The 'not asleep' Tribunal

15 Sep

In the case of Elys v Marks and Spencer Plc & Ors. [2014] UKEAT 0518 it has been held that there was no material procedural irregularity when a member of an Employment Tribunal had apparently been sleeping for around 15-20 seconds. The member had been observed to be drooling by the Employment Judge but this wasn’t sufficient so as to permit a judgment to be overturned.

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Sleeping

 

In the case of Elys v Marks and Spencer Plc & Ors. [2014] UKEAT 0518 it has been held that there was no material procedural irregularity when a member of an Employment Tribunal had apparently been sleeping for around 15-20 seconds. The member had been observed to be drooling by the Employment Judge but this wasn’t sufficient so as to permit a judgment to be overturned.

The Claimant who had lost his case at the Tribunal appealed to the EAT. He argued that one lay member had been asleep at different periods during the 3-week hearing. The member accepted that he often closed his eyes to combat dry eyes and had been taking painkillers.

The EAT noted that its function was to make findings of fact as to what had occurred at the hearing and to decide either if there was inattention or the appearance of inattention to a properly informed and impartial observer. It concluded that there was neither.

During the course of the hearing, the member had asked questions, taken extensive notes participated fully in discussions with the Tribunal. The 15-20 second 'drooling' incident was not “of sufficient materiality to amount to a procedural irregularity”.

By way of future reference the EAT suggested that where a member who forms part of a Tribunal has a medical condition that may give rise to misinterpretation by parties, this should be flagged by the member at the outset of the case. Indeed, had this actually been done in the instant case, the appeal may have been avoided.

Naveen Agnihotri

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