Stansbury v Datapulse Plc & Anor, England and Wales Court of Appeal (Civil Division), Judgment, Law, casemine.com

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Attorney(S)

MR THOMAS KIBLING and MR THOMAS BROWN (acting Pro Bono) appeared on behalf of the Appellant.
The Respondents did not appear and were unrepresented.

Judges

LORD JUSTICE PETER GIBSON
SIR MARTIN NOURSE
LORD JUSTICE LATHAM

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Stansbury v. Datapulse Plc & Anor

Smart Summary

Factual and Procedural Background

The Appellant was employed by Company A as a project manager for five years until dismissed on the ground of redundancy. He lodged a complaint of unfair dismissal with the Employment Tribunal ("ET"). The ET, composed of a Chairman and two lay members, heard the case and found no unfair dismissal. The Appellant appealed to the Employment Appeal Tribunal ("EAT") on procedural grounds relating to the alleged misconduct of a lay member of the ET, including allegations of sleeping during the hearing and being under the influence of alcohol. The EAT reviewed evidence and submissions, including conflicting statements from representatives and tribunal members, and ultimately dismissed the appeal. The Appellant then sought permission to appeal to a higher court, which was granted on two procedural grounds concerning the EAT's approach to the complaint about the lay member's conduct and the fairness of the hearing.

Legal Issues Presented

Whether the Employment Appeal Tribunal ("EAT") should entertain a complaint about the conduct of a lay member of the Employment Tribunal ("ET") when the complaint was not raised at the ET hearing.
Whether the EAT was correct in its view that even if a lay member had consumed alcohol and fallen asleep during the hearing, the hearing was still fair and complied with Article 6 of the European Convention on Human Rights.

Arguments of the Parties

Appellant's Arguments

The Appellant alleged that a lay member of the ET fell asleep during the hearing and was under the influence of alcohol, which compromised the fairness of the hearing.
The Appellant contended that these procedural irregularities amounted to a breach of the right to a fair hearing under Article 6 of the European Convention on Human Rights.
He argued that the EAT erred in declining to resolve factual disputes regarding the lay member's conduct and in holding that the hearing was fair despite the alleged misconduct.

Respondents' Arguments

This information was not available in the provided opinion.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Moringiello	Whether complaints about tribunal member conduct must be raised at the time of the hearing.	The EAT and court considered that it is not always realistic or required to raise such complaints during the hearing in Employment Tribunals, differing from criminal trials.
Red Bank Manufacturing Company Limited v Meadows [1992] ICR 204	Obligation to raise transient matters such as a member falling asleep during the proceedings.	The court noted this precedent but accepted the EAT's discretion to hear complaints not raised at the hearing given the context.
Kudrath v Ministry of Defence (unreported, 26 April 1999)	Duty of tribunal members to remain alert and the approach to complaints about tribunal conduct.	The EAT followed this precedent in allowing complaints about tribunal member conduct to be entertained despite not being raised during the hearing.
Facey v Midas Retail Security [2000] IRLR 813	EAT's role in determining factual disputes about tribunal misconduct or bias.	The court agreed that the EAT must act as judges of fact in such cases and resolve conflicting evidence, including by hearing witnesses if necessary.
Whitehart v Raymond Thomson Ltd (unreported, 11 September 1984)	A tribunal member falling asleep during the hearing undermines the fairness of the trial.	The court cited this authority to emphasize that sleeping tribunal members prevent a proper trial and justice.
Porter v Magill [2002] AC 357	Appearance and effect of bias assessed by the perspective of a fair-minded and informed observer.	Used to analogize that a tribunal member not alert may cause a hearing to be unfair under English law and the Convention.
Kraska v Switzerland [1993] 18 EHRR 188	Article 6(1) requires tribunals to conduct proper examination of evidence and submissions.	The court relied on this to affirm the duty of tribunals to be alert and properly engaged in the hearing.
McGonnell v United Kingdom [2000] 30 EHRR 289	Waiver of objection to tribunal impartiality depends on reasonableness in the circumstances.	Supported the view that failure to raise an objection during the hearing should be considered against reasonableness and all circumstances.
Lawal v Northern Spirit Ltd [2003] ICR 856	Higher standards of public confidence in justice require impartiality and fairness of tribunals.	Used to reinforce the importance of appearance and reality of fairness in tribunal proceedings.

Court's Reasoning and Analysis

The court began by addressing the procedural question of whether the EAT should entertain complaints about tribunal member misconduct not raised at the hearing. It agreed with the EAT's approach that such complaints could be entertained, given the practical difficulties in raising them during the hearing, especially in Employment Tribunals where parties may be unrepresented.

The court then examined the EAT's role in dealing with factual disputes about tribunal member conduct. It found that the EAT was mistaken in stating it was not a judge of fact on these matters; rather, the EAT must resolve factual disputes and can require evidence or cross-examination as necessary. However, the court acknowledged that the EAT had effectively assessed whether the alleged misconduct, if proven, would vitiate the fairness of the hearing.

On the substantive fairness issue, the court rejected the EAT's reliance on the unanimity and reserved nature of the ET's decision and the upholding of the decision on appeal as relevant to fairness. The court emphasized that a hearing is unfair if a tribunal member fails to attend properly to the proceedings, regardless of the ultimate decision.

The court reviewed the evidence and found it established on the balance of probabilities that the lay member had consumed alcohol and that his conduct, including closing his eyes and behaving oddly, supported the view that he was not fully alert and may have fallen asleep. This conduct was held to be wholly inappropriate and undermined the fairness of the hearing.

The court concluded that the Appellant did not receive the fair hearing to which he was entitled under domestic law and Article 6 of the European Convention on Human Rights. The court considered that public confidence in the administration of justice required a firm stance against such tribunal member misconduct.

Holding and Implications

The court ALLOWED THE APPEAL, set aside the decision of the Employment Tribunal, and ordered that the case be remitted for a rehearing before a differently constituted Employment Tribunal.

The direct effect of this decision is to provide the Appellant with a new hearing due to the procedural unfairness caused by the misconduct of a tribunal member. The court did not establish new legal precedent beyond reaffirming existing principles on tribunal conduct and fairness but underscored the importance of tribunal members' attentiveness and sobriety in maintaining the integrity of proceedings and public confidence in justice.