Allegation of unfair hearing because tribunal member drunk and asleep - appeal tribunal on assumed facts finding no unfairness - member's behaviour not giving appearance of fair hearing to which party entitled

Stansby v Datapulse Plc and another: CA (Lord Justice Peter Gibson, Lord Justice Latham and Sir Martin Nourse): 15 December 2003

The claimant brought a complaint of unfair dismissal against his employer and its holding company.

The employment tribunal dismissed his claim.

He contended that the employment tribunal hearing was unfair because of the improper conduct of a member.

He alleged that the member was drunk and had fallen asleep during the hearing.

The matter had not been raised at the time of the hearing.

The Employment Appeal Tribunal said that where misbehaviour by a tribunal member was alleged, they were not judges of fact and did not have to resolve factual differences in evidence relating to that conduct.

They approached the matter on the assumption that the allegations were made out but found that they did not make the hearing unfair and dismissed his appeal.

He appealed.

Thomas Kibling and Thomas Brown (acting pro bono) for the claimant; the respondents did not appear and were not represented.

Held, allowing the appeal, that where a complaint of improper conduct by a tribunal member were raised on appeal, the appeal tribunal should entertain the complaint and could be judges of fact and resolve factual differences in evidence; that a hearing by an employment tribunal that included a member who had been drinking alcohol to the extent that he appeared to fall asleep and not to be concentrating on the case, did not give the appearance of the fair hearing to which every party was entitled; that public confidence in the administration of justice would be damaged were the court to take the view that such behaviour by a member of the employment tribunal did not matter; and that, accordingly, the claimant had not had a fair hearing under the general law or article 6 of the European Convention on Human Rights.