Employment Tribunal victimisation ruling quashed after judge fell asleep twice during hearing

The Employment Appeal Tribunal (EAT) allowed an appeal against the decision of the Employment Tribunal (ET) after finding that the judge “very unfortunately” fell asleep on two occasions while the claimant was being cross-examined, which vitiated its decision in her favour. 

The incident took place in March 2018 during a hearing of a victimisation claim by Jane Wess against the Science Museum Group, following two unsuccessful job applications. 

‘Victimisation’

The EAT heard that the claimant had worked for the respondent for 33 years until she was made redundant from her position as senior curator for science as part of a restructuring in 2012. 

She subsequently pursued Employment Tribunal claims for unfair and wrongful dismissal, as well as age and sex discrimination, all of which were unsuccessful.

In January 2017 the respondent advertised two assistant curator positions and the claimant applied, only to be informed by letter that her application would not be taken further, as she was “significantly overqualified for the role”. 

She presented a claim to the ET to the effect that the decision amounted to victimisation, contrary to sections 27 and 39 Equality Act 2010, relying on her previous ET claims as protected acts. 

Then in February 2017 the claimant applied for another job when the respondent advertised the position of cultural project manager, but again she was unsuccessful, having been advised by email that she was not among the candidates who were invited for interview.

She submitted a further claim of victimisation to the ET, relying on the same protected acts.

The two claims were heard together at the Central London Employment Tribunal before a three-member panel chaired by Employment Judge Paul Stewart.

‘Judge lost consciousness’

The first claim succeeded and the second claim failed, but the respondent appealed the decision to uphold the first claim.

The EAT was told that during the first day of the three-day hearing of the two claims, the party litigant claimant had given her evidence and was being cross-examined by barrister Tim Sheppard. 

The respondent’s solicitor described what happened next: “At around 3.00pm, I noticed employment Judge Stewart’s hands slide off the desk in front of him. At the same time, his head slumped and his eyes were closed. He stopped taking a note of the exchange between Mr Sheppard and the Claimant and had stopped engaging with the documentation in front of him. He appeared to lose consciousness entirely.” 

The judge regained consciousness after a minute or two, but fell asleep again within half-an-hour.

Mr Sheppard, who also noticed that the judge had dozed off, described how he tried to wake the judge: “On the second occasion, which was at approximately 3.30pm, I raised my voice and banged my cup on the table a few times in order to command employment Judge Stewart’s attention. I then stated ‘Sir’ on a few occasions, at which point Judge Stewart visibly regained consciousness and composure.” 

The claimant’s husband, however, didn’t think the judge had been asleep, but said he had adopted a “meditative posture”. 

Judge Stewart told the appeal tribunal that he did not recall falling asleep, but admitted that “the absence of such a memory does nothing to rebut the allegation”. 

‘Fairness of the hearing was affected’

Allowing the appeal, the EAT ruled that a fair-minded informed observer would conclude that there was a real possibility that the fairness of the hearing was affected, having found, on the balance of probabilities, that Judge Stewart had indeed fallen asleep. 

In a written judgment, Judge Simon Auerbach said: “In this case, the judge did not appear momentarily to be inattentive, or to nod his head. He appeared to, and I have found, did, fully fall asleep on two occasions, and, on the second occasion, only became fully alert again after significant intervention from a representative. This occurred during the course of the cross-examination of a witness, specifically, one of the parties. 

“The claimant argued that it could be seen that the ET was aware of all the issues covered in this part of the cross-examination. But the cross-examination of the claimant on points at issue was a material and important part of the process.

“In all the circumstances, a fair-minded informed observer would conclude that there was a real possibility that the fairness of the hearing was affected. This, very unfortunately, does, in my judgment, vitiate the decision. The appeal therefore succeeded on this ground alone.” 

While the ET decision had been unanimous, the appeal would, in any event, have been allowed, on the basis that the ET did not reach a sufficiently clear and specific conclusion in respect of the claimant’s case as to the explanation for the decision to sift out her application, being that she was regarded as significantly overqualified for the position.

However, the appeal would not have been upheld by reference to the grounds of appeal challenging the ET’s decision that the burden of proof passed to the respondent. Although the specific matters relied upon by the ET as shifting the burden were too narrow, the wider undisputed facts were such as to justify that decision.