Thanks to Ed McFarlane of Deminos HR for preparing this case summary
Should an employment tribunal conduct its own enquiries into evidence (for example, on Wikipedia during an adjournment)?
No, held the EAT in East of England Ambulance Service v Sanders.
After hearing evidence on a preliminary point relating to disability, the employment tribunal researched a point on the internet before informing the parties of their research. The Respondent asked that the employment tribunal recuse itself, which was refused. The Employment Judge asked leading questions of the Claimant about her condition. The EAT upheld the Respondent's appeal and remitted the case.
The EAT considered Rule 41 noting "Rule 41 does not, in our view, allow a Tribunal to make enquires on its own behalf into evidence which was never volunteered by either party". An employment tribunal may ask questions of those before it, but to elicit evidence: "not the evidence which the Tribunal wishes to hear but the evidence which the witness wants to give, as best the Tribunal can understand it".
The EAT advised employment tribunals that "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)...".
The EAT noted that there was the risk of an appearance of bias arising from the position in which the employment tribunal had put itself, and noted that criticisms of the Respondent's cross-examination was of matters that the employment tribunal was entitled to control.
The EAT also made general observations on the importance of parties highlighting relevant passages in authorities bundles.