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Tribunal criticised for conducting own research


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East of England Ambulance Service Nhs Trust v Sanders (Practice and Procedure) [2014] UKEAT 0217/14/1710 is an interesting employment case involving a litigant in person via Neil Rose. I do not think it is at all unusual for immigration tribunal judges to conduct their own research and I’ve been presented by, for example, a Daily Mail article about a client’s relative by a judge on the morning of a hearing. There are obviously important differences between the employment and immigration jurisdictions and the role of the tribunal in each but nevertheless the issues around inquisitorial vs adversarial, descending into the arena and raising new issues of the tribunal’s own motion are all thought provoking.

The headnote reads:

PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity

An Employment Tribunal heard evidence and submissions on a preliminary issue of disability, and retired to consider its decision.  It then researched the Internet, without prior reference to the parties, to ask a question about whether there had been no obvious prior issue between the parties (the Claimant being a litigant in person).  It was unclear why it had done so, since what was found was of dubious relevance, though it may have appeared it was trying to find evidence which might favour the Claimant.  Having returned into the hearing, it told the parties what it had found out.  It then asked further questions, appearing to accept uncritically the accuracy and reliability of what had been discovered.  It rejected an application to recuse itself, but did so in terms which, when added to those of comments made on an affidavit filed for the Appellants, indicated to the Appeal Tribunal that it had an animus toward the Appellant, not least by appearing prepared to criticise a consultant psychiatrist joint expert for not having approached his examination of the Claimant properly, when there was no evidential basis at all for this criticism.

The Employment Tribunal appeared to think it was free to conduct its own research into the facts surrounding what had happened.

Held: It should not have tried to obtain its own evidence; the role of an Employment Tribunal is accusatorial, and assisting litigants in person to give the best evidence they would wish to give to make their case should not be confused with making a case for such litigants which they have never tried to make.  The Employment Tribunal here descended impermissibly into the arena, compounded that by making comments to the Employment Appeal Tribunal seeking to construct arguments (here in support of the Claimant) rather than stating facts, and appeared from what it said to be hostile to the Appellant.  The appeal was allowed.

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.