The effect of an Employment Tribunal member falling asleep during a hearing

You are at an Employment Tribunal hearing. Both you and the other side have a legitimate expectation that the decision makers will stay awake during the hearing. If one of them falls asleep, it must render the decision unfair. Surely!

Not so, said the Employment Appeal Tribunal in the case of Elys v Marks and Spencer Plc.
In this case, one of the Tribunal members appeared to be asleep for 15-20 seconds on one occasion, and on another having been observed by the Judge to be drooling, needed to be ‘nudged’ by the Judge. The Claimant was – to some degree – supported in her assertions by observations of the Judge, and the barrister on the other side.

The Claimant, who had lost her Tribunal claim at first instance, appeared in person at the appeal hearing against a QC. She argued that the behaviour of the Tribunal member meant that the decision could not stand.

The Tribunal member’s explanations for the seeming inattention were that a) he had a condition called ‘dry eyes’ requiring him to close his eyes a lot to prevent them from drying out, and b) he had mistakenly taken a strong painkiller that caused him to appear inattentive. He explained that he had not been asleep and had taken satisfactory notes of evidence.

The EAT concluded that the way to approach this issue was to ask :-
1. On the balance of probabilities was the tribunal member paying attention? If there was any occasion where he was not paying attention, was it trivial?
2. Would an impartial observer think that there was a real danger of inattention?

In the case of Miss Elys, the Tribunal concluded that a reasonable observer with knowledge of the Tribunal member’s medical condition would not consider that there was a real danger of inattention, and that the ‘nudging incident’ was regrettable but too short to amount to inattentiveness.

Miss Elys could certainly be forgiven for feeling hard done to with this set of facts. Perhaps of greater note, however, is that there is quite a lot of English case law from various areas of law (family, criminal etc) about what the approach should be if a Judge falls asleep during a hearing.

If you would like advice about this or any other matter, please contact Andrew Buckley, employment solicitor in Bedford at Woodfines. 

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