Mr Stansbury was a project manager with a company called Datapulse. He found himself turfed out of that job – he said unfairly. So he began an action for unfair dismissal. Ordinary.
A lawyer-chairman and what is known as two wingmen usually hear these cases. The wingmen are two non-lawyers who are supposed to bring some common sense to bear on the lawyer.
Day one was in May; day two in July. The first complaint was about one of the wingmen falling asleep – on both days. The second was the strong smell of booze. The third was "muttering" by this fellow; his mutterings were "expressions of disapproval" for the tribunal chairman. "Don't just ask me about all this," said Mr Stansbury, "ask my barrister – she was there, too." Mr Stansbury wanted a retrial.
Appeal proceedings were begun. A judge ordered that the tribunal chair and the two wingmen file a statement about the allegations. He ordered the two barristers to report as well. The tribunal chairman, Mr Ross, said he was not aware that either of his two wingmen had fallen asleep. In any case, nobody had complained. As to alcohol – yes, he had caught a whiff on the breath of his colleague, but he had no reason to think that this impaired his ability to participate. And, again, nobody complained.
As to the wingmen, one said he had never in his life on the bench had a wink of sleep. As to alcohol, he never touched the stuff. And if there were mutterings about the chairman, they had not emanated from his lips. That left the other wingman, a Mr Eynon. He said he frequently closed his eyes; it helped him to think. Mutterings about the chairman, if any, were not about the case; rather they were about the way the chairman was treating him. As to alcohol, why, he personally could not smell any.
Then there were the reports by the two barristers. One thought that Mr Eynon might merely have given the impression of being drunk. He shuffled a lot, pulled a face or two, made odd comments. Perhaps, she said, the fellow was a little eccentric. But, yes, she had caught a slight smell of alcohol. The other barrister couldn't recollect anything untoward.
Mr Eynon might merely have given the impression of being drunk. He shuffled, pulled faces, made odd comments. Perhaps he was eccentric …
Mr Stansbury's barrister had forgotten the email she sent shortly after the hearing, in which she wrote that one of the tribunal members was plainly drunk and not following proceedings.
The Court of Appeal had to decide whether to set the first decision aside on the grounds that its performance was in breach of the European Convention on Human Rights, which says everybody is entitled to a fair hearing.
The first key point is that a barrister represented Mr Stansbury. And it is a counsel's duty to bring untoward incidents to the judge's attention.
There was ample evidence that the wingman had consumed alcohol, and there was evidence that the chairman had raised his voice in order to bring his colleague back to consciousness.
So what was to be done? The court investigated what prejudice Mr Stansbury had suffered. There has been many a case in which a key player has not quite been on top form, but so what? Was Mr Stansbury on a loser anyway? The Appeal Court thought yes. The substantive decision of the tribunal first time around was, despite the surrounding circumstances, a sound result, and the wingman's behaviour was not sufficient to say the hearing was unfair nor that it was in the interests of justice that it be heard.
Tony Bingham is a barrister and arbitrator.