Rules of evidence
Labour & European Law Review Weekly Issue 401 07 January 2015
Although tribunals are allowed to regulate their own procedures and conduct hearings in whatever way they think is fair, the Employment Appeal Tribunal (EAT) held in East of England Ambulance Service NHS Trust v Sanders that they cannot investigate evidence or make enquiries about evidence that was not volunteered by either party to the case.
Ms Sanders lodged a complaint of disability discrimination on the basis of depression and unfair dismissal. The issue of whether she was disabled within the meaning of the Equality Act 2010 was heard on the first day of what was to be a six-day hearing.
She had been ordered to set out, in advance of the hearing, what adverse effects her depression had on her normal day-to-day activities. As she was acting for herself, she prepared her own statement, but it did not really address the issue of adverse effects. She then gave evidence to the tribunal about the medication she was on for her depression and the dosage that had been prescribed for her.
After the tribunal retired to discuss their conclusion, it did some research on the internet about the appropriate dose for the medication that Ms Sanders had been on. After returning to the hearing, the tribunal asked her whether she was aware she had been on the highest dose and twice asked her whether her GP had described her as “severely depressed”.
The next day, the employer made an application that the tribunal should disqualify (“recuse”) itself on the basis that it had exceeded its role by investigating evidence which neither party had asked it to do. In addition, the tribunal had assumed that what it found out was reliable. The employer also claimed that the tribunal was biased towards Ms Sanders. Relying on rule 41 of the Employment Tribunal Rules of Procedure, the tribunal refused to recuse itself and the employer appealed.
Rule 41 states that a tribunal may regulate its own procedure and conduct the hearing in whatever way it thinks fair. In addition it “may itself question the parties or any witness so far as appropriate in order to clarify the issues or elicit the evidence. The tribunal is not bound by any rule of law relating to the admissibility of evidence in proceedings before the courts.”
The EAT held that rule 41 did not allow tribunals to make enquiries about evidence that was not volunteered by either party to the case. It was allowed to ask the parties whether they had thought about particular evidence or even whether they might want an adjournment in order to obtain it, but it could not investigate the evidence itself.
By actively seeking fresh evidence on behalf of one or other of the parties, it had become like an advocate, rather than an adjudicator (its proper role). Although the EAT agreed that tribunals should be sensitive to litigants in person, that was an entirely different matter from adopting an inquisitorial approach. It was the judge’s role to ensure that the witness gave the best evidence that they would wish to give, but it is “that witness’s evidence. It is that witness’s case. It is not the Tribunal’s case. It is not the Tribunal’s evidence”.
By accessing the internet, the tribunal did what jurors in criminal cases are warned against at the start of every trial. That is, they should not try to uncover further material (however relevant), but should make their decision on the evidence before them.
The EAT therefore allowed the appeal and remitted the case to be heard by a fresh tribunal.