chairman then asked Counsel whether they were willing to continue or wished to ask for the hearing to be abandoned and both confirmed that their respective clients were willing to continue.
4. Had matters stopped there, we would have taken the view that the parties had expressed their agreement, whatever its deficiencies, to the continuation of the hearing and neither party could thereafter have complained about any inadequacy in the hearing down to that point. The problem is that thereafter, there were further occasions during which it appeared that the same wing member was again asleep. It is said that he continued to turn to the correct page in the bundle when directed by Counsel. Whether or not that was, in fact, what he was doing or whether this was, in effect, the knee-jerk reaction that many a school child and, indeed, I suspect, a number of junior Counsel have learned over the years, we do not know, but he certainly gave sufficient appearance of being asleep for it to be assiduously noted by a pupil barrister who was present. Her detailed notes of the periods of apparent slumber were made available to Counsel for the Appellant at the conclusion of the hearing before the decision was given, but at that stage no step was taken to have the matter taken up again before the Chairman.
5. In due course, the Claimant having lost, the point is raised as the second point of this appeal and that being so, in the usual way the Chairman and the lay members were invited to comment. The Chairman has, in fact, now retired but she did set out comments in which she said Counsel pointed out the problem with the wing member and she asked that wing member if he was alright, and he was willing to continue. Counsel was given the option of continuing or starting again with a new panel. They both agreed that they should continue. So far as later matters are concerned, she says that she did not notice that the wing member was asleep as he was not in her line of vision and he made no sound; but he asked one question of the Respondent's Treasurer.
6. The other wing member had this to say: that the wing member in question

"does tend to sit with his eyes closed or seemingly closed. Even after the comments from the parties, this does not change which led me to think that this was his way of concentrating on the proceedings. In our discussions as a panel, I did not form any impression that he had missed an important point of evidence".

Perhaps surprisingly, there is no comment whatsoever from the wing member said to have been asleep.

7. Against that background, we have been referred to the decision of the Court of Appeal in Stansbury v Datapulse plc & Another [2004] ICR 523. That case usefully deals with the earlier decisions relating to members of the tribunal or judiciary appearing to be asleep. The bottom line, it seems to us, is that the matter turns on what is reasonable in the particular circumstances of the case. One circumstance is to consider whether an objection should have been raised at an earlier stage. We have already indicated that so far as any passage of supposed sleep before the matter was raised with the Tribunal Chairman, that is, in our view, now "water under the bridge". There was an informed decision by both Counsel and their clients (in full knowledge of what they had perceived) to continue. That waiver, if I can call it that, of any right of complaint clearly does not affect anything that happened thereafter. It is surprising that the wing member in question did not take great pains, after this matter had been raised, to assume an appearance at least of intelligent interest, but he apparently did not.
8. Against that background, I come on to paragraphs 26-28 of Stansbury v Datapulse plc

"26. That brings me to the second point on which Mr Stansbury was given permission. Were the EAT, on those factual assumptions, correct to find that the hearing was fair? In reaching their conclusion, the EAT appear to have been heavily influenced by the considerations that (i) the ET decision was unanimous and reserved, and (ii) the correctness of that decision was upheld by the EAT at the primary hearing of the appeal. With respect to the EAT, neither point was relevant to the fairness of the hearing. A hearing by the ET may be unfair by reason of one member not being able, through the consumption of alcohol or falling asleep, to give the hearing his full attention. If the hearing was unfair because of the misbehaviour of a member of the ET, the decision is not saved from being unfair by the fact that the decision was unanimous and reserved or by the fact that, on the findings made by the ET at the flawed hearing, there could be no successful appeal. If there was an unfair hearing such that there had to be a retrial by a differently constituted ET, then at the retrial the new ET could make quite different findings.

27. The question is whether, on the factual assumptions by the EAT, there was a proper hearing. In Whitehart v Raymond Thomson Ltd, an unreported decision on 11th September 1984 of the EAT, Popplewell J presiding, this was said by the EAT in relation to a case where a member of the tribunal had dozed off once, if not twice:

'It is axiomatic that all members of a tribunal must hear all the evidence and to have a trial in which one member of the tribunal is asleep even for a short part of the time, cannot be categorised as a proper trial. Justice does not appear to have been done.'

That is cited in the Red Bank case [1992] ICR 204 at page 209. No less strong a comment might be made of an ET member who has fallen asleep and is known to have consumed alcohol. That might well have impaired the member's ability to attend to the evidence and submissions before the Tribunal.

28. The EAT in Kudrath were, in my judgment, right to say that it was the duty of the Tribunal to be alert during the whole of the hearing, and to appear to be so. It seems to me that an analogy with cases of bias is appropriate. In cases of bias the appearance of bias, as observed through the eyes and ears of a fair-minded and informed observer, will vitiate a hearing: see, for example, Porter v Magill [2002] AC 357 at 394 per Lord Hope. A member of a tribunal who does not appear to be alert to what is being said in the course of the hearing may cause that hearing to be held to be unfair, because the hearing should be by a tribunal each member of which is concentrating on the case before him or her. That is the position, as I see it, under English law, quite apart from the European Convention on Human Rights. It is reinforced by Article 6(1) of the Convention. As was said by the European Court of Human Rights in Kraska v Switzerland [1993] 18 EHRR 188 at page 200, paragraph 30:

'The effect of Article 6(1) is, inter alia, to place the 'tribunal' under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties without prejudice to its assessment of whether they are relevant to its decision.'

And at page 201, paragraph 32:

"The Court had already stressed on numerous occasions the importance of appearances in the administration of justice, but it has at the same time made clear that the standpoint of the persons concerned is not in itself decisive. The misgivings of the individuals before the courts, for instance with regard to the fairness of the proceedings, must in addition be capable of being held to be objectively justified"

and then on to paragraph 33:

"33. Finally, what should this court decide in these circumstances [the circumstances in that case being a wing member who had apparently taken alcohol and fallen asleep]? Did Mr Stansbury [that is the party] have the fair hearing to which he was entitled both under the general law and under Article 6? In my judgment, a hearing by a tribunal which includes a member who has been drinking alcohol to the extent that he appeared to fall asleep and not to be concentrating on the case does not give the appearance of the fair hearing to which every party is entitled. Public confidence, as Mr Kibling [that was Counsel for the Appellant] pointed out, in the administration of justice would be damaged were we to take the view that such behaviour by a member of the ET did not matter. In my judgment we should say firmly that the conduct of [the lay member in question] at the hearing was wholly inappropriate for any member of a tribunal.

34. In the result, Mr Stansbury, not having had the fair hearing to which he was entitled, this appeal should be allowed. The decision of the ET must be set aside and the case should be remitted for a rehearing before a differently constituted ET"

and the judgment then goes on to the issue of practicalities.

9. We pause to consider whether it could be said that in this case because of the failure to object a second time, it would be inappropriate to allow the Appellant "a second bite at the cherry". It was forcibly argued on part of the Respondents that the Appellant was well aware of the problem, was demonstrably capable of objecting to it, but chose not to do so and waited to see what the result was. Whilst we see some force in that submission and, indeed, it may be that the same could be said in reverse that the successful Respondent might have been biding its time and might have taken a rather different view had the Appellant succeeded, we do not think that that makes it appropriate for us to say that the decision below can stand. The essence of an Employment Tribunal decision is that it is the decision of all three members. If one of those members has been asleep for substantial periods of time, or has appeared to be asleep for substantial periods of time, that member cannot have been playing a full part in the decision that was made.
10. Up to the point where the matter was first raised and the issue ventilated and the parties decided to continue, it can be, we think, properly said that this is akin to a case where parties deliberately decide that they will allow a hearing to continue as does rarely, but on occasion, happen, with only one lay member. In effect, the parties were prepared to continue at that stage with what might be described as a "tribunal of 2½". But thereafter, there has been no such waiver and in our judgment, it seems to us that it cannot be proper to allow a decision that arose in such circumstances to stand. It follows that for that reason, we take the view that the decision of the Tribunal must be set aside and the matter must be remitted for rehearing before a different Tribunal.