Tribunal is caught napping after member falls asleep

An employment tribunal’s decision has been overturned on appeal because a panel member had seemed to fall asleep — at least twice.

While the London (Central) Employment Tribunal was hearing a claim of unfair dismissal brought by Mrs Fordyce, one of the wing members appeared to be asleep during the morning session. The matter was raised with the tribunal chair, but both parties agreed to proceed with the hearing.

However, the same tribunal member then appeared to be asleep again on further occasions.

The tribunal subsequently rejected Fordyce’s claim, and she appealed.

The Employment Appeal Tribunal (EAT) said that the first period of apparent sleep could be disregarded, as the parties had agreed to proceed — but this did not deny them the right to complain about the subsequent lapses.

The employer argued that, since Fordyce had noticed the continuing problem but had waited until the ruling to compain about it, she should not be allowed a “second bite at the cherry”. But the EAT said it would not be appropriate to allow the decision to stand.

Expressing surprise that the wing member did not “assume an appearance at least of intelligent interest” after the matter had already been raised with him, the EAT held that the judgment must be set aside and remitted the case for rehearing by a different tribunal.

Fordyce v Hammersmith and Fulham Conservative Association UKEAT/0390/05