If as an Employment Tribunal you are not satisfied by the evidence which the parties have put before you, are you entitled to go off and get some more of your own?
This rather unusual question was considered by the Employment Appeal Tribunal last month in East of England Ambulance Service NHS Trust –v- Sanders. Mrs Sanders was claiming to be statutorily disabled. The jointly appointed medical expert concluded that she was not and, though some level of depression was not disputed, Mrs Sanders herself gallantly but perversely resisted the Tribunal’s invitation to confirm that some years ago her doctor had diagnosed her as suffering from severe depression. A statement she prepared on the adverse impact the condition had on her activities dealt far more with what she saw as the cause than with the effect. Though her doctor had some years ago prescribed 80mg/day of anti-depressant Citalopram, she had taken so little of it that her stocks had lasted some two and a half years after the prescription ceased, and when she did finally run out, she had felt no worse in consequence. Not a promising picture on the disability question, one might have thought.
However, when it adjourned to consider its decision on that question the Employment Tribunal did some research of its own about Citalopram, consulting Wikipedia, www.drugs.com (that must have tested the firewall!) and (for reasons not clear from its ruling) the website of a South African electronic package inserts company. These led the Tribunal to the view that the 80mg which had been prescribed was in fact the maximum safe daily dose of Citalopram, which suggested that at the time of that prescription at least, Mrs Sanders’ depression had indeed been most severe. Largely on that basis (for there was clearly little else) the Tribunal then concluded that Mrs Sanders was disabled.
The grounds of appeal were numerous, but included in particular the contention that the Tribunal should not seek to bolster the evidence it has heard with the product of its own research.
Challenged on this by the EAT, the Tribunal sought to rely on Rule 41 of the ET Rules of Procedure. This expressly allows a Tribunal to seek to question the parties and their witnesses to “clarify the issues or elicit the evidence”. The EAT did not buy that – in fairly scorching terms it stressed that Rule 41 related to eliciting the evidence which the witness wished to give, not that which the Tribunal wished to hear. The Tribunal was entitled to understand the witness’s position, not to steer the proceedings one way or the other by asking potentially leading questions about “facts” it had discovered by itself which neither party had relied on. Here the Tribunal had just assumed the correctness of internet statements that 80mg was the maximum dose, and cracked on from there. The EAT sent the issue back to a new Tribunal to look at it again.
What if one of the Tribunal panel members had had medical training and so knew or believed without the vagaries of internet research that 80mg was a strong dose? Would such technical knowledge have to be ignored even if potentially relevant? The EAT took the view that if the panel were aware of something really relevant and determinative, its obligation was to seek the views of the parties on that matter, potentially granting an adjournment to allow them to obtain further evidence and prepare their representations in response.
However, the clear message was that this would be appropriate only in the rarest of cases – the EAT concluded pithily that “It remains that witness’s evidence. It is that witness’s case. It is not the Tribunal’s case. It is not the Tribunal’s evidence”.