Asleep on the job?
Fordyce v Hammersmith & Fulham Conservative Association, EAT, 13 January 2006
Facts Generally, a tribunal case will be heard by a panel of three members – a legally-qualified chairman, and two lay or ‘wing’ members. During Mrs Fordyce’s tribunal hearing, the association’s lawyer noticed that one of the wing members appeared to have fallen asleep for a significant part of that morning’s evidence.
After lunch, both parties’ lawyers raised the issue with the tribunal in the absence of the parties or their witnesses. The tribunal chairman was assured that the wing member was well, and the lawyers confirmed that their clients were willing to continue with the hearing.
Subsequently, there were further occasions where the same person seemed to be asleep. A trainee barrister took detailed notes of these periods, which were made available to Fordyce’s lawyer at the conclusion of the hearing before any decision was given. At that stage, the matter was not raised again with the chairman.
Decision Fordyce’s unfair dismissal complaint was unsuccessful. She appealed, raising – among other things – the issue of the wing member’s appearance of being asleep for parts of the hearing.
Appeal The appeal was allowed. Referring to the Court of Appeal decision in Stansbury v Data Pulse plc and another  ICR 523, the EAT said that the matter turned on what was reasonable in the particular case. The period of apparent sleep before the matter was raised with the chairman was considered ‘water under the bridge’ – the parties had decided to continue. But that did not apply to any subsequent periods of apparent sleep. A ruling in such circumstances could not be allowed to stand. The case was sent back for rehearing.
Comment The EAT said: “It is surprising that the wing member in question did not take great pains to assume an appearance at least of intelligent interest, but he apparently did not.”