East of England Ambulance Service NHS Trust v Sanders

Employment Tribunals adjudicate disputes on the evidence advanced by the parties. Their power to ask questions and assist litigants in person does not permit them to investigate facts independently or construct a case for one party. Rule 41 permits questions directed to clarifying issues and eliciting the evidence a witness wishes to give, but the Tribunal must remain impartial and avoid leading questions which suggest an answer.

Private Internet research into potentially relevant evidence is a procedural irregularity. It may be capable of remedy if fully disclosed and fairly addressed, but reliance on untested material and conduct indicating hostility may create a real possibility of apparent bias. In that event the case should be reheard by a fresh Tribunal.

The Respondent appealed against an Employment Tribunal’s handling of a preliminary disability issue in the Claimant’s discrimination and unfair dismissal proceedings. After the evidence and submissions had concluded, the Tribunal researched the Internet to investigate the dosage of medication taken by the Claimant. It disclosed the material, questioned the Claimant about it, and rejected the Respondent’s application for recusal.

The Respondent contended that the Tribunal had exceeded its proper function, relied on evidence obtained independently, and appeared biased. The central issues were the scope of the Tribunal’s procedural powers, the consequences of undisclosed or independently obtained evidence, and whether the Tribunal’s conduct created apparent bias.

1. Appeal allowed and case remitted. The Employment Tribunal was to be replaced by a fresh Tribunal.
2. Employment Tribunal proceedings are accusatorial rather than inquisitorial. A Tribunal may explain procedure, control questioning, make proper allowance for vulnerable or unrepresented witnesses, and ask non-leading questions to elicit the evidence which a witness wishes to give. It must not find evidence to support a party’s case or make that case itself.
3. Rule 41 of the Employment Tribunal Rules of Procedure did not authorise the Tribunal to investigate evidence which neither party had volunteered. The Tribunal could ask whether the parties considered particular evidence important, or whether an adjournment was sought to obtain it. It could not conduct the investigation and rely on its own findings.
4. Internet research into potentially relevant factual material was a procedural irregularity. Disclosure of the material shortly afterwards meant that the irregularity might initially have been remedied by submissions and, if necessary, further evidence. The Tribunal nevertheless treated the material as reliable, assumed that the dosage was the maximum, and based further questioning on that assumption. This gave it improper weight.
5. The conduct, including criticism of the Respondent for matters which were the Tribunal’s own responsibility and unjustified criticism of the joint expert, created a real possibility that the Tribunal was biased under the fair-minded and informed observer test. The Tribunal could not continue to hear the case.
6. Advocates appearing before the Appeal Tribunal should identify the passages in authorities on which they rely, particularly where the opposing party is unrepresented.

• Employment Appeal Tribunal: allowed the appeal against the Employment Tribunal’s decision and remitted the case for rehearing by a fresh Tribunal.