Elys v Marks & Spencer plc

An Employment Appeal Tribunal must determine for itself, as primary fact-finder, whether alleged conduct by an Employment Tribunal member caused a material procedural irregularity. The tribunal under challenge should investigate the facts and state its observations, but should not conclusively decide its own procedural propriety.

The relevant assessment includes both actual inattention and whether a well-informed and fair-minded observer would perceive a real risk of inattention. An apparent irregularity may be dispelled by a credible explanation supported by objective evidence. Brief, isolated and immaterial inattention does not necessarily vitiate a hearing. Tribunal members who have conditions or medication capable of creating a misleading appearance should ordinarily alert the tribunal and, where appropriate, the parties.

The claimant appealed against an Employment Tribunal’s dismissal of her employment complaints and against its refusal to review that decision. She alleged that a lay member had repeatedly appeared to sleep during the three-week liability hearing.

The Employment Tribunal investigated the allegation as a whole panel. It found that the member had often closed his eyes because of dry-eye syndrome, but had been momentarily inattentive during one incident lasting approximately 15 to 20 seconds. It concluded that no material procedural irregularity had occurred.

The central issues before the Employment Appeal Tribunal were whether the Employment Tribunal could conclusively determine its own alleged procedural irregularity, and what test should govern allegations of actual or apparent inattention.

1. Appeal dismissed. The Employment Tribunal was entitled to investigate the allegation, record the facts and state whether it considered that an irregularity had occurred. It was not, however, the proper final arbiter of its own alleged procedural misconduct. On appeal, the Employment Appeal Tribunal had to determine the relevant primary facts itself, where necessary, and assess whether the hearing was vitiated.
2. The approach in Stansbury v Datapulse plc [2003] EWCA Civ 1951 was adopted. The inquiry concerns both actual inattention and whether a well-informed and fair-minded observer would think there was a real risk of inattention sufficient to undermine the appearance of justice. The approach in Facey v Midas Retail Security [2000] IRLR 813, concerning the determination of disputed facts about tribunal conduct, was endorsed.
3. Facts suggesting inattention must be examined critically alongside any explanation. If the explanation is objectively supported and consistent with the other evidence, an initial appearance of impropriety may fall away. Here, the lay member’s dry-eye condition, full notes, relevant questioning and participation in the tribunal’s deliberations made regular inattention improbable.
4. The member was undoubtedly inattentive for approximately 15 to 20 seconds after taking the wrong medication. That incident was regrettable but isolated and trivial in materiality. It did not amount to a procedural irregularity sufficient to vitiate the hearing.
5. Tribunal members have a responsibility to remain properly attentive throughout proceedings. A member who knows that a medical condition or medication may create an appearance of inattention should inform the judge and, where appropriate, ensure that the parties receive sufficient explanation to avoid a misleading impression, subject to confidentiality and proportionality.

• Employment Tribunal, Watford: dismissed the claimant’s complaints on liability on 25 April 2013.
• Employment Tribunal, Watford: refused the claimant’s review application on 22 August 2013.
• Employment Appeal Tribunal: dismissed the appeals and upheld the outcome after independently assessing whether the alleged inattention constituted a material procedural irregularity.