14 November 2014 #Employment
We are perhaps all guilty of doing some quick research online to make our presentations look more credible. However, when can an employment tribunal do some research before making a decision? The answer is no, not if the parties do not agree to it.
The EAT has ruled 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 ( East of England Ambulance Service NHS Trust v Sanders).
The Claimant brought claims of discrimination and unfair dismissal against the Trust. The tribunal had to decide, as a preliminary issue, whether the symptoms of depression amounted to a disability for the purposes of the Equality Act 2010. There was a jointly-instructed expert’s report on the issue, which concluded that the depression was mild and did not have a significant effect on the Claimant’s ability to carry out normal day-to-day activities. There was also a written statement from the Claimant, which focused on the causes of the depression but said little about its effect. The Claimant was questioned on her depression and there arose some uncertainty over the dosage of anti-depressants that she had been prescribed. When the tribunal retired to discuss its conclusions it decided, without prior reference to the parties, to conduct research on the internet into the dosage that the Claimant had been prescribed. When the tribunal returned to the hearing room it told the parties what it had done and stated that it appeared that the Claimant had been prescribed the maximum dose.
The EAT allowed the appeal against the tribunal’s handling of the preliminary issue. It was not allowed to make
enquires on its own behalf into evidence that was never volunteered by either party. The tribunal may ask questions in order to elicit the evidence but this must be the evidence that the witness wants to give, not the evidence that the tribunal wishes to hear.