1. Taking that approach, then, to the analysis of the facts, I turn to what the facts were. I have set out some of them already. But these further facts also appear to me to arise, and I take into account here what the Tribunal has said, as if they were commenting in accordance with the Practice Direction paragraph 13, upon the observations contained in the affidavit of the Claimant. That affidavit recorded that she did not raise the matter of Mr Lowndes' sleeping during the hearing either with the Tribunal or with the counsel for the Respondent. She explained that she did not do that because she would not feel comfortable doing so. That seems to me entirely acceptable, and I note that in the case of Kudrath Morison J for the Appeal Tribunal said this:

"...whilst it is clearly preferable that the advocates, representatives or parties themselves should complain, at the time, that the Tribunal does not appear to be fully alert, in the context of litigation in the Employment Tribunals we regard it as unrealistic to expect that that will always be sensible or practicable. In the Moringiello case [that was a criminal case] there was a criminal trial before a Judge and jury. The jury are the fact finders. Both parties were represented by counsel at the hearing. It would have been possible, without difficulty, to make an application to the Judge, in the absence of the jury, about the Judge going to sleep, without fear that umbrage would or might be taken and the facts found against the complainant. In the Employment Tribunal, in many cases, one of the parties will be unrepresented by a lawyer. It would, we think, be a denial of justice were the EAT to refuse to intervene where a Chairman appeared to fall asleep, or was guilty of any other misconduct, if no complaint had been made at the time. There is an obvious distinction between the circumstances of the Moringiello case and what happens in Employment Tribunals. Whilst we would hope and expect that a professional advocate would raise the matter then and there, this expectation is not to be regarded as a pre-condition to making an appeal here on that ground. That said, when judging whether there has been an appearance of bias or impropriety, whether or not a contemporaneous complaint was made will be relevant."

1. She said that Mr Lowndes appeared to be visibly asleep, unalert and unattentive at different periods and for different durations during the cross-examination of 13 witnesses over a three-week period. She thought the periods varied between five to ten minutes at any given time. She described what had happened on 23 May 2013 during the review hearing and noted in addition to the matters noted by the Tribunal itself that Ms Reindorf, counsel who had appeared for the Respondent below, said that she had observed the lay member with his eyes closed but always with a "pen in his hand". She commented that she thought the pen never moved. She noted that not only was the explanation given as set out above but also that she was physically shown by Mr Lowndes in the Tribunal room a packet of eye drop solution with the detail "Allergan Liquifilm 0.4 ml". There was no further particular of what had happened beyond the matters which were contained in the Tribunal decision itself. The further material, apart from the Tribunal's decision, to which I shall return, was material which the Claimant had sought to put before the Appeal Tribunal in respect of the effects or possible effects of the medication which Mr Lowndes had been taking. An application to advance this was rejected by the Registrar on paper. There was an appeal under Rule 20 from a decision of the Registrar. The Claimant wished to raise the matter and did so at the start of this hearing.

1. Taking the view I had by then decided to adopt to the facts, it seemed to me I should not shut out any material which would assist me in determining what the facts were. That included medical material. I approach the medical material bearing in mind that it derives plainly from the internet, though from sources which seem relatively reputable, and may not be a complete recitation of all the medical knowledge that there is in respect of a particular product. I also take into account that medical datasheets drawing attention to potential side effects almost always state a very large range of side-effects, very few of which would in any individual case actually be suffered. That may demonstrate the extent of biological variability in response to particular drugs, but it is an accepted fact.

1. So far as concerns tamsulosin hydrochloride, the material provided to me shows more than 1% of people taking it may suffer a feeling of dizziness, as a common side effect, observing "If you feel dizzy, sit or lie down until you feel better". There is no complaint other than that under the heading "Uncommon, rare, very rare" which might be relevant, as it seems to me, to the present case. But in a subsequent document, which does not come from the NHS Choices website but from the drugs.com ("Know more. Be Sure") website, a wider range of tamsulosin side effects are stated. Under the heading "Some side effects may occur that usually do not need medical attention" and under the heading "Incidence not known" in a list which looks to be about 30 or 40 items long, drowsiness is mentioned, as is trouble concentrating. Tramadol, by contrast, is shown to be an opioid in a class which is in one site labelled a "strong opioid", in which class also are methadone and morphine. It is a painkiller. In the NHS Choices website, it notes that the medicine could affect ability to drive or operate machinery.

1. Apart from that material, the other facts which appear from the material before me suggest that, first, that counsel for the Respondent thought that Mr Lowndes was not asleep even though his eyes were closed. These words were added:

"He did ask of the witnesses questions. Some of the questions might have appeared to the Claimant unrelated to the issues."

1. Miss Hamill, the other panel member, said that Mr Lowndes had asked questions of the witnesses and, in the Tribunal's discussions and decision-making, there was no indication at all that there were any gaps in his grasp or understanding of the details of the case. The Judge had noted from the fourth day of the hearing that Mr Lowndes would occasionally close his eyes but he "could not say that he was asleep". In a later paragraph he said there was just one occasion when he observed he appeared not to be attentive or alert. On that occasion he had nudged Mr Lowndes. Paragraph 34 noted that at that point thereafter he remained alert with his eyes opened. The Judge added:

"Having looked at Mr Lowndes' notes of the evidence, he had the relevant page numbers noted and the evidence given by the witnesses."

1. The essence of the complaint is that there has been inattention. I must ask, first, whether I find as a fact, on the balance of probabilities, that Mr Lowndes was paying proper attention. If and to the extent that he did not pay proper attention, then if on that occasion it was truly to be said as trivial, there would not, in my view, be a material procedural irregularity.

1. I approach the matter, secondly, by asking, though I may have concluded that there was no improper inattention, whether a properly informed and impartial observer would think there was a real danger there had been inattention. But I must bear in mind that, in analysing that, I am not simply asking whether, as one normally would, of a case of someone whose eyes were closed whether that alone gave rise to an appearance that they might be sleeping. Plainly closing eyes more than momentarily it does give rise to that possibility, but if one knows why the eyes are closed and the explanation is both sufficient to explain what has happened and properly does so, then the well-informed observer, who would know of the explanation as well as the observation, would conclude objectively that there was no improper inattention.

1. Miss Ely argues that a Tribunal is under a duty to conduct a proper examination of the submissions, arguments and evidence. I agree. She relies upon the definition of sleep, the appearance of sleep and the character of sleep, to make the point that sleep can be defined (she referred to Kudrath, Stansbury, Whitehart v Raymond Thompson Ltd [1984] EAT 910/83, Red Bank Manufacturing Co Ltd v Meadows [1991] UKEAT 125_90_1411 and Fordyce v Hammersmith and Fulham Conservative Association [2006] UKEAT/0390/05/1301 and KD (Inattentive Judges) Afghanistan [2010] UKUT 261 (IAC)): an acceptable definition of sleep is to have one's eyes closed for a sustained period. That, she submits, is all that is required for the appearance of sleep. The appearance of sleep, she submits, is as unacceptable as actually sleeping because Tribunal members are expected to demonstrate that they are alert and aware. The "sleep" need not be acknowledged or admitted by the sleeper to still be treated as "sleep" or lost alertness and attention. She notes that in Fordyce HHJ Reid QC observed that from common experience many a schoolchild and perhaps a number of junior counsel had learned over the years the kneejerk reaction of appearing to turn to the correct page in the bundle though having a snooze. The pen, she asserts, was not moving. The fact that Mr Lowndes did not slump, his head did not lull, he did not jerk himself awake and there is no observation to support him being asleep other than the fact of his eyes being closed, did not defeat a conclusion that he was asleep, for she asserts the pen did not move. She complains that the Judge, though on one occasion he witnessed the closed eyes and decided to nudge Mr Lowndes, did nothing about it at the hearing. Falling asleep for seconds, she contends, if not moments, is still too much in a Tribunal. She argues, therefore, that an event as short as the spasm was, effectively, sufficient: it had needed physical intervention to stop it.

1. In slightly different submissions, she concentrated not on the consequences of the observations but the potential effect of the medication which Mr Lowndes admitted taking. He had an unnamed major medical condition for which he took tramadol. If tramadol might make someone unfit to drive, then it would equally make that person unfit to sit as a member of the Tribunal, for the degree of concentration involved would be at least as great as that required for the act of driving. There had been no consideration in case-law of sleep induced by medication, since the focus (see Stansbury v Datapulse) seemed to be on actual sleep or alcohol-induced sleep. There was a significant risk (and it may well have been the case, as she puts it, given the medical datasheets in respect of tramadol and tamsulosin) that Mr Lowndes was in fact inattentive as a consequence of the effect of the drugs irrespective of whether his eyes were open or shut. Indeed, I might observe that it might be thought consistent with sleep that there was a possible cause of it indicated by the fact of the need for medication, which it must be presumed was taken for a reason. She argued that the questions which Mr Lowndes had asked of witnesses did not seem to her to be particularly relevant. It did not establish anything that he asked questions, for that might easily be done by someone who had for much of the evidence been paying little attention. It was sufficient to make the proceedings procedurally unfair that he, Mr Lowndes, should have been taking something that altered his state of mind. She observed that there was no obvious reason to her why Mr Lowndes should need to close his eyes. She too suffered from a form of dry eye syndrome, blepharitis. She had done so at the time of the Tribunal. But in her case she did not need to close her eyes to moisturize. She drew my attention to medical literature which suggested that, although certain environmental conditions could dry the eye, a form of treatment was to take the drops, and there was no suggestion that further action by closing of the eyes was needed to ensure that the eyes felt lubricated. In dealing with the tramadol data sheets, she observed that seeing, hearing or feeling things that were not there, the possibility of loss of memory, the possibility of convulsions all might be taken into account, as in the case of tamsulosin might be the incidence of somnolence in 0-4% of patients reporting nervous system side effects, though insomnia in 1-2%.

1. Nothing could be read from the failure of counsel for the Respondent to perform the duty suggested of counsel in Stansbury of raising the issue with the Judge because, it was gently suggested, the inference to be drawn was that the behaviour of Mr Lowndes was not unfavourable to the Respondent. She did not necessarily accept, although this may have been the force of, the suggestion made by the bench that the fact of sleeping, inattention, is neutral as between the parties unless there are other facts relating to it which may characterise it as being evidence of an irrational hostility to one party or the other.

1. For the Respondent, Mr Nicholls asserted that there was far more here than just the explanation which was given by Mr Lowndes. There was properly objective material which showed that his explanation should be accepted as indicating not only that he was not inattentive but that the well-informed observer, knowing of the explanation and accepting it, would also be of that view. There were no facts – other than closed eyes, which had been explained - which suggested inattention. The pen plainly moved, for Mr Lowndes took full notes.

1. I have come to these views on an assessment of the facts and, insofar as there are disputes in respect of the fact, I resolve them as follows.

1. First, I accept that Mr Lowndes had his eyes closed at various times throughout the three-week hearing on liability. Second, I accept that he made copious notes. He said so, and the Employment Judge, importantly, said so and said she had checked those notes. That is not consistent with him being regularly inattentive, although it does not exclude it altogether. Third, I note that he did have a dry eye syndrome. I accept that not least because he was able to produce the medication which he was taking for that specific condition. Accordingly, not only was the explanation a possible explanation for his eyes being closed but supported by his having medication. As to whether it was truly the reason for his eyes being closed, I do not accept that I can generalise from one person's medical condition to another. There will be elements of similarity. But, as I have already pointed out, biological variability is great. The way in which a particular condition affects a particular person may have much in common with others but it is still likely to be unique or close to it. I see no reason to think that Mr Lowndes did not feel, at any rate, that he should close his eyes from time to time to prevent them from drying out. He could have been asleep. However, I note the evidence of counsel that she noticed his eyes being closed and did not think that he was. If she had done, it would have been her duty to raise the matter or, as Mr Nicholls put it in his closing address, at least prompted some reaction from the lay member, for instance by dropping a book, making a noise, or doing something which caused the lay member to waken. None of that did she do.

1. The fact that he asked questions indicates to me the likelihood that he thought he had heard enough of the evidence to be able to ask questions which would not sound ridiculous. If asleep for large portions of the evidence, it would be difficult to think that he would have had the confidence to do so. As to the materiality of those questions, the Judge thought them relevant. The other lay member also thought them relevant. Miss Reindorf thought they might have been misunderstood by the Claimant when she concluded the opposite. I conclude that though it was possible that they were not relevant, the inference from this material is that probably they were, even though they might have seemed not to be to the Claimant, and the Claimant thought they were not appropriate. They may not have always seemed to be to the Claimant. She was not a qualified or experienced lawyer, a point which is emphasised, quite rightly, a number of times. The fact that he made notes (confirmed by the Judge) and participated fully without any gaps in his discussion of the case with the other members of the Tribunal (that is their feedback) suggests to me as well that he did not miss any relevant part of the evidence. This is, as it seems to me, largely inconsistent with his having been asleep or inattentive. It is improbable that he would have shown no other sign of sleep (slumping, for instance) throughout the hearing if indeed he had slept for as long as his eyes were said to be closed.

1. I balance against this the possibility that he was taking a strong painkiller which might have rendered him more likely to sleep and that on one occasion he certainly was inattentive, for reasons which might be explained by his taking tablets, but the same tablets, in effect, that he had been taking throughout the hearing. That gives rise to some supporting material for the Claimant's contention that he was indeed inattentive.

1. Taking all these factors into account, I have come to the conclusion on balance of probabilities that he was actually attending to the evidence. The closing of the eyes is explained. The taking of full notes and participation in questioning and discussion show he was not inattentive. Save for the "drooling" incident which has a separate explanation, there was no other sign of sleep or inattention.

1. The next question which I have posed for myself is whether the well-informed observer, within the test as I have set it out, would have thought there was a real risk, revealed by these facts, of inattention so as to render this hearing a hearing in which justice was not seen to be done as it should be. As to that, I shall add a number of comments at the end of this Judgment. But, taking into account the explanation given, which would have been known of by the well-informed observer, the objective material constituted by the notes, the fulness of those notes, the appropriateness of the questions, the fact that he asked questions, the fact that Miss Reindorf did not herself think that he was asleep, the fact that the Judge did not do so either though having a responsibility to ensure that the other members of the Tribunal were alert and attentive at all proper times (the fact that the Judge nudged Mr Lowndes on the one occasion he thought he was asleep suggested that, had he thought on any other occasion that he was, he would have done just that) the conclusion must be and is that any observer, knowing of the facts, would in this case decide that there was no improper risk that there had been inattention. The risks of that were relatively immaterial. I do not regard the incident of turning the chair, said to be in response to the overhead draught, as being of real significance.

1. I come now to the 15 to 20 seconds in which Mr Lowndes was undoubtedly inattentive. As to that, there is Miss Elys's submission that any momentary inattention means that there has not been a fair hearing. Mr Nicholls submits that it should not be seen here as any more than trivial. It was short-lived. That is the only evidence about it. Neither party referred to it at the time, nor it seems did they refer to it specifically in submissions at the review hearing. I do wonder if, in the Claimant's case, that might not be because she saw it as part and parcel of the other occasions when his eyes were closed. But that is only a speculation. I accept Mr Nicholls' point that there may be a whole host of conditions which might be suggested as giving rise to voluntary inattention: sneezing, a coughing fit, the occasional pang of sciatica, matters of that kind, which may affect many courts and Tribunals but cause no real inattention about which any litigant or any observer of the system of justice would have any proper cause to complain. There was nothing in the evidence about the 15 to 20 seconds that suggests a real concern. That is because, says Mr Nicholls, the Judge having described what had happened said that, after having been nudged, "thereafter he, Mr Lowndes, remained alert with his eyes open". The Judge was plainly therefore alert to the possibility that what he had observed might be a symptom of some more serious cause.

1. Though initially concerned about that incident and whether it might not have some interaction generally with the observed condition of the eyes being closed, I have in the end come to the conclusion that it was, as a 15-20 second incident, self-contained, arising probably on 20 February 2013 (the Claimant thinks it was the 21st, but this is not in her affidavit), and that it was regrettable but not of sufficient materiality to amount to a procedural irregularity which would vitiate the decision.

1. It follows that, taking the approach which I have done, I have concluded, first, as a matter of fact, on balance of probabilities, that Mr Lowndes did pay proper attention to the case and, second, that the well-informed observer, sitting as it were at the back of the court but having knowledge of the material facts, would not have thought there was a real risk this was not so. As a proposition of law I accept that where there are facts which suggest inattention but also an explanation for those facts, the explanation must be looked at critically: but if there is, at the end of that examination, a proper explanation which appears consistent with other facts and is supported by them, which can objectively be evaluated, then the appearance initially formed falls away and the true appearance then is that there has been a proper degree of attention.

1. Towards the end of her submissions, Miss Elys complained that this case concentrated upon that which was visible. What mattered was also the invisible effect of medication. For the guidance of Tribunals, I would say this: (1) that a party is entitled to an Employment Tribunal which is properly attentive. As Bingham LJ (as he then was) once said, a judge's job is to listen. The parties cannot be satisfied with the attention of some of the panel for some of a case. They are entitled to the attention of all of the panel for all of the case, trivial moments aside. It is not enough that one party can, after the event, brief another as to what has been missed. Justice must not only be done but must be seen to be done. Important in assuring the public and the parties that justice is being properly done, an employment judge and the members of a Tribunal have an important responsibility. Each has a responsibility for their own performance. If they have any reason to think that they might be subject to inattention for extraneous reasons (it may be pain, it may be medication, it may be because of particular events in their personal life which make it much more difficult to concentrate on the case in hand) they should make that plain to the Tribunal and, if necessary, the parties should be told enough about it to make an informed decision as to their position. But the essential responsibility is not that of the parties. It is that of the judge ensuring that she or he is reasonably fit to sit in a judicial capacity.

1. I understand, having made an enquiry in advance of this case of the President of Employment Tribunals, that there is an accepted process whereby a lay member of Tribunals or an employment judge should notify an Employment Tribunal if they suffer from a condition which might be capable of misinterpretation by litigants. Indeed, if a lay member knows of such a condition, she or he should raise it with the judge at the first instance. Because each member has an obligation to the integrity of the Tribunal as a whole, they should tell those they are sitting with. This applies in particular to occasions when people may expect to be seen to have their eyes closed for very good reason when litigants would expect the eyes to be open. I suspect that in this case, for instance, had it been said at the outset that Mr Lowndes might, as one supposes he knew, have to take some time from time to time closing his eyes because of his eye condition and that the parties were told this and assured that he was nonetheless being fully attentive, and they should not misinterpret it, there would never have been this appeal. This guidance cannot be prescriptive for every case. Proper regard must be had to the confidentiality of some conditions, and an over-alarmist approach must not be taken: but what is called for in most cases is the exercise of judgment which will prevent what might very well have happened here had there not been the ready explanation that there was, which could have been the loss of a substantial of days of court time, could have caused expense and trouble to both parties and could have done damage to the regard in which our system of justice is held, because the misunderstanding (as it, in my view, turned out to be) about whether or not a member was sleeping had been allowed to develop without the parties understanding the circumstances. I hope those observations will be of use in future cases.