EAT Practice and Procedure : Bias, Misconduct and Procedural Irregularity – PRACTICE AND PROCEDURE – Review
The Claimant appealed a determination against her on liability, and refusal subsequently to review that decision. In part, this was because she said a lay member had been asleep through parts of the evidence. The ET decided it should determine at the review, as a whole panel, whether there had been a material procedural irregularity. It concluded that the member had his eyes closed for periods of time, and on one occasion had been seen by the Judge to be drooling, so as to require to be nudged. Nonetheless it held that there had been no procedural irregularity. On appeal, it was held (contrary to the Respondent’s primary submission that the ET decision should stand unless it could be shown that there was an error of law) that it was not appropriate for the ET to take a decision whether it had itself been innocent of procedural irregularity, though if it decided it had, that decision could be acted upon, and if not, the comments of the Judge and Members as to what had happened would be of importance. It was for the EAT to judge as a primary fact finder whether there had been an irregularity such as vitiated the hearing, and to assess the evidence thus established by asking whether the well-informed objective observer would think there was a real possibility that there had been a material procedural irregularity (considering Stansbury v Datapulse). Having considered the material put before it, the ET concluded that it would have appeared to such an observer, once he knew of the explanation, that the member had shut his eyes because he suffered from dry eye syndrome, and had not been guilty of inattention save for one short episode (on the evidence of some 10 -15 seconds duration) when he had been nudged and had thereafter clearly been alert. This was regrettable, but on its own of trivial significance, and did not appoint to a material procedural irregularity.
Observations made as to the duties of lay members of tribunals who might suffer from conditions which if unexplained in advance might give rise to a suspicion that they were not paying full attention to proceedings.
Langstaff P J
[2014] UKEAT 0518 – 13 – 0404
Bailii
England and Wales
Employment
Updated: 21 December 2021; Ref: scu.536679