The behaviour of people hearing a case (whether in the workplace or in a tribunal) can be crucial to the outcome. In this case - Stansbury v Datapulse plc and anor (2004, IRLR 466) - Mr Stansbury successfully argued at the Court of Appeal that he had been denied a fair hearing because one of the panel members fell asleep.

What happened at the hearing?

Mr Stansbury brought a claim of unfair dismissal after being made redundant by his employer. The case was heard in May and July 2001 by a tribunal panel consisting of the chairman, Mr Ross, and two lay members, Mr Carruthers and Mr Eynon. They decided that the dismissal was fair. Mrs Jennifer Kavanagh represented Mr Stansbury.

Why did Mr Stansbury appeal?

Mr Stansbury (acting on his own) sought a review of the tribunal's decision, claiming that a panel member fell asleep during the hearing and that his breath smelt of alcohol.

The chairman of the tribunal dismissed the request for a review, saying that he should have made his objection known at the hearing.

Mr Stansbury then appealed in September 2001 against the tribunal's decision, claiming (among other things) that one of the panel members was drunk. The employment appeal tribunal (EAT) asked for comments on his allegation from all the tribunal members and the two barristers.

The general consensus was that although Mr Eynon may have smelt slightly of alcohol, he did not actually fall asleep. Rather he closed his eyes to concentrate.

Even Mr Stansbury's barrister said something similar in a statement in April 2002. Her view was that the lay member's behaviour was not an issue until Mr Stansbury received the tribunal's decision.

What did the EAT decide?

However, the EAT was also shown an unsigned opinion by Mrs Kavanagh in September 2001 to Mr Stansbury's insurers which said that one of the panel members was clearly drunk and not following the proceedings.

As a result, although the EAT rejected Mr Stansbury's main appeal, it allowed him to go ahead on the procedural ground that he had been denied a fair hearing within Article 6 of the European Convention on Human Rights.

Unfortunately for Mr Stansbury, he did not succeed. The EAT was satisfied that the tribunal's reasoning was careful and that even if Mr Eynon was drunk and did fall asleep, it did not make the hearing unfair.

What did the Court of Appeal decide?

The Court agreed with the EAT that although Mr Stansbury did not make his objections known to the tribunal (which would have been preferable), that did not mean he could not raise them on appeal.

But the real question was whether the hearing was fair. The Court of Appeal emphasised that it was the duty of the tribunal to be alert during the whole of the hearing, and to appear to be so. It disagreed with the reasoning of the EAT that the hearing was fair because the decision was unanimous and reserved.

In its judgment, a 'hearing by a tribunal which includes a member who has been drinking alcohol to the extent that he appeared to fall asleep and not to be concentrating on the case does not give the appearance of the fair hearing to which every party is entitled'. The Court said that public confidence in the administration of justice would be damaged if it took the view that such behaviour did not matter.

The appeal was therefore allowed, the decision of the tribunal set aside and the case remitted for a rehearing before a differently constituted tribunal.

Comment

Although the Court of Appeal was prepared to hear this case (despite the fact that the wing member's conduct was not challenged at the hearing), applicants and their representatives should make their objections known straight away.