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Head of legal nets fresh employment hearing after tribunal member found to be asleep

A council head of legal secured a fresh Employment Tribunal hearing because a member of the original tribunal was asleep for part of the proceedings, it has emerged.

Amardip Healy was head of legal services and deputy monitoring officer at Slough Borough Council, against which she made claims including for constructive dismissal.

She is now chief legal officer at Epsom & Ewell Borough Council.

Ms Healy was involved in disputes at Slough following which the original Employment Tribunal dismissed her claims of direct race discrimination, victimisation, detriment for having made a protected disclosure, and deduction from wages and found she had not been constructively dismissed.

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Her case then went to the Employment Appeal Tribunal (EAT) where she argued that there had been a procedural irregularity at the tribunal because a Ms Brown, who was a member, was asleep - or appeared to be - more than momentarily at a number of points.

In Healy v Slough Borough Council (PRACTICE AND PROCEDURE - Bias, misconduct and procedural irregularity) [2019] UKEAT 0125_19_1110 (the ruling being published last week by the EAT and HMCTS) HHJ Auerbach said: “On the evidence presented to it, the EAT concluded on the balance of probabilities that this was, unfortunately, factually correct.

“Accordingly, the fair-minded informed observer would conclude that there was a real possibility that the fairness of the trial was affected.”

Ms Brown rebutted claims she had been asleep, She said: “I vigorously deny that I was asleep at any and all times/days as alleged.

“Had there been any suspicion whatsoever that I was asleep, thus flawing the proceedings, the parties' legal representatives would surely have reported this at the time and the proceedings would surely have been halted.”

Despite this the EAT concluded that her being asleep invalidated the tribunal’s decision and the case must be re-heard.

Even if Ms Brown had not been asleep the EAT said it would have overturned the earlier tribunal’s decision on constructive dismissal.

It said the tribunal erred in inferring that it was only Slough’s refusal to lift Ms Healy’s suspension and the disciplinary charges, and not also any of its earlier conduct, that influenced her decision to resign.

The tribunal had also been wrong to take into account that immediately upon resigning from Slough Ms Healy took another job elsewhere “without considering whether, even if the availability of another job had influenced her decision to resign, the conduct of [Slough] had still also played a part in that decision”.

Mark Smulian

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