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Does a medical condition excuse an Employment Tribunal member from appearing asleep during a hearing?

24th September, 2014

In the case of Elys v Marks and Spencer PLC UKEAT 0518/13, an unsuccessful claimant appealed to the Employment Appeal Tribunal on the basis that a lay-member of the Tribunal panel had been asleep during various parts of the hearing.

In response to this appeal, the EAT held that the member’s alleged sleeping did not lead to a procedural irregularity entitling it to overturn the Tribunal’s original decision.

The EAT heard that the Tribunal member in question had his eyes closed for periods of 15-20 seconds and was seen to be drooling on several separate occasions during a three-week hearing. However, this was due to a medical condition leaving his eyes dry, for which he was already taking painkillers.

The EAT’s focus was to make a finding of fact on whether there had been any inattention from the Tribunal member, in the opinion of a properly informed and impartial observer.

It was held that throughout the hearing, the Tribunal member asked questions, made extensive notes and actively took part in the Tribunal’s discussions. His ‘sleeping’ and ‘drooling’ could not therefore amount to a procedural irregularity.

The Employment Appeal Tribunal did however note that the appeal proceedings could have been completely avoided, had the Tribunal member informed the Judge of his medical condition at the outset of the hearing. It was unfortunate that this situation was left open to misinterpretation by the parties.

For further information and advice in relation to Employment Tribunals please contact Helen Watson on 01244 405565 or send an email to [email protected]

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