Thursday, 13 November 2014

Employment tribunal not allowed to make enquires on its own behalf into evidence not volunteered by either party

In East of England Ambulance Service NHS Trust v Sanders the EAT has held that a tribunal committed a procedural error in searching on the internet for evidence that supported a claimant’s case that she was disabled, and in relying on that evidence in its conclusions. The tribunal thereby gave the impression of bias against the respondent employer. This was compounded by the tribunal preventing forensic cross-examination of the witness claiming to be disabled and itself asking leading questions.

As an aside, Mr Justice Langstaff, President of the EAT, went on to raise a seemingly novel procedural issue. He pointed out that the bundle of authorities contained no marking of the passages that were to be relied upon.

Langstaff P warned that, in future, a party who turns up to pursue an appeal wishing to rely upon an unmarked bundle may be required to mark all the bundles before the case begins, and must be prepared to give sufficient time to the other side, especially if a litigant in person, to consider those passages. If this gives rise to a risk of the matter being part-heard or adjourned when it would not otherwise have been, then that party must be prepared to defend any resulting costs application.

EAT judgment

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