Sun, 11 Jan 2015
Richard Adkinson reviews the recent decision of NHS Trust v Sanders UKEAT/0217/14/RN which concerned an appeal arising out of a Tribunal performing its own internet research.
A vexed question: Where is the boundary between assistance and being in the arena? And how does the internet impact on that. The latest attempt to give guidance is the curious case of East of England Ambulance Service NHS Trust v Sanders UKEAT/0217/14/RN before Langstaff P and 2 lay members.
The Facts
Mrs Sanders asserted she was disabled. It was a preliminary issue to resolve at the start of a 6 day hearing. Her alleged disability was depression. Her disability impact statement went into detail about why she had depression but not about its impact on her normal day to day activities. A single joint expert had concluded that her symptoms were mild and not of significant impact on her normal day to day activities. She gave evidence, prompted by the tribunal about the medicines she was taking. She revealed she was not taking the full prescribed dose.
After submissions and retirement the tribunal decided it would do some research of its own. No-one knows why. It loaded Wikipedia to enquire about dosages of the anti-depressant she was taking. It also looked at least at a South African website and www.drugs.com.
Pausing here, it is worth noting – as the EAT did – that that juries in criminal trials are now told not to research things on the internet. Research (ironically on the internet) reveals that judges have in the past imprisoned jurors for researching a case on the internet and there are great concerns on the impact on the integrity of the jury system both here and in other common law jurisdictions that use juries e.g. the USA.
The tribunal went back and revealed what it had done. It said that an issue had arisen about the dosage the Claimant was on. It handed printouts of the websites to the parties. The tribunal then asked the Claimant various questions, including “Did [the GP] describe you as severely depressed?” The Claimant did not expressly agree with this.
The Respondent asked the Tribunal to recuse itself: It had started to investigate evidence for itself, exceeding its role in the process, and assumed what was on the internet was true.
The Employment Appeal Tribunal
The Respondent provided the EAT with an affidavit of what had transpired. The EAT asked the tribunal for comment but got only “pejorative remarks.” The EAT remarked that “Tribunals should understand that when they are asked by the EAT to provide their comments on an affidavit asserting facts from which bias or irregularity may be inferred, they are being asked about the facts of what happened. A fact may of course include the reason why the Tribunal acted as it did. What it does not extend to is argumentative matter, commenting upon the motives of, or casting aspersions upon, a party before it.”
The EAT reviewed the case law that sets out the dividing line between assisting a witness and entering the arena, in particular Yuill v Yuill [1945] P 15 and Jones v National Coal Board [1957] 2 QB 55, and the disability discrimination case of NcNicol v Balfour Beatty Rail Maintenance Ltd [2002] ICR 1498, a disability discrimination claim.
The EAT also had its attention drawn to rule 41 which provides “The tribunal may regulate its own procedure and shall conduct the hearing in the manner it considers fair having regard to the principles contained in the overriding objective. The following rules do not restrict that general power. The tribunal shall seek to avoid undue formality and may itself question the parties or any witness so far as appropriate in order to clarify the issues or elicit the evidence. The tribunal is not bound by any rule of law relating to the admissibility of evidence in proceedings before the courts.”
In deciding what to do, the Tribunal concluded as follows:
· Tribunal proceedings are not inquisitorial,
· Tribunals cannot make enquiries into evidence that was not volunteered by a party,
· However it can enquire into whether it has thought about giving particular evidence or even if the party wants an adjournment to obtain it,
· It is not the job of the tribunal to find evidence to support one party’s case or another,
· Rule 41 allows a degree of intervention greater than that in civil courts,
· However rule 41’s purpose is to elicit the evidence that the witness wants to give, not the evidence the Tribunal wants to hear,
· Questions from Tribunals should be non-leading to ensure the most reliable answers,
· It is a procedural irregularity for the Tribunal to access the internet – just as in the criminal courts,
· In tribunals the matter is capable of remedy – it depends on what happened after the tribunal discloses the irregularity,
· Presuming the truth of what one finds on the internet is an error as it puts improper weight on the material,
· In assisting one party, it should be cautious not to cross the line between impartiality (which it must maintain) and acting as an advocate (which it must never do).
· Tribunals should exercise powers to control cross-examination if they think it necessary – not complain about it later,
· Tribunals should also order disclosure if they need certain documents, not simply complain no-one has offered them.
Finally, the Tribunal also took the opportunity to comment on EAT procedure: if a person is relying on authorities, mark up the relevant parts!
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