Podkowka v The Royal Borough of Kensington and Chelsea

An allegation that a tribunal member was asleep or insufficiently attentive requires a factual assessment of the nature and extent of any proved inattention in all the circumstances. A tribunal member must be alert throughout the hearing and appear to be so. However, brief or limited inattention is not inevitably fatal if a fair-minded and informed observer would not regard the hearing as unfair.

A party should ordinarily raise such a concern during the hearing, but there is no legal duty to do so and the omission does not bar an appeal. In a reasonable-adjustments claim, reasons are sufficient where the tribunal has addressed the alleged disadvantage and explained why the equipment provided was appropriate and effective.

The claimant, a customer liaison officer with bilateral hearing loss and associated conditions, brought claims for unfair dismissal, disability discrimination and harassment. The Employment Tribunal upheld unfair dismissal but dismissed the disability-discrimination and harassment claims.

On appeal, the claimant alleged that a lay member of the Employment Tribunal had repeatedly slept during the five-day hearing, rendering it unfair. She also challenged the dismissal of her reasonable-adjustments claim, contending that the Tribunal had failed adequately to address the effect of audio equipment on her tinnitus and balance issues.

The Employment Appeal Tribunal heard oral evidence on the first ground and determined the second as a discrete question of law.

1. Appeal dismissed. The Employment Appeal Tribunal was not satisfied that the lay member had slept or been inattentive in the manner or to the extent alleged. Having assessed the evidence as a whole, it accepted the respondent's witnesses and found the claimant's evidence unreliable and one supporting witness's account exaggerated.

2. Applying [2004] ICR 523 and [2004] UKEAT/0394/00, a tribunal member must be alert throughout a hearing and appear to be alert. Whether proved inattention invalidates the hearing is nevertheless a question of fact and degree. It depends on its nature and extent in the circumstances and on whether a fair-minded and informed observer would regard the hearing as unfair.

3. The failure to raise the allegation during the hearing did not prevent it being advanced on appeal. Raising such a concern at the time is desirable, but there is no legal duty to do so. The omission was relevant evidentially, but the appeal was decided on the evidence as a whole.

4. The reasonable-adjustments ground disclosed no error of law or insufficiency of reasons. The Employment Tribunal had found that the specialist wired audio equipment was appropriate and efficacious, had been obtained following professional advice and two assessments, and enabled the claimant to hear satisfactorily. Its findings and reasons sufficiently addressed tinnitus insofar as it formed part of the complaint. The failure to provide wireless equipment did not make the adjustments unreasonable or insufficient.

• Employment Appeal Tribunal: dismissed the claimant's appeal.
• Employment Tribunal, Watford: judgment dated 11 October 2011 upheld the unfair-dismissal claim but dismissed the disability-discrimination and harassment claims.