Science Museum Group v Wess

An Employment Tribunal hearing is unfair where, assessed objectively, a fair-minded and informed observer would conclude that there was a real possibility that a tribunal member’s inattention affected its fairness. The inquiry is fact-sensitive. A fleeting lapse will not invariably vitiate a hearing, but a judge falling asleep twice during the cross-examination of a party is capable of doing so.

Under section 136 of the Equality Act 2010, a tribunal must consider all the evidence when deciding whether the burden has shifted. Knowledge of protected acts and a claimant’s qualifications alone will not normally suffice. However, unexplained exclusion at an initial sift, where the evidence supports an inference of victimisation, may require an explanation. If the burden shifts, the tribunal must clearly explain why it rejects, wholly or partly, the respondent’s non-discriminatory explanation.

The claimant, formerly a Senior Curator employed by the respondent, had brought unsuccessful Employment Tribunal proceedings following her redundancy in 2012. In 2017 she applied for two Assistant Curator posts. Her application was rejected at the sift stage because she was said to be significantly overqualified. She alleged victimisation for her earlier proceedings, which were protected acts under the Equality Act 2010.

The Employment Tribunal upheld that first claim but dismissed a separate victimisation claim concerning a Curatorial Project Manager post. The respondent appealed only the successful first claim. It alleged, among other matters, that the Employment Judge had fallen asleep twice during the claimant’s cross-examination, that the burden of proof had been wrongly shifted, and that the Tribunal had not adequately addressed its explanation for the sift decision.

1. Appeal allowed. The Employment Tribunal’s decision on the first claim was quashed and the claim was to be remitted for rehearing. The dismissal of the second claim stood because it had not been appealed.

2. The EAT found, on the balance of probabilities, that the Employment Judge fell fully asleep twice during the claimant’s cross-examination on the first day. The second episode lasted until counsel made repeated physical and verbal efforts to regain the Judge’s attention. Applying Stansbury v Datapulse plc, [2004] ICR 523, the relevant question was whether a fair-minded and informed observer would conclude that there was a real possibility that the hearing’s fairness had been affected. That test was met. The fact that the Tribunal’s decision was unanimous, and that the concern was not raised during the hearing, did not save the decision.

3. The EAT rejected the challenge to the ultimate conclusion that the burden of proof shifted. The Tribunal’s stated basis—knowledge of protected acts and the claimant’s considerable experience—was too narrow. Those matters alone did not justify an inference that the failure to shortlist was because of protected acts. Nevertheless, the undisputed evidence showed that the claimant was excluded at an earlier sift stage, without evidence that another application had been sifted out for the same reason. That wider factual context entitled the Tribunal to require an explanation under section 136 of the Equality Act 2010.

4. Independently, the Tribunal’s reasons were inadequate. The respondent’s evidence was that the claimant was sifted out because her skills and experience substantially exceeded the entry-level role and she appeared to expect research opportunities which the role did not provide. The Tribunal had to reach and state a clear conclusion on whether it accepted that explanation, in whole or in part, and why it was not persuaded that protected acts were not a material influence. Its criticism of perceived unfairness in the process did not supply that missing conclusion.

• Employment Appeal Tribunal: appeal allowed; the Employment Tribunal’s decision upholding the first victimisation claim was quashed and remitted for rehearing: [2019] UKEAT 0260_18_0404.
• Employment Tribunal: upheld the claim concerning the Assistant Curator application and dismissed the separate claim concerning the Curatorial Project Manager application. No citation was stated in the judgment.