Sleeping ET member

Stansby v Datapulse plc and another CA TLR 28 January

The appellant contended that the employment tribunal hearing his claim for unfair dismissal was itself unfair because one of the members was drunk and had fallen asleep during the hearing. The Employment Appeal Tribunal had taken the view that even if this were the position, the hearing was not unfair because the decision of the employment tribunal was unanimous; it had reserved its decision, the correctness of which had been upheld by the EAT prior to hearing the present appeal. The EAT was wrong. A hearing by a tribunal which included a member who had been drinking alcohol to the extent that he appeared to fall asleep and not to be concentrating on the case did not give the appearance of the fair hearing to which every party is entitled. Public confidence in the administration of justice would be damaged were the court to take the view that such behaviour by a member of the employment tribunal did not matter. The Court should firmly say that the conduct of the member of the hearing was wholly inappropriate for any member of a tribunal. It was the duty of the tribunal to be alert during the whole of the hearing and to appear to be so. A member of a tribunal who did not appear to be alert to what was being said in the course of the hearing might cause that hearing to be unfair, because the hearing should be by a tribunal, each member of which was concentrating on the case before him. The case was remitted to a different employment tribunal.