This is exactly the question the EAT considered recently in Elys and Marks and Spencer plc.

The Claimant, Mrs Elys (who had lost her case in the Tribunal) appealed the Tribunal decision on the ground of procedural irregularity, stating that one of the Tribunal members had not paid sufficient attention as he had appeared to be asleep during the three week hearing. There had been one particular incident which lasted 15-20 seconds, where the Tribunal member was actually seen “drooling” and needed to be nudged awake by the judge.

This EAT judgement looked into procedural irregularity in depth, and surprisingly there is very little case law on the topic. Judge Langstaff at the EAT likened the test for procedural irregularity to that of bias, and therefore asked whether a fair-minded, well-informed observer would determine that there was inattention, or the appearance of inattention. He concluded that in this case, they would not, and dismissed the appeal.

Judge Langstaff relied on the notes the Tribunal member had made, the relevant questions he asked of the witnesses and the medical evidence provided, which showed that he suffered from “dry eye” syndrome where he needed to close his eyes regularly to keep his eyes from drying out.  Judge Langstaff also held that the 15-20 second drooling incident could be explained by the Tribunal member having accidentally taken the wrong medication and regardless, a period of 15-20 seconds would not be sufficient to amount to a procedural irregularity.

Judge Langstaff also decided that the EAT, as a rare exception, can assess the evidence and make primary findings of fact in cases of procedural irregularity. This case is likely to become a leading judgement on this point, due to the scarcity of such cases.  Judge Langstaff made concluding observations for future Tribunals and stated that if a Tribunal member thought  they may be subject to inattention for extraneous reasons, e.g. pain, medication (as in this case) or because of particular events in their personal life, they should make that plain to the Tribunal and the parties should be informed. Judge Langstaff makes the very necessary point that an over alarmist approach should not be taken in this regard, however, it seems likely that if the parties of a case are informed that one of the Tribunal members may appear inattentive for an extraneous reason, the number of adjournment applications and appeals on precisely this point may well increase.