Tribunal ruling overthrown because judge fell asleep

A victimisation case at an employment tribunal will be reheard after the judge fell asleep during proceedings before making the judgment in the claimant’s favour.

A barrister reportedly had to bang a cup on his desk and tried raising his voice but Judge Paul Stewart, nodded off twice while the claimant, Ms Wess, was being cross-examined at the March 2018 hearing.

Stewart’s judgement was voided and overturned by appeal judge Simon Auerbach.

The claim was brought against the Science Museum Group (SMG), a collection of UK museums including London’s Science Museum, York’s National Railway Museum and the Science and Industry Museum in Manchester.

Wess had previously brought an unsuccessful sex and age discrimination case against SMG and was claiming that she’d been victimised because of it.

“In all the circumstances,” Judge Auerbach concluded, “a fair-minded informed observer would conclude that there was a real possibility that the fairness of the hearing was affected.

“The appeal therefore succeeded on this ground alone.”

It was during the claimant’s cross examination by barrister Tim Sheppard, acting for SMG, that, according to Sheppard, “Judge Stewart’s hands slide off the desk in front of him”.

He added that the judge’s head was slumped and his eyes closed. “He appeared to lose consciousness entirely and stopped taking a note of the exchange”. He also “stopped engaging with the documentation in front of him”, said the barrister

The judge awoke, but around thirty minutes fell asleep again. It was at this point when Sheppard raised his voice to state “Sir” several times and banged his cup until the judge regained consciousness.

Wess was employed by SMG in March 1979 and went on to hold the post of senior curator for science. But she was made redundant in November 2012. She then presented claims to the employment tribunal for unfair and wrongful dismissal, age and sex discrimination, which were dismissed.

In January 2017 she applied for two assistant curator positions but was told by letter that her application would not be taken further, because she was “significantly overqualified for the role”.

Wess then presented a claim to the employment tribunal on the grounds of victimisation, claiming she had been blacklisted by the museum.

Judge Stewart, a civil practitioner dealing primarily with clinical negligence, personal injury and employment, told the hearing that he had no recollection of falling asleep but conceded that “the absence of such a memory does nothing to rebut the allegation”. He primarily works at the London Central Employment Tribunal.

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The case against SMG will now be heard again before a different judge.

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