“VERY UNFORTUNATELY, ON TWO OCCASIONS… THE … JUDGE FELL ASLEEP”: APPEAL ALLOWED

In Science Museum Group v Wess [2019] UKEAT 0260 HHJ Auberach made a finding that the Employment Judge had fallen asleep. The appeal was allowed on this ground alone.

“I find as a fact that, very unfortunately, on the afternoon of day one, 27 March 2018, during the course of the Claimant’s cross-examination, the Judge fell fully asleep not once but twice, on each occasion more than just momentarily…”

THE CASE

The Science Museum Group brought an appeal against certain findings against in in the Employment Tribunal.  One of the grounds was that the Employment Judge fell asleep.  This was established on appeal.

THE EVIDENCE ON THE JUDGE FALLING ASLEEP

HHJ Auberbach considered the evidence on the Employment Judge falling asleep.

    1. When a ground of appeal turns on the alleged conduct of a member of the Tribunal panel during the course of the hearing, and there is a factual dispute about what did or did not actually occur, it is the responsibility of the EAT to determine that dispute and make the requisite findings of fact. See: Stansbury v Datapulse [2004] ICR 523 (CA).
    2. The same procedural approach is taken, whether the allegation is of actual or apparent bias, or some other conduct on the part of a Tribunal member said to have affected the fairness of the process. Statements are obtained from the parties’ witnesses, who may be cross-examined at the hearing before the EAT. Statements are also sought from the Judge, or all members of a three-person Tribunal, and, as relevant, the Judge’s notes may be obtained. However, members of the Tribunal panel are not called for cross-examination before the EAT. See: Facey v Midas Retail Security Limited [2001] ICR 287 (EAT) and the EAT’s Practice Directions of 2013 at paragraph 13 and of 2018 at paragraph 12.
    3. The following written evidence was before me.
    4. Mr Jennings, in a statement of 26 July 2018, describes how the Claimant gave evidence between about 2.30 and 4.30 pm on the afternoon of 27 March 2018. He states: “During this two-hour period, I witnessed Employment Judge Stewart fall asleep twice.” He continues:

“6 At around 3.00 PM, 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. After a short time, perhaps a minute or two, he regained consciousness and composed himself.

7 At approximately 3.30 PM Mr Sheppard noticeably increased the volume of his voice, and then on a number of occasions landed his cup loudly against the desk in front of him. I looked up and, again, Employment Judge Stewart’s head was slumped and his eyes were closed. Mr Sheppard tried to get his attention. On three or four occasions Mr Sheppard (assertively) said “Sir”. Judge Stewart visibly regained consciousness and composure. At that point Mr Sheppard suggested a short break.”

    1. Mr Jennings goes on to describe discussing what had happened with Mr Sheppard, and their clients, during that break.
    2. Mr Sheppard, in a statement sent in on 26 July and signed on 17 August 2018, endorses what is said by Mr Jennings. He adds:

“5 I too noticed Employment Judge Stewart fall asleep twice, albeit, on the first occasion, I only witnessed a loss of consciousness briefly, as I was focussed on cross-examination of the Respondent.

6 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. Thereafter I suggested a short break, to which the Judge agreed.”

    1. The Claimant put in a statement from her husband, Mr David Pinto, dated 2 August 2018. He begins by saying that he accompanied her “at the hearing during its second day”. He states that his recollection differs from Mr Sheppard’s. It is that the Judge “now and then adopted what called be called a meditative posture: upright with hands placed together on the desk before him, head cast down, even possibly eyes closed, for about 5 – 8 seconds at a time.” His opinion is that the Judge was “summarising or reframing internally issues raised” as part of a process of mediating between a Claimant who is a litigant in person and counsel. He adds that if Mr Sheppard felt that he needed to attract the Judge’s attention, it was never apparent; and that there was no cup, only a glass water-flask and beaker.
    2. There is a revised version of Mr Pinto’s statement, dated 22 November 2018, giving a somewhat revised description of the meditative posture that he says he saw the Judge adopt, and the way in which the Judge’s hands were placed together, with the fingers of each hand aligned.
    3. There is also a further statement of Mr Jennings, dated 27 February 2019, exhibiting an extract from the note of evidence made by a then trainee from his firm, covering the point at which, according to Mr Jennings, the Judge fell asleep for the second time.
    4. Finally, in terms of evidence from attendees at the Tribunal hearing, there is a statement from Emeritus Professor Susan Corby, of 4 March 2019, put in by the Claimant. She states that she observed the hearing on 28 March 2018 with some students who she had brought to the Tribunal. She did not observe the Judge falling asleep, nor did any of her students mention any such thing to her. She confirms she was not present on 27 March.
    5. In accordance with the established practice, written comments on the witness evidence were sought from the three members of the Tribunal.
    6. EJ Stewart, in a statement of 22 March 2019, writes:

“…I do not recall being asleep during the afternoon of 27 March 2018” during the Claimant’s cross-examination. “However, I was – and remain – very conscious that the absence of such a memory does nothing to rebut the allegation.”

He exhibits his notes of evidence for the relevant part of the hearing. He notes that he and the Respondent’s note-taker have a different note-taking style, but observes that after 15.40 she records three further questions and answers where he records none.

“…I have no explanation for my failure to record those questions and answers. It seems consistent with inattention. It might, of course, be consistent with me ruminating on the evidence being given.”

  1. Ms Jones, in a statement of 22 March 2019, says that she “made no note that the Judge was asleep during cross-examination” that afternoon, and “I have no recollection of being concerned about the Judge’s conduct of the hearing.”
  2. Mr Smith, in an email of 21 March 2019, says that he has not noted that the Judge fell asleep, and he feels that, as it would have been a significant occurrence, he would have noted it, had he observed it or felt it to be the case. He has a good memory of the case, does not recall at any time thinking that the Judge had fallen asleep or lost concentration, and would have expected to have remembered it, despite the passage of time. He adds that during cross-examination he is looking at the people asking and answering the questions, and at his note-book, not at the facial expression or appearance of the Judge or the other member.
  3. Prior to the EAT hearing both parties indicated that they had no wish to cross-examine the other party’s witnesses at the hearing. In his written skeleton Mr Brown also indicated that the evidence of Mr Pinto and Emeritus Professor Corby was of no assistance, since neither related to the first hearing day, which was when the Judge’s conduct was said to have occurred.
  4. During the course of Mr Brown presenting his argument at the hearing before me, however, the Claimant indicated that it was her understanding that Mr Pinto had intended his evidence to relate generally to the two days on which he was in fact present, being the first and second of the three hearing days. In discussion it was confirmed that there was no dispute that he had, indeed, been present on both of those days. He was also present at the hearing before the EAT, and, in discussion, it was agreed that the fair way forward (to both sides) would be for Mr Pinto to give oral evidence confirming his position, and on which he might be relevantly cross-examined by Mr Brown. Mr Pinto was entirely content to do that, and so, after a break to make the necessary logistical arrangements, this took place. The remainder of the hearing day was then spent in completing both sides’ oral arguments on all grounds, including, in relation to ground 1, drawing on the live evidence that he had had given, and to which I will return.

 

THE JUDGE’S FINDINGS OF FACT
  1. I turn to my findings of fact, as to what occurred in this case.
  2. Messrs Jennings and Sheppard are unequivocal in their statements. They both observed the Judge fully asleep at two distinct points during the afternoon of day one. A comparison of the Judge’s notes of evidence, and those of the trainee, show that there were questions noted by the trainee, running up to the point where there was a break, which were not noted by the Judge. That is consistent with, and does not undermine, these two witnesses’ account of the second of the two episodes. Nothing in the statements of the Judge himself, or the other two Tribunal members, contradicts or undermines that evidence. The Judge is candid and straightforward. He does not say he did not fall asleep, nor that he is confident that he can rule out such a thing. Nor do his colleagues say that he did not fall asleep. The fact that neither of them observed him do so, or anything else untoward, does not mean that it did not happen. Emeritus Professor Corby’s evidence does not assist. She was not there that afternoon.
  3. Mr Brown referred to the fact that 27 March 2018 was two days after the first day of British Summer Time that year; and to research evidence suggesting a “jet lag” effect on judicial alertness, of the clocks going forward. However, I attach no weight to this material, which would not, in my view, be sufficient to support an inference in a particular case such as this, or otherwise to tip the scales, were the remaining evidence unclear.
  4. So, I come to Mr Pinto. He said in oral evidence that, when he produced his first statement, he had been confused by, and misunderstood, the reference to Mr Sheppard cross-examining the “Respondent”, because of the differing nomenclature before the ET and the EAT. He produced his second statement by way of clarification, and to remove other material which he had been given to understand was not appropriate. Mr Brown observed that it was nevertheless striking that the preamble to the second statement still referred to the second hearing day. Mr Pinto said in oral evidence that, while his original statement had referred specifically to what he had observed during the evidence of Ms Boyle on day two, it equally applied to what he observed at any other time; and that he observed no significant change in the Judge’s behaviour across the two days. As to his comment that there was no “cup” on counsel’s table, he accepted that there were jugs of water and plastic beakers, and said that if there was any banging of any item on the table, it was not to a degree that he heard or saw.
  5. I accept that Mr Pinto’s evidence, taken as a whole, covered what he had to say about what he heard and saw over the course of the two days he was at the hearing. I accept (and Mr Brown did not suggest to him or me otherwise) that he was giving his genuine recollection. However, he was, though a naturally interested one, an observer at the hearing. He had no need to pay close attention to the Judge at all times; and he did not suggest that he was doing so when his wife was being cross-examined. His observations of the Judge’s posture and mannerisms, at times when he did observe the Judge, were, I accept, accurate recollections. But nothing in his evidence undermines or contradicts what Mr Jennings and Mr Sheppard say they saw. Mr Pinto may simply have not seen it; and he may also simply not have noticed Mr Sheppard’s efforts to attract the Judge’s attention, if his own attention was on other things.
  6. Standing back, I conclude that the accounts given by Mr Jennings and Mr Sheppard accurately and fairly describe what in fact happened. It could be said that, in the absence of the Judge himself stating that he was asleep, they cannot be sure that he was, only that they observed behaviours from which he appeared to be. But the very specific and clear nature of what they both say they saw leaves me in no doubt as to what I must find, on the balance of probabilities, did occur. I find as a fact that, very unfortunately, on the afternoon of day one, 27 March 2018, during the course of the Claimant’s cross-examination, the Judge fell fully asleep not once but twice, on each occasion more than just momentarily, and on the second occasion to the point where Mr Sheppard had to deliberately make a noise more than once, physically and verbally, in order to alert the Judge.
  7. The authorities make it clear that it is irrelevant that the ET’s decision was unanimous, and no barrier to this ground of appeal that the matter was not raised with the ET itself.
  8. In argument, with reference to the passage in Shodeke that I have cited, Mr Brown said that he accepted that, even in this area, there must be some de minimis principle, though he suggested the language of that passage was hard to square with the language of Stansbury. Either way, he said, the extent and nature of what happened in this case was too great.
  9. I do not think that this passage in Shodeke was intended to soften, or is at odds with, the guidance in Stansbury, which the EAT faithfully reviewed. The EAT in Shodeke did not use the language of a de minimis test, nor do I think it is particularly helpful to think about this area in that way. Realistically, there may be cases where, during the course of a hearing, a Judge or member’s attention briefly wanes or lapses, but no harm is done. The matter is acutely fact sensitive, and depends, in each case, entirely on a careful finding and evaluation of what happened: the nature and extent, and what was going on at that point in the proceedings. It is not the case that any and every lapse of attention must affect the fairness of the trial. But either what happened in a given case is such that it undermined the fairness of the trial – applying the Stansbury guidance – or it did not. This passage in Shodeke does no more than envisage a particular type of scenario in which that might be found not to be the case. But if, in the given case, the fair-minded and informed observer would conclude that there was a real possibility that the fairness of the trial was affected, then the decision cannot stand.
  10. 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. Applying the Stansbury guidance, the fair-minded and informed observer would conclude that there was, at least, a real possibility that the fairness of the trial was affected. This, very unfortunately, does, in my judgment, vitiate the decision, and I would allow this appeal on ground 1 alone.