20 November 2014Print This Post

Employment tribunal did research on Wikipedia “to help litigant in person”

the internet

Tribunal not permitted to “make enquiries on its own behalf”

An employment tribunal which decided to carry out its own internet research, apparently to help a litigant in person, has been condemned by Mr Justice Langstaff, president of the Employment Appeal Tribunal (EAT).

“A judge’s job is to adjudicate impartially on a dispute between the parties in the case before him,” Langstaff J said. “It is not to advocate the case for either.”

The president said an employment tribunal was not permitted to “make enquiries on its own behalf into evidence which was never volunteered by either party”.

He went on: “The tribunal may, in an appropriate case, ask the parties whether they have thought about particular evidence or even, possibly, whether in an appropriate case the parties or one of them would wish an adjournment in order to obtain it.

“But it is not, as the judge appeared to think, for the tribunal itself to investigate the evidence and rely upon its own investigations.”

The EAT heard in East of England Ambulance Service NHS Trust v Sanders [2014] UKEAT 0217_14_1710 that Mrs Sanders, a litigant in person, claimed she had been unfairly dismissed and discriminated against on the grounds of disability.

It was agreed that the employment tribunal would decide, as a preliminary issue, whether Mrs Sanders, who suffered from depression, was disabled within the meaning of the Equality Act 2010.

Mr Justice Langstaff said the claimant’s depression had a “long history” and was exacerbated by a back injury. Answering questions from the tribunal judge, Mrs Sanders said she had taken an 80mg tablet of citalopram, an anti-depressant which she had been prescribed.

Towards the end of the first day of the hearing, Langstaff J said the tribunal retired.

“At that stage, and without prior reference to the parties, it began to conduct research on the internet. At least one of those enquiries, it may have been only one, was to ask about the dose of citalopram. It looked at Wikipedia.”

Langstaff J said the issue of dosage had not been raised by either, save in a question and answer which “gave rise to no obvious issue”. He said it was unclear why the tribunal did the research, but it “may have appeared” it was trying to find evidence favourable to the claimant.

He said the tribunal told the parties what it had done, after which “three printouts, one from Wikipedia, one from a South African electronic package inserts website, and one from www.drugs.com, were then passed to the parties”.

Langstaff J said the judge asked Mrs Sanders if she was aware that she had been taking the maximum dose of citalopram and whether her GP had described her as “severely depressed”. The tribunal appeared to accept uncritically the accuracy and reliability of what had been discovered

The following morning counsel for the NHS trust made an application that the tribunal should recuse itself, but this was rejected.

Langstaff J said: “The tribunal may, in an appropriate case, ask the parties whether they have thought about particular evidence or even, possibly, whether in an appropriate case the parties or one of them would wish an adjournment in order to obtain it.

“But it is not, as the judge appeared to think, for the tribunal itself to investigate the evidence and rely upon its own investigations. The tribunal is… to act as the adjudicator not as advocate.”

Ordering the case to be remitted to a fresh tribunal, Langstaff J said the tribunal had adopted “an attitude, possibly in reaction to the criticism of its accessing the internet for itself, which it thought it was entitled to, that to an extent appeared to be hostile to the [defendant]”.

He added: “At one stage the employment tribunal said that what it had done by accessing the internet had done no harm to anyone, whereas to the contrary it had exposed both parties to the costs and expense of an appeal, and significantly delayed the resolution of a case the claimant wished to be resolved as soon as possible.”

By Nick Hilborne

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