EAT Practice and Procedure – Bias, misconduct and procedural irregularity
An Employment Tribunal heard evidence and submissions on a preliminary issue of disability, and retired to consider its decision. It then researched the Internet, without prior reference to the parties, to ask a question about whether there had been no obvious prior issue between the parties (the Claimant being a litigant in person). It was unclear why it had done so, since what was found was of dubious relevance, though it may have appeared it was trying to find evidence which might favour the Claimant. Having returned into the hearing, it told the parties what it had found out. It then asked further questions, appearing to accept uncritically the accuracy and reliability of what had been discovered. It rejected an application to recuse itself, but did so in terms which, when added to those of comments made on an affidavit filed for the Appellants, indicated to the Appeal Tribunal that it had an animus toward the Appellant, not least by appearing prepared to criticise a consultant psychiatrist joint expert for not having approached his examination of the Claimant properly, when there was no evidential basis at all for this criticism.
The Employment Tribunal appeared to think it was free to conduct its own research into the facts surrounding what had happened.
Held: It should not have tried to obtain its own evidence; the role of an Employment Tribunal is accusatorial, and assisting litigants in person to give the best evidence they would wish to give to make their case should not be confused with making a case for such litigants which they have never tried to make. The Employment Tribunal here descended impermissibly into the arena, compounded that by making comments to the Employment Appeal Tribunal seeking to construct arguments (here in support of the Claimant) rather than stating facts, and appeared from what it said to be hostile to the Appellant. The appeal was allowed.
At one stage the Employment Tribunal said that what it had done by accessing the Internet had done no harm to anyone, whereas to the contrary it had exposed both parties to the costs and expense of an appeal, and significantly delayed the resolution of a case the Claimant wished to be resolved as soon as possible.
Observations made about the need for advocates before the Employment Appeal Tribunal to mark authorities to show the passages to be relied on.
Langstaff P J
[2014] UKEAT 0217 – 14 – 1710
Bailii
England and Wales
Employment
Updated: 23 December 2021; Ref: scu.538836
