The Employment Tribunal should not conduct its own research

17th December, 2014

The Employment Appeal Tribunal (EAT) has held in a recent case that the Employment Tribunal (ET) committed a procedural error by undertaking its own research that supported the Claimant’s case and then relied upon that research in its conclusions.

The Claimant, who suffered from depression, brought claims for unfair dismissal and discrimination on the grounds of disability. In considering her claim for discrimination, the Tribunal had to determine whether her depression rendered her disabled for the purposes of the Equality Act 2010, in a way that has a significant effect on her ability to carry out normal day to day activities.

Following uncertainty as to the dosage the Claimant received for her depression, the Tribunal retired and, despite neither party raising it as an issue, conducted its own research on the internet in respect of her prescription where it appeared that she had been prescribed the maximum recommended dosage. The Tribunal proceeded to question the Claimant thoroughly on that basis and whether she was considered by her Doctor to be “severely depressed”.

Rule 41 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (SI 2013/1237) emphasises that the Tribunal should “seek to avoid undue formality and may itself question the parties or any witnesses so far as appropriate in order to clarify the issues or elicit the evidence”. However, the EAT held, on appeal by the Respondent, that the Tribunal had made a procedural error of law. Whilst Rule 41 allows the Tribunal to make enquiries, the Tribunal cannot enquire into evidence which was never volunteered by either party, and then rely on that evidence.

The EAT further concluded that the tribunal had taken a hostile view towards the Trust and that it should not continue to hear the case

In consequence, the President of the EAT has set out some guidance in relation to bundles of authorities that are submitted to the employment tribunal or the EAT remarking that parties should highlight passages that are specifically being relied upon in Tribunal.

Whilst Claimants and Respondents alike are entitled to represent themselves at Tribunal, we would strongly urge any party to proceedings to seek profession advice and representation at an early stage.

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