In a recent Judgment overturning a Norwich Employment Tribunal decision that a Claimant was disabled the Employment Appeal Tribunal has reminded Employment Judges (and lay members) that there role is to adjudicate and not investigate.
In the Courts and Tribunal in this country we generally have an adversarial (the parties fight it out with the Judge as the final decision maker) than an inquisitorial (the Judge investigates with the help of the parties to get to the truth) system.
Mrs Sanders brought a disability discrimination claim against an NHS Trust. A joint expert report was obtained which concluded that her depression was mild and did not have a significant effect on her day to day activities. This would suggest that she was not "disabled" as defined by the Equality Act 2010, which is an essential prerequisite to a Claim for disability discrimination.
During her evidence Mrs Sanders, who was not legally represented, was asked questions by the Employment Judge about the medication she was taking.
After the evidence was completed and legal submissions had been made the Tribunal retired to consider its decision on the issue of disability.
When they returned they informed the parties that they had done their own research on the internet and had found some information on Wikipedia and a couple of other sites which led them to the conclusion that Mrs Sanders had been prescribed the maximum dose of medication. This appears to have contributed to their ultimate conclusion that Mrs Sanders was disabled.
The parties were given time overnight to consider their positions and in the morning the Respondent applied for the panel to recuse itself (i.e. step down) on the basis that they should not have done their own research and it gave the appearance of bias.
The Tribunal declined to go along with this application and following the decision in Mrs Sanders' favour the Trust appealed.
The EAT reminded the Tribunal that whilst it was legitimate to ensure that an unrepresented party was given sufficient assistance and leeway to enable him or her to put across her case, the Tribunal's duty was to decide the case on the evidence that was presented to it. If there were deficiencies in the Claimant's evidence it was not for the Tribunal to plug the gaps through their own research. This is particularly so given the notorious unreliability of information on the internet, especially in respect of medical matters.
By carrying out these investigations the Tribunal had given the impression that it was looking to bolster the Claimant's case. This gave the appearance of bias, and the Tribunal should have acceded to the recusal application.
When a party to an appeal to the EAT alleges bias, the Employment Judge will usually be asked for an affidavit setting out his or her recollection. The EAT reminded the Tribunal that this should set out the facts and not argument, and criticised the defensive nature of the affidavit lodged in this case, from which the Judge appeared to be labouring under the misapprehension that it was appropriate for him to put forward the arguments for rejecting the appeal given that the Claimant was unrepresented.
The appeal was allowed and the case was sent back to the Employment Tribunal to be heard by a fresh panel.