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This article was published on October 10th, 2014
Elys v Marks & Spencer
It comes to something when you fall asleep at work.
For one employment tribunal lay member, this may have been the unfortunate reality when he was observed with his eyes closed at various points during a three-week hearing. He had been drooling and even received a nudge from the judge.
The claimant (who had lost) appealed the decision, arguing that the judgment should be overturned because a sleeping lay member is a material procedural irregularity.
The Employment Appeal Tribunal (EAT) held not. On the subject of sleep, the EAT said that the member had dry eyes, so closed them, and had been taking painkillers. But other than that, the member wasn’t guilty of inattention or of giving the appearance of inattention. He had asked questions, taken notes and taken a full part in the tribunal’s discussions. The 15 to 20 seconds he had spent ostensibly asleep was not enough to be a procedural irregularity.
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