Appeal No.	 EAT/1255/01/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 May 2003

Before
THE HONOURABLE MR JUSTICE WALL
MS B SWITZER
PROFESSOR P D WICKENS OBE

MR J M STANSBURY	APPELLANT

1) DATAPULSE PLC 
2) TROY HOLDINGS INTERNATIONAL PLC	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	The Appellant in person	
For the Respondents	No appearance or 
representation by or 
on behalf of the Respondents

THE HONOURABLE MR JUSTICE WALL

1	This is Mr James Stansbury’s appeal against the Decision of the Employment Tribunal sitting at Reading on 25 May 2001 and 20 July 2001 with what is described as a “Decision meeting” taking place on 27 July 2001 and the Decision itself being promulgated on 15 August 2001.  Mr Stansbury had been employed by a company called Datapulse PLC as a project manager.  His case was that he had been unfairly dismissed.  The Respondent’s case was that he had been made redundant and that his dismissal was fair.  

2	The unanimous Decision of the Tribunal was that Mr Stansbury had not been unfairly dismissed and accordingly his application failed.  At the hearing both parties before the Tribunal were represented, Mr Stansbury by Mrs J Kavanagh of Counsel and the Respondent by Ms Thomson.  By means of a statement dated 23 August 2001, Mr Stansbury sought a review of the Tribunal’s Decision and amongst the reasons he put forward for seeking that review was the following paragraph:
“14  The Tribunal erred in finding its Unanimous Reserved Decision as one of the Members not only fell asleep during the hearing on 25 May 2001 but during a break on 20 July 2001 the same Member did express his disapproval of the Chairman and there was an extremely strong odour of alcohol on the Member’s breath.  This can further be substantiated by the Applicant’s Counsel Mrs Kavanagh.”

3	Mr Stansbury filed a Notice of Appeal on 21 September 2001 which contained some eighteen numbered paragraphs.  Amongst the grounds is paragraph 16 which is in these terms:
“The Tribunal erred in finding its Unanimous Reserved Decision as one of the Members not only fell asleep during the hearings of 25 May and 20 July 2001 but during a short break at approximately 12 noon on 20 July 2001 the same Member did express his disapproval of the Chairman and was apparently in a drunken state with an extremely strong aura of alcohol on his breath.  This can further be substantiated by the Applicants Counsel Mrs Kavanagh.”

4	The application for the review came before the Chairman of the Tribunal, Mr Ross, on 2 October and he refused it.  Commenting on paragraph 14 of the application, the Chairman said:
“In paragraph 14, the Applicant refers to the conduct of one of the Members, but this alleged conduct was not drawn to the attention of the Tribunal at the hearing as it should have been, since the Applicant was represented by counsel.  This is in accordance with the Court of Appeal’s decision in R v Moringiello “The Times” 25 July 1997.”
We will return to the decision of R - v - Moringiello slightly later.  

5	When an allegation of this gravity is made about the conduct of one of the members of the Tribunal, the practice is for the Appellant to swear an affidavit setting out what is alleged to have happened and for the Chairman and for the two lay members of the Tribunal to be invited to respond.  Affidavits are often sought, in addition, from any of the other professionals and other witnesses present in the Tribunal who can confirm or negative the allegations.  Mr Stansbury swore an affidavit on 9 November 2001 and in paragraph 17 of that affidavit he says this:
“The Tribunal erred in findings its Unanimous Reserved Decision as one of the Members not only fell asleep during the hearings on 25 May and 20 July 2001 but during a short break at approximately 12 noon on 20 July 2001 the same Member did, whilst returning from the Gentlemen’s toilet, express his disapproval of the Chairman and it was apparent he was in a drunken state with an extremely strong aura of alcohol on his breath.  This can further be substantiated by my counsel to whom the Member expressed his opinion and was also witnessed by the Respondent’s counsel”

6	Thus it was that when the appeal came before this Tribunal for preliminary hearing on 17 April 2002 in a constitution presided over by His Honour Judge Reid, directions were given in the following terms.  First of all Mr Stansbury was directed to file a further statement identifying the grounds of appeal upon which he intended to proceed;  secondly (and this is the relevant paragraph for our purposes):
“THE TRIBUNAL FURTHER DIRECTS that the comments of the Employment Tribunal Chairman and Lay Members be sought as to the matter raised in paragraph 16 of the Notice of Appeal and paragraph 17 of the affidavit sworn by the Appellant on 9th day of November 2001 such comments to be supplied within 56 days from today and similar comments be sought from Mrs Kavanagh the Appellant’s Counsel below, and from Ms Thomson the Respondents’ Counsel below and from the Respondents’ solicitors within 56 days of today”. 
7	As a result of that Order information was received from a number of witnesses.  They comprised, in the order we have them in our bundle, statements from the Chairman, the two lay members (Mr Carruthers and Mr Eynon),  Mrs Kavanagh and Ms Meredith Thomson, a barrister employed by the EEF,  who had conducted the Respondents’ case before the Tribunal. Statements were also taken from three of the Respondents’ witnesses.  

8	The Chairman, in his comments, said this:
“1.  This point is almost identical to the point raised by the Appellant when he sought a Review of our original decision.  I refused that application on the grounds that I considered that it had no reasonable prospect of success.  I dealt with this particular point in paragraph 13 of the extended reasons attached to my decision.  A copy of the application and decision and reasons are enclosed with these notes.”
2.  At no time during any part of the hearing was I aware that either of my two lay members fell asleep; nor at any time during or, indeed, after the hearing did either of the party’s representatives bring this allegation to my attention.  Had they done so then I would have made enquiries and taken appropriate action. 
3.  Since clearly I was not present when one of my members is alleged to have expressed disapproval of me I was unaware of this.  Again, at no time did either representative mention this matter to me.  
4.  During the course of the hearings which lasted two days I did on occasion smell alcohol on the breath of one of my members, Mr Eynon.  I had no reason to think that this in any way impaired his ability to participate properly in the proceedings.  Again, at no time did either representative mention this matter to me or make any representations about Mr Eynon’s continued participation in the proceedings.”

9	At page 56 of our bundle is the statement of Mr Carruthers who points out that the member complained of is not identified; however, concerning himself he says that:
a.  I confirm I did not fall asleep at any time during the hearing.
b.  I have never taken alcohol before a hearing or during any break in the hearing.
c.  I did not at any time during the hearing make any derogatory comment to either of the parties concerning the chairman or my fellow tribunal members.  It would be most discourteous to do so and is not my style.
d.  I am always very careful not to comment about the case or the hearing to any of the parties in a case if I should see them on the tribunal premises.”
He then goes on to make further comments as follows:
“a.  I did not observe my fellow lay member fall asleep.  Whilst concentrating on the case being presented it is not easy to look back to the other side of the chairman without standing up to make such observation.
b.  I did not witness my fellow lay member make the alleged comment about the chairman.
c.  I am conscious of the fact that my fellow lay member was outspoken on a number of matters to do with the case but these were always resolved by the chairman in a fair and equitable way.  
d.  I do not know whether or not my fellow lay member took alcohol at any time during the hearing.  The words “…. in a drunken state” are, in my view, not substantiated.”

10	We then have the brief statement of Mr Eynon which reads as follows:
“I notice in paragraph 16 they refer to “a member”, although not named.  Given that I have been spoken to by the Regional Chairman, Mr Edwards, about this matter, I would assume that I am the person referred to.  
In response I would say the following:-
1.  Any comments regarding the Chairman were not made in any way in relation to his conduct of the case but in relation to how he was dealing with me personally on a question and answer basis.  
2.  I have never fallen asleep during a hearing although I may on occasion close my eyes to concentrate.
3.  The allegations of me smelling of alcohol I dispute.”

11	There is then a statement from Mrs Kavanagh, dated 29 April 2002.  She points out that the hearing was some time ago, but she had taken the opportunity to read her notes and her correspondence.  Under the heading “Falling asleep” she says:
“2.  Mr Stansbury says that a lay member of the tribunal fell asleep during the hearing.  This is not something which I witnessed or which Mr Stansbury or any other person brought to my attention during the hearing.”
And then under the heading “Drunken lay member” she says 
“3.  The Appellant maintains that the lay member was plainly drunk.  This was never raised by Mr Stansbury with the Solicitor’s representative, Mrs Lamacraft, or with me at the time of the hearing.  Consequently I never raised the same during the hearing.
4.  As to that lay member’s behaviour at the hearing it is 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 comments to the chairman.
5.  Mr Stansbury is clearly of the view that this supports his view that the member was drunk.  On reflection I cannot say whether this member was simply a more animated member than usual, whether he is an eccentric character or whether he was suffering some medical ailment or whether he was indeed drunk.  However I cannot recall him smelling strongly of alcohol, slurring his word or falling about in a drunken stupor.
6.  In any event his conduct did not interfere with the hearing, for as I recall he played no part in questioning the witnesses, and indeed, apart from his occasional muttered comment to the chairman he remained quiet throughout the hearing.
7.  There was only one occasion when I had cause to be close enough to the lay member to smell his breath.  That was when myself, the Appellant and Mrs Lamacraft were waiting to return to court, and the said lay member had to pass by the Respondents and through us.  It was an awkward moment and the lay member muttered a comment.  I do not recall the precise words said but I do remember thinking that the remark had no bearing on the proceedings.  I do recall a slight smell of alcohol, yet as we were returning from lunch it was my assumption that he had taken a little something with his lunch.
8.  For the avoidance of doubt it must be stated that during the hearing I did not raise the lay members conduct with the chairman because:
i) it was not an issue during the hearing.  It only became an issue once Mr Stansbury received the determination of the Tribunal.
ii) Even had I been concerned at the hearing, which I was not, it would have been highly improper of me to cast aspersions on the demeanour of the lay member with no good, solid reason to do so.”

12	There is then an affidavit from Ms Thomson, that barrister appearing for the Respondents.  Having set out the allegations, she says:
“3.  Mr Stansbury suggested in his affidavit that, on 20 July 2001, during a brief adjournment, I witnessed a lay Member expressing his disapproval of the Chairman to his Counsel, Ms Kavanagh, and suggests that I can specifically corroborate his allegation that the lay Member was in a “drunken state with an extremely strong aura of alcohol on his breath”.
4.  I have no particular recollection of the short adjournment at noon on 20th July referred to by Mr Stansbury but this may well have occurred.  Over the course of the two days of hearing, there were a number of occasions on which I passed Members of the Tribunal in the corridors.  I did not observe anything untoward in their behaviour at any point.  I can categorically state that I did not smell alcohol on the breath of any lay Member.  Nor did I hear any lay Member expressing disapproval of the Chairman, to Ms Kavanagh or any one else.
5.  I have a reasonably clear recollection of the two days of hearings in this case.  At no point did I observe any Member of the Tribunal sleeping or falling asleep.  Further, throughout both days of hearings, witnesses on behalf of the Respondent were present in the Tribunal room either waiting to give their evidence, or observing the proceedings after they had done so.  As they were directly facing the Tribunal, they were well placed to notice if a Member of the Tribunal was falling asleep.  At no time did any of them tell me they had seen this happen.  If they had done so, I would have drawn the matter to the Chairman’s attention.  At that stage, of course, no decision had been made, and it would have been as much in the Respondent’s interests as the Applicant’s to have such behaviour noted.”

13	The evidence of the remaining witnesses is in similar form.  Firstly, Amber Clayton, a personal assistant to the managing director of Datapulse, says:
“I observed all three members of the tribunal panel during both days.  At no point was I concerned about any of the members’ understanding of or involvement in the proceedings.  They all appeared to be paying attention and to be involved in the proceedings throughout.”

Mr Ross, a customer services manager, says very much the same as does Mr Waddington.  However, Mr Waddington says in paragraph 4:
“I did not see or hear anything in the course of either hearing that might have indicated that one of the lay Members was under the influence of alcohol.  Nor did I see any Members of the Panel sleeping.  I do, however, recall that on one of the hearing dates (I cannot remember which) the lay Member sitting on from my perspective the left hand side of the Chairman momentarily closed his eyes.  It seemed to me that he was concentrating, not sleeping.  This is because he was sat upright and with his head held normally.  He appeared attentive throughout, fully participating when the Chairman conferred with the Members and asking questions.”

14	That then was the material put together for the purposes of the preliminary hearing.  Having seen it, Mr Stansbury asked for further and better particulars, including, in paragraph 7 of that request this request:
“Is it true, during the hearings on 25 May 2001 or 20 July 2001, the Chairman, Mr Ross, was given to raising his voice on at least two occasions in a clear attempt to re-establish the attention of Mr Eynon, who not only had fallen asleep, but was also snoring and hence gave cause for the Chairman to raise his voice?”

That application for further enquiry was refused by the Registrar and those questions were therefore not addressed to the members.  

15	When Mr Stansbury’s appeal came on for hearing before this Tribunal by way of preliminary hearing on 13 September 2002, in a constitution presided over by His Honour Judge Burke QC, Mr Stansbury was represented by a barrister appearing under the ELAAS scheme, a Ms Reindorf.  The upshot of the hearing was that Mr Stansbury was allowed to proceed on the single ground in his Notice of Appeal, number 16, and the appeal on the remaining grounds was dismissed.  In a characteristically careful and lucid judgment, the judge deals with the other grounds and then recites the evidence which had been collected about the conduct of the third member.  He then focuses in particular on the evidence provided by Mrs Kavanagh.  Having recited it, he continues: -
19    If what we have summarised so far stood alone, we would have thought that it was so unlikely that Mr Stansbury’s allegation was ever going to get home that there was not an arguable case in support of it.  However, Ms Reindorf has shown us what appears to be an unsigned Opinion in Mrs Kavanagh’s name.  It is unsigned we are told because it was sent by email, by Mrs Kavanagh to Mr Stansbury’s solicitors and then sent on to Mr Stansbury by him.  We have seen an email from the solicitors to Mr Stansbury in which they send the Opinion on to him.  On the face of it, it appears therefore that what we have got, albeit unsigned, is genuinely Mrs Kavanagh’s Opinion”.

16.	It is indeed the case, as we now know, that we do genuinely have Mrs Kavanagh’s opinion and we will recite the last two paragraphs of that opinion, paragraphs 8 and 9:
“8.  Another ground for appeal could be that the tribunal misconducted itself.  In the present case that ground does have some merit because of the actions of one of the tribunal members who was plainly drunk and not following the proceedings.
In order to do so he is going to have to establish with the Reading Industrial Tribunal the name of that drunken panel member (My suggestion is that he enquires as to the name of the bald member, thus the drunken member was the other name).
9.  If the appellant is to go down this route he will require an affidavit from both myself and Mrs Lamacraft to substantiate his allegations as to the drunken demeanour of the panel member.”

17.	We also have another reference,  which has now been produced to us in an e mail from Mrs Kavanagh which makes it quite clear that at that time she appeared to be expressing the view that one of the members had been drunk, because in the e mail from Mr Stansbury to Mrs Kavanagh, which is dated 18 September 2001, he says:
“Of the drunken Member, you may recall there was a short break following Mr Waddington’s evidence and before the commencement of my evidence at approximately 12 noon.  During this break the alleged Member was returning from the men’s room and expressed his disapproval of the Chairman.  In doing so it was evident he had been drinking alcohol and was in a drunken state and did further, on occasions during the hearings on both days fall asleep.”

18.	That is then responded to by Mrs Kavanagh in an e mail, part of which has been blanked out as containing privileged material. However,  she says this in terms:
“I accept that one of the tribunal members was drunk, and although I am told that Mr Stansbury has said that one of the members was asleep I am afraid I cannot confirm that.  It was not something I witnessed.”

She then went on to deal with the merits of his appeal.  

19	Returning then to the preliminary hearing before the EAT in the constitution presided over by Judge Burke QC, the judgment continues in paragraph 20:
“20 In that Opinion  …….. Mrs Kavanagh is plainly expressing the view and the recollection that one of the members was “plainly drunk”.
21	How it comes about that that appears in Mrs Kavanagh’s Opinion but something rather different appears in her comments of 29 April 2002 is not for us to begin to explore; but we have to say, having considered it at some length and with great care, that the result of those two documents taken together, and looking at all of the documents on this issue, is that we think that here there is an arguable ground and that Mr Stansbury should not be shut out at this stage.  
22	How it will be resolved is something we would not even begin to and should not speculate upon; but in the light of that conflict and in the light of the fact that it appears, on the face of what we have seen, that Mr Stansbury’s counsel has at some stage said that a lay member was plainly drunk, we feel that Mr Stansbury must have the opportunity, however difficult the prospect for all concerned, to put this matter before the Employment Appeal Tribunal at a full hearing.”

20.	The consequence of that was that the EAT gave further directions for the presentation of evidence designed to resolve the conflict in what Mrs Kavanagh had said.  The Respondents put in an answer, in which they specifically joined issue with the contents of paragraph 16 and referred to the evidence that had been put in on their behalf. The EAT ordered a special directions hearing designed to ensure that this appeal should be fully prepared and ready. Amongst the directions that were given at that hearing presided, over by His Honour Judge McMullen QC on 13 February 2003 was the following:
“By 27th of February 2003, 4 pm, Counsel for the Appellant below is directed to comment on the Appellant’s allegation at paragraph 17 of his affidavit dated the 9th day of November 2001 and question 7 of the Appellant’s Request for Clarification which was received at the Appeal Tribunal on the 18th day of July 2002 such comments to be by way of an affidavit which disposes to the truth of her comments dated the 29th day of April 2002 (if appropriate) and deals in detail with the Appellant’s evidence, explaining the apparent conflict between her opinion and her comments to the Appeal Tribunal and exhibiting any relevant documents.”

21.	There was also an Order against Mrs Lamacraft.  She was directed to comment on the Appellant’s allegation at paragraph 17 of his affidavit of 9 November 2001 and question 7 of his Request for Clarification:
“such comments to be by way of an affidavit which deals in detail with the Appellant’s evidence, and exhibits any relevant documents.”

22.	Mr. Stansbury himself was directed to disclose and instruct his representatives below to disclose to the Respondent a copy of Mrs Kavanagh’s Opinion, drafts and instructions of any other relevant documents.  The EAT then went on to deal with the question of whether there would be fresh evidence, and, if so, what form it should take.  
23	Most unfortunately, Mrs Kavanagh did not file her affidavit in time and Mrs Lamacraft has not filed one at all.  The EAT granted Mrs Kavanagh an extension but she was out of time in relation to that as well.  The document which finally arrived is one which we have in our papers, but not surprisingly, Mr Stansbury took the point that Mrs Kavanagh’s affidavit was out of time and he submitted that we should not look at it.  At the same time, and no doubt out of an abundance of sensible caution, he put in a substantial document dealing with it, as it were, line by line and paragraph by paragraph. 

24.	At the very outset of this appeal, this issue was raised by us and we discussed it with Mr Stansbury.  It seemed to us that he really was faced with a choice: either Mrs Kavanagh’s affidavit went in, in which case he could comment fully on it; alternatively, we would put it on one side and take no notice of it, but if we did that we clearly could not look at the comments which he had made.  We offered him a short period of reflection on this point. After consideration,  he (if we may say so)  very sensibly took the view that to deal with the affidavit from Mrs Kavanagh would be likely to lengthen the hearing very substantially and the better course  -  the preferred course from  his point of view  - was to deal with the matter without looking at it and without commenting on it. That is the course which we have adopted.  

25	We would like to say that in presenting his appeal to us, Mr Stansbury has been moderate, very clear and very careful.  We pay tribute to the way in which he had argued his appeal.  We made it clear to him, and he readily accepted, that his relationship with his former lawyers, and with Mrs Kavanagh in particular, is nothing to do with us.  Our function, as we see it, and I think Mr Stansbury accepts, is to decide whether or not he had a fair hearing before the Tribunal within Article 6 of the European Convention on Human Rights.  That Article provides, of course, that everybody is entitled to a fair hearing before a public tribunal within a reasonable period of time, and the question here is whether or not the conduct of the Tribunal, and, in particular, the conduct of the one member has been such as to vitiate the fairness of the hearing. It is to that issue which we must, of course, address this judgment.  We have, however, deliberately taken the opportunity to set out all the material before us in some detail because it is, we think, important that we should look at it in the round.  

26	The first point which Mr Stansbury took, and it is a fair one, is that R - v - Moringiello is a criminal decision, only reported very briefly in The Times newspaper and it makes the point that where a criminal case is proceeding with barristers and solicitors representing the defendant, it really is the responsibility of Counsel to bring immediately to the judge’s attention, often in the absence of the jury, any untoward incident which needs to be dealt with at once, because otherwise it may well affect the fairness of the trial.  

27	In the case to which Mr Stansbury has referred us, Kudrath v Ministry of Defence (Judgment delivered 26 April 1999) a decision of this Tribunal presided over by the then President, Mr Justice Morison, a distinction was drawn between criminal proceedings and proceedings of this Tribunal or an Employment Tribunal. We think it worthwhile repeating part of what Mr Justice Morison said. We  quote from page 14 of the transcript we have been provided with:
“Finally, we wish to say that whilst it is clearly preferable that the advocates, representatives or parties themselves should complain, at the time, that the Tribunal does not appear to be fully alert, in the context of litigation in the Employment Tribunals we regard it as unrealistic to expect that that will always be sensible or practicable.  In the Moringiello case, there was a criminal trial before a Judge and jury.  The jury are the fact finders.  Both parties were represented by counsel at the hearing.  It would have been possible, without difficulty, to make an application to the Judge, in the absence of the jury, about the Judge going to sleep, without fear that umbrage would or might be taken and the facts found against the complainant.  In the Employment Tribunal, in many cases, one of the parties will be unrepresented by a lawyer.  It would, we think, be a denial of justice were the EAT to refuse to intervene where a Chairman appeared to fall asleep, or was guilty of any other misconduct, if no complaint had been made at the time.  There is an obvious distinction between the circumstances of the Moringiello case and what happens in Employment Tribunals.  Whilst we would hope and expect that a professional advocate would raise the matter then and there, this expectation is not to be regarded as a pre-condition to making an appeal here on that ground.  That said, when judging whether there has been an appearance of bias or impropriety, whether or not a contemporaneous complaint was made will be relevant.  In this case, we were told that the Applicant was represented by a person who was a pupil in Chambers doing one of her first cases.  It seems to us somewhat unrealistic to expect her to raise the issue before the Chairman who was part of the fact finding industrial jury.”

So we take no point against Mr Stansbury that the matter was not raised below at the time. That is the effective burden of his first argument before us.  

28	Mr. Stansbury then dealt with a series of propositions which he puts under the headings of arguments.  He spent some time, perfectly reasonably and appropriately, going through the facts and  carefully set out all the allegations that he makes and the answers to them.  We were able during the course of discussion to clarify a number of points about what was being alleged.  As far as the allegation about snoring was concerned, what Mr Stansbury recalled was that the snoring in question was not a continuous noise lasting over several minutes or even seconds, which would have been obvious to everyone in Court. What he alleged happened was as follows. The Chairman,  recognising that Mr Eynon was asleep, raised his voice in order to bring Mr Eynon back into consciousness.  Mr Eynon then uttered what one might describe properly as a snort, as he woke up.  

29	The fact remains, of course, that this was not observed by anyone else, although Mr Stansbury legitimately pointed out to us that in such a situation as this, where either allegations of drinking or being asleep were concerned, the Court ought to operate a zero tolerance policy, and neither alcohol nor falling asleep would be in any sense permissible.  

30	Mr Stansbury also pointed out with some force that the Chairman himself identified alcohol on the breath of Mr Eynon, and there is a considerable body of evidence which would demonstrate that at some point Mr Eynon had, indeed, consumed alcohol.  Furthermore, in his argument three, Mr Stansbury points out, again with some force, that the answers given by Mr Eynon, which of course we have read, are not particularly forthcoming. He disputes the allegation of having consumed alcohol, but does not deny that he had had alcohol. Mr Stansbury also points to the acknowledgment that: “I may on occasion close my eyes to concentrate” is most unfortunate and puts Mr Eynon on any view in danger of allegations being made against him. Mr. Stansbury argues that if a Tribunal member does not demonstrate his or her duty to be alert nor his or her level of concentration, sitting with one’s eyes closed could be associated with a person under the influence of alcohol.  

31	Mr. Stansbury then points, again we think with some force, to Mrs Kavanagh’s opinion and the fact that on two separate occasions she said in terms that the Tribunal member, or one of the Tribunal members was drunk. Although she could not confirm him being asleep, she of course confirmed smelling alcohol on his breath.  He also points to the fact that the Respondents’ witnesses speak with a suspiciously similar voice in the statements which they make, but at no time was it his claim that they had witnessed the drunken demeanour of Mr Eynon, although it was his claim that Ms Thomson and possibly Mr Waddington and Amber Clayton may have witnessed Mr Eynon making the derogatory comment to Mrs Kavanagh before lunch on the second day.  

32	As we indicated, we think that Mr Stansbury has presented his case with moderation and with care.  The question is whether the hearing was vitiated by the conduct of the particular member.  Mr Stansbury says that the Tribunal, in allowing a drunken member to participate and also a member who fell asleep, failed in its duty of care and failed to take appropriate action in the interests of justice. Whilst he did not wish to find fault or criticise, he took the view, and asked us to find that the conduct of the hearing had not been fair, and not in the interests of justice.  

33	That, therefore, is the case which we have to analyse.  We are looking at this, as we indicated earlier in Article 6 terms. No one would condone any form of inappropriate unjudicial behaviour.  We have to look to see whether the behaviour alleged here is sufficient to have made the hearing unfair.  

34.	The first point, we think, that does need to be made is that this was not only a unanimous Decision of the Tribunal but it was a Reserved Decision. There was a third day (27 July 2001) on which the Tribunal met to discuss the matter.  

35	Secondly, there is no criticism of the Chairman,  or of the Tribunal’s findings of fact or of its ruling on the law.  We appreciate, of course, that Mr Stansbury does not agree with the Decision of the Tribunal and sought to appeal it, but the Reserved Judgment was upheld by this Tribunal at the preliminary hearing and the careful judgment of Judge Burke QC makes it clear that no fault could be found as a matter of law with any of the conclusions reached. We think that is important, and it also is a distinction between this case and the case of Kudrath. In Kudrath not only did the Chairman fall asleep; but that was not the only  basis upon which the EAT allowed the appeal.  The EAT allowed the appeal because the Employment Tribunal had got material facts badly wrong.  That may have been, they speculated, because the Chairman was not paying attention and had fallen asleep, but nonetheless, that appeal was allowed because the judgment was defective. That is not the position in this case.  In this case the appeal has been dismissed, apart from this one point, and the grounds of appeal  have not been upheld.  

36	In these circumstances we have to ask ourselves whether, in the interests of justice, this case needs to be sent back for a re-hearing because the hearing before the Tribunal was not Article 6 compliant. Having discussed the matter, we have come to the view that this is not a case in which Article 6 has been so seriously breached as to require the matter to be reheard.  We are not, of course, judges of fact.  We do not know and cannot know exactly what happened in the Tribunal. It is not our function to resolve any differences in the views expressed, at different times, by Mrs Kavanagh or what Mrs Kavanagh said at different times to Mr. Stansbury.  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. Assuming for present purposes that  either or both of those two allegations are established, not only would that be unsatisfactory, but they would  constitute grounds for complaint under Article 6.  

37	Ultimately, we have to look, we think, at all the facts in the round. We look at the Decision of the Tribunal, with its careful reasoning. We look at the fact that the substantive decision of the Tribunal has been upheld by this Tribunal. Even if we assume,  for this purpose, in Mr. Stansbury’s favour that  Mr. Eynon may have fallen asleep and did  consume alcohol, that is 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 the case to be reheard..  We distinguish this case from Kudrath; 

38	We have some sympathy for Mr Stansbury,  but on the facts of this case we are quite satisfied that the Article 6 argument does not succeed, and, therefore, it follows that the appeal will have to be dismissed.