Do you ever feel that you do not have your audience’s undivided attention?  Perhaps it is the body language which gives it away, the distracted glances at the clock, a stifled yawn or the not quite sufficiently surreptitious cleaning of the finger nails.  But surely no one has a right to the exclusive focus of the person they are talking to, regardless of the dreariness, irrelevance, inaccuracy or sheer interminable length of what they are saying?   

Yes and no, said the UK’s Employment Appeal Tribunal recently.  It was considering the appeal of a Mrs Elys against an Employment Tribunal decision in her claim against Marks & Spencer.  The grounds for her appeal were that one of the Tribunal panel members had been asleep through parts of the evidence and/or staring out of the window with his back to her.  While the member had continued to hold his pen, said Mrs Elys, it had stopped moving, and so had he.  Was this a material procedural irregularity such as to amount to grounds for requiring the case to be reheard?   

Much of the EAT’s reasoning dealt with the technical issue of whether a Tribunal could be allowed to form a binding view as to the materiality of its own failings (no), plus the very fact-specific medical issue of why the panel member might have been or appeared to be asleep.  He suffered from an eye complaint which led him to close his eyes for comfort from time to time but without his concentration actually wavering, said the EAT, and this explained most of the periods of apparent inattention.  Looked at afterwards, the member’s notes were reasonably comprehensive and continuous, so Mrs Elys’ views on the movement of his pen were clearly mistaken.  In any case (though the EAT did not say this), most Tribunal advocates recognise a pause in note-taking by the panel as evidence that they have strayed into areas in which it is just not interested, and will take that as a tip to move on.  The EAT also found that the member had moved his chair towards the window to escape the air conditioning, not to blank Mrs Elys.   

However, there was a brief period when the wing-member was indeed genuinely incapacitated during the hearing as a result of mixing up his pills for certain other medical conditions he suffered.  He began to drool and had to be nudged back to alertness by the Employment Judge.  While clearly more than a little off-putting for Mrs Elys, who was in full flow at the time, was this a material procedural irregularity?   

Mrs Elys argued that any inattention by the Tribunal, almost however momentary, was a material defect.  Justice must not only be done but be seen to be done, etc.  Up to a point the EAT agreed – a litigant is entitled to the full attention of the Court all the time, it said, with a degree of concentration at least as great as that required while driving.  There was discussion as to the possibility that like “many a schoolchild and perhaps a number of junior counsel” (M&S was using a QC) the member “had learned over the years the knee-jerk reaction of appearing to turn to the correct page though having a snooze”.  It was also made clear by the EAT that a professional representative, seeing signs that an ET member may now be with them only in body, should “drop a book, make a noise [like what? – the mind boggles] or do something to cause the member to waken”.   

However, when the other eye-closing incidents and the seeming back-turning were taken out of account, the actual inattention was a matter of some twenty seconds at most.  This was in the context of Mrs Elys’ cross-examination of nineteen witnesses over three weeks (though the member very sensibly did not argue this as mitigation).  In the circumstances, although the incident was regrettable, it was mercifully not regarded as material.