EAT decision overturned on appeal due to drunken nap

The Court of Appeal has overturned an Employment Appeals Tribunal (EAT) decision that refused a sacked worker a new hearing despite concerns that one tribunal member had been drunk and asleep at the original hearing.

However, even if successful at a new hearing, the applicant is unlikely to benefit financially, because since the time of the original trial the company, Datapulse, has become insolvent.

This case coincides with a similar situation, when last week it was revealed that the three men who plotted to rob the £200m diamond from the Millennium Dome are to appeal their case on the grounds that the judge was asleep during parts of the trial.

The Court of Appeal found in the case of James Michael Stansbury v Datapulse plc that the EAT was wrong to state the original hearing was fair and complied with Article 6 of the European Convention on Human Rights.

“A hearing by a tribunal which includes a member who has been drinking alcohol to the extent that he appeared to fall asleep and not to be concentrating on the case, does not give the appearance of the fair hearing to which every party is entitled,” said Lord Justice Gibson, handing down judgment for the Court of Appeal.

Stansbury, who had been employed by Datapulse for five years, was dismissed on 20 September 2000 on grounds of redundancy. He brought a case for unfair dismissal, which was heard on 25 May and 20 July 2001, but it was ultimately rejected by the employment tribunal. However, Stansbury sought a review of the decision, in part because he believed one of the tribunal members was drunk, and at times asleep, during his hearing.

In response, the member in question, Philip Eynon, disputed the allegations of smelling of alcohol, although he did not deny having taken alcohol. Eynon also denied having fallen asleep during the hearing, although in a letter of response said: “I may on occasion close my eyes to concentrate.”

Indeed, Eynon’s behaviour seemed somewhat confusing. Stansbury’s counsel Jennifer Kavanagh said: “It’s fair to say his behaviour was rather odd, and was such as to give the impression that he may have been drunk. Throughout the hearing he shuffled about a little, made facial expressions and occasionally made comment to the chairman.”

Mr Justice Wall, giving the judgment of the EAT, said: “It is, it seems to us, reasonably clear that Mr Eynon had consumed alcohol, and it may be that, as he himself says, when closing his eyes he did fall asleep.” But because the chairman and the other lay member also rejected Stansbury’s case, the EAT upheld the tribunal’s original decision.

“Even if we assume that Mr Eynon may have fallen asleep and did consume alcohol, that’s not sufficient in our judgment to enable this tribunal to say the hearing was unfair and that it is in the interests of justice for this case to be reheard,” said Judge Wall.

The Court of Appeal, however, disagreed. Judge Gibson said: “In my judgment, we should say firmly that the conduct of Mr Eynon at the hearing was wholly inappropriate for any member of a tribunal.”