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Sleepy Tribunals

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What to do when a tribunal member falls asleep?

It's been established for some time (see, for example, Stansbury v Datapulse) that a decision can be set aside if a member of the tribunal appears to be asleep.

But matters now go further. In Fordyce v Hammersmith & Fulhan Conservative Association, the EAT was asked to grapple with the situation where a wing member had apparently fallen asleep not one, but twice!

The first time, Counsel raised the problem with the tribunal but agreed to continue. The second time, Counsel did not complain but, instead, appealed the decision.

The Employment Appeal Tribunal held that, by initially agreeing to continue, Ms Fordyce had waived her right to object to the initial episode of slumber. But the right to object arose again when the wing member nodded off a second time (although, according to the decision, he was still turning pages in an automaton-like state), and so the tribunal's decision was set aside and a rehearing ordered. Funnily enough, the EAT ordered the case be heard by a different tribunal!

Fordyce v Hammersmith & Fulham Conservative Association