MRS L FRANXHI v FOCUS MANAGEMENT CONSULTANTS LTD [2001] UKEAT 1164_99_0810

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1164_99_0810Case No Appeal No. EAT/1164/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS L FRANXHIAPPELLANTFOCUS MANAGEMENT CONSULTANTS LTDRESPONDENT
Before
Sir Christopher BellamyDate 8 October 2001
[1]APPEARANCES For the Appellant MR DAVID CRAIG (of Counsel) Messrs Cocks Employment Rights Unit Cheshire CAB 48 Chesterway Northwich CE9 5JA For the Respondent MS KIRSTEN BARRY (of Counsel) Messrs Sinclair Abson Smith 30 Greek Street Stockport SK3 8AD SIR CHRISTOPHER BELLAMY QC The Appellant, Lois Franxhi, appeals from the decision of the employment tribunal sitting at Liverpool sent to the parties on 29 July 1999. By that decision the employment tribunal decided, by a majority, to dismiss the Appellant's complaints of dismissal for an inadmissible reason, namely pregnancy, unfair dismissal and sex discrimination made against her former employer, Focus Management Consultants Ltd, who are the Respondents. However the employment tribunal unanimously decided to award the Appellant £1,306.54 for breach of contract. The factual background[2]The background to the dispute is that the Appellant worked for the Respondents, who are a small firm of management consultants, as personal assistant to Mr Jones, one of the Respondents' two Directors, from June 1996 to July 1998. In the early part of 1998, the Appellant told Mr Jones she was pregnant. In July 1998 Mr Jones had occasion to give the Appellant a final written warning in connection with her personal use of the Respondents' postage stamps without paying for them in the "honesty box" provided for that purpose. A minority of the tribunal found that that was an overreaction on the part of the Respondents.[3]Not long afterwards, Mr Jones discovered that the Appellant had been making use of the Respondents' internet facilities during working hours, for the purposes of arranging her holiday, over a period of several days. When tackled by Mr Jones the Appellant said that she had used the internet only once during her lunch break.[4]The Appellant was suspended on 23 July 1998. Mr Jones then held a disciplinary meeting. According to paragraph 4(i) of the tribunal's decision, "The Applicant said that as she had never been told not to make personal use of the telephone or internet, she did not accept that she had done anything wrong. When she was asked if she thought her extensive use of the internet was reasonable, she said the question was debatable." Shortly afterwards, she was summarily dismissed.[5]At paragraph 4(j) of its decision the employment tribunal said this:
"It was true that no-one had expressly told the applicant not to make personal use of the internet. But our majority did not think she was thereby excused. As a senior employee she must have known that the extensive private use of the internet was not allowed, any more than any other extensive private use of a company asset was. Even had there been any doubt about the question, she must have grasped the import of the letter of warning. After careful consideration, the decision was that she should be dismissed. The use of the internet was only part of the reason for her dismissal: the Respondents were influenced by her betrayal of their trust; she had lied to them when initially taxed with misconduct, and it came very soon after being warned against this category of behaviour (a warning that again reflected her bad example to junior staff). Such was the finding of our majority. A minority member found that here was another overreaction."
[6]Before the tribunal the applicant claimed that she had been dismissed by reason of her pregnancy.

(a) of the tribunal's decision, and is expressed in these terms:

"(i) The applicant certainly misconducted herself. The respondents warned her for using their stamps for her private mail and disregarding the instruction to pay while boasting to people junior to herself that free postage was a perk of her job. Her use of the Internet was more than the occasional fleeting one that might conceivably have been regarded as open to everyone. She used it wholesale and spent a long time on it. She must have known that such use was not acceptable to the employer. She tried to mislead them when they first asked what she had done, saying she had only used the Internet once during her lunch hour. Thus the respondents had sufficient reason to take strong disciplinary action: dismissal was reasonably among the options. (ii) We thought it unlikely that the respondents were influenced by the applicant's pregnancy. She was an important member of their small team who would be difficult permanently to replace. Her summary dismissal put them in a worse difficulty than they need have faced. Even had they disliked the fact that she was pregnant, they had more reason to retain her than quickly to get rid of her. Moreover, Mr Jones' personal experience had given him strong feelings about the injustice of dismissing a woman on the ground of her pregnancy. (iii) The applicant's dismissal for misconduct was reasonably justified. The respondents were not influenced by her pregnancy. Therefore the reason for her dismissal was her misconduct. The respondents neither dismissed her for an inadmissible reason nor discriminated her on the ground of her sex."
[7]According to the minority decision (at paragraph 5(b)):
"Pregnancy was the reason for the applicant's dismissal. The change of attitude towards her came when she told Mr Jones that she was expecting a baby, not (as the majority held) when she misbehaved over the stamps."
[8]As regards the question whether the Respondents acted reasonably in dismissing the appellant, the majority of the employment tribunal found as follows at paragraph 7 of the decision:
"(a) The respondents genuinely believed that the applicant had abused their internet facility. (b) The respondents had reasonable grounds for their belief; the printed record of the applicant's activity might not be denied. (c) The respondents carried out a reasonable investigation into their accusation: they convened a disciplinary hearing at which the applicant was heard to make what representations she wanted. This was a unanimous finding. (d) Dismissal was an option reasonably open to the respondents to impose. The respondents were entitled to believe that the applicant was being less than frank with them in her explanations and that she had set a poor example to her juniors. They had issued her with a final written warning. They were reasonably entitled to the view that the 2 incidents following closely the one on the other showed that they could no longer trust her. (e) Thus, the applicant was fairly dismissed."
[9]The minority member of the tribunal differed from the majority in the respects set out in paragraph 8 of the tribunal's decision:
"(a) The respondents did not genuinely that what the applicant did was misconduct, nor that it was particularly wrong for her to use stamps or the Internet for her own business. (b) Dismissal was not a penalty reasonably open to the respondents to impose. She was only doing what everyone else was doing. The respondents had never expressly told her not to use their facilities for her own purposes."
[10]On the issue of sex discrimination the majority decided as follows at paragraph 9 of the tribunal's decision:
"The respondents subjected the applicant to detriments: they gave her a final written warning and they dismissed her. She was pregnant. She had no need to identify a comparator. But, having heard the explanation offered by the respondents, we accepted it. We exercised all the caution called for by the reflection that there will rarely be direct evidence of sex discrimination, much less the confession of it. We reminded ourselves that we might need to make such inferences as the evidence justified. But we accepted what Mr Jones told us (backed up as he was by Miss Kenyon and the various records of what the applicant had said and done). His explanation excluded sex discrimination as any kind of influence on his decision."
The minority member of the tribunal, having found that the Appellant was dismissed by reason of her pregnancy, also found for her on the issue of sex discrimination.[11]Finally, the tribunal found unanimously that the respondents were not entitled to dismiss the appellant summarily. They therefore awarded the appellant £1,306.34, representing one month's net pay, in respect of the breach by the respondents of their contractual obligation to give the appellant one month's notice under her contract of employment.[12]On this appeal, the Appellant's principal contention is that there was a procedural failure before the employment tribunal in that the Chairman curtailed the cross-examination of the Respondents being conducted on behalf of the Appellant. It is convenient to deal with that issue ("the cross-examination issue") before dealing with the other matters raised by the Appellant. The cross-examination issue — Submissions of the parties[13]The Appellant submits that her right to a fair procedure before the tribunal was infringed because the Chairman imposed a limitation on the cross-examination of Mr Jones, the principal witness for the Respondents, which was being conducted on her behalf by Mr Mark Bainbridge of the Employment Rights Unit of Cheshire Citizens Advice Bureau.[14]According to the Appellant, what happened was that during Mr Bainbridge's cross-examination of Mr Jones, the Chairman of the tribunal interrupted Mr Bainbridge and announced that he had 15 minutes (and only 15 minutes) to complete his cross-examination. There had been no prior warning that cross-examination would be limited in time. Mr Bainbridge then informed the Chairman that 15 minutes was not a sufficient period of time to enable him properly to put the appellant's case, particularly since the parties were in substantial dispute in relation to the facts. The Chairman informed Mr Bainbridge that he could either spend the 15 minutes allocated disputing the Chairman's direction, or use the 15 minutes to pursue his cross-examination. At the expiry of the 15-minute period the Chairman directed that Mr Bainbridge could ask one more question if he wished. Mr Bainbridge advised the tribunal that he had approximately 20 more questions to ask Mr Jones. The Chairman of the tribunal then stated that he should have put these questions within the 15 minutes allowed, and stopped Mr Bainbridge's cross-examination.[15]On the basis of those factual allegations the appellant submits that Mr Bainbridge was not able properly to put the appellant's case to the respondent. It is said, in particular, that Mr Bainbridge was not able to put to Mr Jones in cross-examination the following matters set out in paragraph 6 of the Notice of Appeal:
"i) The Respondent's assertion that the Appellant had lied when confronted by Mr Jones as to the extent of her Internet usage. The Respondent asserted that when confronted about her Internet usage the Appellant had stated that she had only used the Internet for personal searches one lunch time. The Appellant's case was that she had said that she could only remember using it a lot one lunch time. This matter was central to the Respondent's case and to the finding of the majority of the Tribunal that the Respondent believed that the Appellant had been dishonest as to the extent of her Internet usage; ii) the Appellant's assertion that she was subject to unlawful sex discrimination and/or unfair dismissal in that she was treated less favourably than and/or inconsistently with a male employee who was suspected to have used the Internet for personal use and was not dismissed or subject to any disciplinary action by the Respondent; iii) the Appellant's assertion that in dismissing her the Respondent had treated her inconsistently with other employees who used the Internet for personal searches, including Rachel Hoskins and Melanie Buckley, and who were not disciplined by the Respondent; iv) the Appellant's assertion that Mr Jones' attitude to the Appellant had changed markedly and significantly after the Appellant had informed him that she was pregnant including, but not limited to, the Appellant's averral that following the said announcement, the Respondent: a) failed to hold a meeting to discuss the Appellant's promotion and new role, the Respondent having informed the Appellant that such a meeting would take place after the Appellant and Mr Jones had returned from their respective holidays; b) failed to invite the Appellant to a staff meeting held in Bournemouth; and c) failed to include the Appellant in the production of the office manual; v) the reason for the Respondent's refusal to provide the Appellant with a reference after the termination of her employment (the Appellant having been given leave to amend her Originating Application to plead victimisation in relation to the said refusal)."
[16]The Appellant further submits that Rule 9 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 1993 does not empower an employment tribunal to limit cross-examination purely as to time, as distinct from enabling the tribunal to exclude cross-examination that is irrelevant, repetitious or otherwise to prevent an abuse of the process. In particular, the tribunal does not have power to direct that cross-examination must be limited to a particular period of time without consideration of the relevance and appropriateness of the cross-examination. Rule 9 does not permit the tribunal to make a direction that by its very nature would be arbitrary. The Appellant relies notably on Bushell v the Secretary of State for the Environment [1981] AC 75 , and a dictum of Lord Edmund Davies to the effect that "There is no discretion on the civil side to exclude cross-examination on relevant matters."[17]Alternatively, argues the Appellant, if there is a discretion to limit the time allowed for cross-examination in all cases, that power is not unfettered and must be limited to no more than is necessary in the interests of justice and the proper and efficient use of Court time. In particular, by analogy with the overriding objective set out in the Civil Procedure Rules, the tribunal should allow sufficient time for cross-examination to enable the issues in the case reasonably to be explored and the relevant matters to be put to a witness: the discretion to limit the time allotted for cross-examination, if it exists, should only be exercised when the tribunal is aware of the issues to be determined in the case. A tribunal should not stop a cross-examination without inquiring of the advocate what further matters the advocate wishes to put in cross examination, and how much further time he might require. If a time limit is to be imposed, advance warning should be given to the advocate, so that he can properly tailor his cross-examination to the time allowed: this will normally require informing the advocate of the allotted time before he commences. If the initial time limit is exhausted, but there still remain relevant matters to be put to a witness, the tribunal should then exercise its discretion again as to whether further time should be allowed, taking into account why the time initially allowed proved to be insufficient. It should only be exceptionally that the tribunal should refuse an extension of the time allowed for cross-examination if to do so would prevent an advocate from putting relevant questions to a witness.[18]In the present case, submits the Appellant, the tribunal wrongly exercised its discretion. It did not balance, on the one hand, the use of the tribunal's time as against the need for the appellant's case properly to be put and for relevant matters to be explored. Time allowed for cross-examination was limited arbitrarily, without warning and without any enquiry as to the relevance of the matters still to be put. The time limit was imposed in the face of Mr Bainbridge's protestations that he was being disabled from properly putting his client's case, or testing the evidence of the respondent contrary to the principles of natural justice, principles which have become even more important following the Human Rights Act 1998.[19]The Respondents submit that the employment tribunal has the power to limit cross-examination under Regulation 9 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 1993, see Zurich Insurance Co v Gulson [1998] IRLR 118. Cross-examination was properly limited in this case. Mr Bainbridge commenced at around 11 o'clock, was told at 12.15 that he should complete his cross-examination in the next 15 minutes. It would appear that in fact a further 25 minutes was allowed. A total of 1 hour and 40 minutes of cross-examination was ample time for a relatively straightforward case such as the present. Even after the Chairman's warning at 12.15 pm, the remaining 25 minutes should have allowed Mr Bainbridge ample time. The Chairman did not prevent Mr Bainbridge from putting to Mr Jones the matters identified by Mr Bainbridge: it was Mr Bainbridge's responsibility to identify and prioritise the matters that he considers should have been put, rather than, as in this case, following a prepared script. Mr Bainbridge has not produced the list of questions that he alleges he was going to put, and it was up to him to tell the tribunal what further areas of cross-examination he needed to pursue. Although the tribunal may have had a discretion to explore that matter with Mr Bainbridge (see Mensah v The East Hertfordshire NHS Trust [1998] IRLR 531 , paragraph 28 Gibson LJ) the tribunal was not obliged to do so. — The evidence on the cross-examination issue[20]The Appellant supports her contentions by an undated first affidavit sworn by Mr Bainbridge, received by this Appeal Tribunal on 13 November 1999. Mr Bainbridge states that he is a practising solicitor, that Mr Jones gave evidence and that Mr Bainbridge then commenced his cross-examination. He goes on at paragraph 10 of his first affidavit:
"When I had been cross-examining [Mr Jones] for approximately 1¼ hours I was interrupted by the Chairman and directed I had 15 minutes to conclude my cross-examination. At no point prior to this was I warned that my cross-examination would be limited in this way. The Chairman's complaint was that I had had a reasonable amount of time to cross-examine the respondents' witnesses. I advised the tribunal that 15 minutes was not a sufficient period of time to enable me properly to put the appellant's case to Mr Jones given that the parties were in substantial dispute. The Chairman warned me that I could either spend the remaining 15 minutes pursuing my cross-examination of the respondents' witness or I could alternatively spend that time disputing his direction."
[21]Mr Bainbridge continues as follows at paragraphs 11 to 13 of his first affidavit:
"11. At the time of the said interruption, I had not put the Appellant's case at all in respect of her personal usage of the internet and the subsequent disciplinary action which resulted in her dismissal. I moved to deal with these issues and I identified the areas that I wanted to deal with in cross-examination, namely: a) that it was a misuse of her time, the company phone and the internet facilities b) that it was clear that because she had been using the internet that the Appellant had not been undertaking the projects which she was employed for and which she had been given as major priorities c) that the internet was deliberately used when the Respondent's witness was out of the office d) that it was an unacceptable management example e) that the Appellant offered no explanation for her behaviour f) that the Appellant lied to Mr Jones by saying that she had been using the internet one lunch time g) that other employees of the Respondent had previously used the internet for personal use and had not been disciplined and certainly had not been dismissed for such usage. 12. It became increasingly difficult to put the Appellant's case to the Respondent's witness because, conscious of the time limitation, questions had to be put rapidly and I was unable to deal properly with the witness' responses. For example, although I was able to put to Mr Jones that other employees had been using the internet for their personal use I was unable properly to challenge his assertion that he was unaware that any other employee had ever used the internet for their personal use. Furthermore, Mr Jones was noticeably more difficult to cross-examine following the time limitation warning and avoided proper responses to direct questions. For example, when asked a direct question as to whether he thought that the Appellant had been dishonest when she had used company stamps Mr Jones debated at length the meaning of the word 'dishonest'. 13. After the expiry of 15 minutes, at 12.35pm, the Chairman directed that I could ask one more question if I wished. I advised the tribunal that I had approximately 20 more questions to ask Mr Jones and that I regarded it as my professional duty to put the Appellant's case properly to the Respondent. I was told by the Chairman that I should have put these questions in the time that had been made available. The Chairman did not make any enquiry of the nature or the relevance of my remaining lines of cross-examination. The Chairman did not, at any stage, enquire as to my estimate of the amount of time required to complete my cross-examination of the Respondent's witness."
[22]At paragraph 15 of his first affidavit Mr Bainbridge says this:
"15. When the Chairman directed that I should conclude my cross-examination it precluded me from dealing with the following matters: a) The Respondent's assertion that the Appellant had lied when confronted by Mr Jones as to the extent of her internet usage. The Respondent asserted that when confronted about her internet usage, the Appellant had stated that she had only used it one lunch time. The Appellant's case was that when she was confronted she said that she could only remember using it a lot one lunch time. I had indicated to the tribunal that this was a matter that I had intended to put to the Respondent's witness but I was unable to deal with this point in the 15 minutes finally allocated to me for remaining cross-examination. This matter was central to the Respondent's case and to the finding of the Tribunal that the Respondent believed that the Appellant had been dishonest as to the extent of her internet usage. b) The Appellant's assertion that she was subject to unlawful sex discrimination and/or unfair dismissal in that she was treated less favourably than and/or inconsistently with a male employee who was suspected to have used the internet for personal use and was not dismissed or subject to any disciplinary action by the Respondent. This matter was identified as a separate complaint by the Appellant in her Originating Application and Sex Discrimination Act Questionnaire. I was not given an opportunity to put prepared lines of cross-examination as to the Appellant's comparative treatment to the Respondent. c) The Appellant's assertion that Mr Jones' attitude towards her changed markedly and significantly after the Appellant had informed him that she was pregnant including, but not limited to, the Appellant's averral that following the said announcement, the Respondent: i) failed to hold a meeting to discuss the Appellant's promotion and new role, the Respondent having informed the Appellant that such a meeting would take place after the Appellant and Mr Jones had returned from their respective holidays; and ii) failed to invite the Appellant to a staff meeting held in Bournemouth; and iii) failed to include the Appellant in the production of the office manual when the Appellant was the office manager These matters were to be relied upon particularly in contending that the tribunal was entitled to properly infer from the facts that the real reason for the Appellant's dismissal was her pregnancy d) the reason for the Respondent's refusal to provide the Appellant with a reference after the termination of her employment."
[23]Finally at paragraph 17 of that affidavit Mr Bainbridge says this:
"This case was listed before the Tribunal with a time estimate of 1 day. The parties' representatives concluded their closing submissions around 3 pm. At that stage, the Chairman indicated that he thought they would be able to inform the parties of their decision with ½ hour. If I had been allowed to complete my cross-examination, I believe that I could have properly done so within a further 15 – 30 minute time period. In that event, the Respondent would have concluded his evidence before lunch and the Appellant would have accordingly finished giving her evidence and the parties Representatives, their closing submissions, by mid-afternoon. If, however, I am wrong in my estimation and, in fact, the Tribunal would have had to sit beyond 4pm or the case would have had to go part heard, I can assure the employment Appeal Tribunal that this was not deliberate."
[24]The Chairman of the tribunal has commented on Mr Bainbridge's affidavit in a letter to this Appeal Tribunal dated 21 January 2000. The Chairman says this:
"In paragraph 5 of his affidavit Mr Bainbridge says that "
This was a very involved case". It was not. It centred on a few incidents. It was a case for a day. He clearly came to the hearing regarding it as involved, and the way he conducted his case made it sound more involved than it need have. The hearing started at 10.20. The first witness, Mr Stephen Jones for the respondents, took a little over half an hour to read his statement and the questions in amplification. His finished his evidence-in-chief at about 11 o'clock. Then Mr Bainbridge stated cross-examining. He appeared to have written many of his questions out and to be determined to ask each one without modification. He was very tedious. He could have put the issues and explored them much more succinctly than he did. Question after question served no more purpose than to occupy time, without assisting us in our task. At 12.15, I asked Mr Bainbridge he had many more questions to ask this witness. He gave me a figure. I forget what it was, but his answer alarmed me. I told him, politely, that he should finish his cross-examination by 12.30. He was disposed to conduct a full argument on the question, but that would only have wasted more time. I said to him, without acerbity, that he would be better occupied in asking the witness whatever questions might remain to be asked. At 12.37, I told him that the cross-examination was over. He had then been asking questions for about an hour and three-quarters. I did not at the beginning set a timetable for questions because I did not know that it would be necessary. I do not remember what intervention I made during the cross-examination, in particular whether I remonstrated with Mr Bainbridge. Only rarely, I believe, do I betray impatience with an advocate. I quite often suggest courteously (I believe) that a particular question or line of questioning need not be persisted in. Indeed, that is my practice when questioning is going on too long. Normally the response is acceptance by an experienced advocate. I am sure that I followed my practice with Mr Bainbridge. I cannot think why I should have departed from it in his case. It was certainly clear that he was taking too long over his cross-examination. Then, and until 1.20, we heard the applicant's evidence. She read a statement. When she had finished, we had a short adjournment and resumed at about 2 o'clock. Her cross-examination was over before 2.45, when the advocates made their closing addresses. Judging by my notes, Mr Bainbridge's was twice as long as his opponent's. It was after 3 o'clock when the closing addresses were finished. I do not remember, and I did not make a note, when they did, but my notes show that they started at 2.45. We retired to consider our decision, and the hearing finally closed at 5.05, later than usual. If Mr Bainbridge thought that his cross-examination would take up to two and a half hours, he was unrealistic to think that the case would be over in a day. In fact, had I not curtailed his cross-examination, the case would have spilled over into another day. When I did so, it was after he had been given much freedom to ask questions. I cannot think what further questions might have improved his client's case. He was given a reasonable opportunity to cross-examine. If there is more that you think the employment Appeal Tribunal might need to know, please tell me."[25]In response to the Chairman's comments, Mr Bainbridge has sworn a second affidavit dated 28 April 2000. He states in that affidavit that at the time of the hearing he had around 18 months post-qualification experience working exclusively on employment law cases, most of which involved discrimination claims. He says he believes that the further questions that he wished to put when he was stopped by the Chairman were relevant and important. However, according to Mr Bainbridge, the Chairman gave him no opportunity to inform the tribunal of what further questions he wished to ask or the purpose of these questions. He thus denies that the Chairman followed what he described in his letter of 21 January 2000 as his "normal practice". He also points out that the Chairman made no comment on the length of his closing speech, and that when it retired to consider its verdict the tribunal took around 1½ hours rather than 30 minutes as had been indicated. According to Mr Bainbridge, that was the reason why the tribunal sat until just after 5 o'clock.[26]Mr Bainbridge's evidence is supported by an affidavit sworn by the Appellant in the case, Mrs Franxhi, which is also undated. She alleges, in particular, that when Mr Bainbridge resumed his questioning of Mr Jones after the Chairman's intervention "Mr Jones appeared to avoid giving direct answers to Mr Bainbridge's questions" and that the Chairman's tone was "abrupt and impatient" with Mr Bainbridge. She does not agree with the Chairman's statements in his letter of 21 January 2000 that he dealt with Mr Bainbridge "politely" or "without acerbity".[27]There is also an affidavit dated 1 August 2000 from Mr John Cook who had the conduct of the case on behalf of the Respondents. According to Mr Cook, the case concerned two principal issues:(i) the use of the stamps by the Appellant for her personal use; and(ii) the Appellant's alleged use of the internet.[28]In paragraphs 2 to 7 of his affidavit Mr Cook states as follows:
"2. The hearing started at 10.20 am and the first witness was Stephen Jones for the Respondent. Mr Jones finished his evidence in chief at about 11am. I would dispute Paragraph 8 of the Affidavit of Mark Bainbridge which indicates that "evidence in chief which was amplified considerably ex tempore"
. This simply was not the case. Mr Stephen had read his 19 page Statement and answered the questions I had for him in approximately 40 minutes. 3. Mr Bainbridge began his cross examination of Mr Jones at approximately 11am. All of Mr Bainbridge's questions for Mr Jones were written out. Mr Bainbridge stuck to his script religiously. He did not appear to listen to the answers that were being given to him by Stephen Jones. Even when Stephen Jones accepted a particular point that was put to him there would be two or three follow up questions about the same item. In my view these were completely unnecessary. 4. I do recall that Mr Bainbridge was stopped by the Chairman of the Tribunal at approximately 12.15pm and advised that he should finish his cross examination in the next 15 minutes. The cross examination was actually concluded at about 12.40pm. 5. I do not recall that Mr Jones became evasive when a time limit was imposed upon Mr Bainbridge. I do recall that on a number of occasions Mr Jones told Mr Bainbridge that in his view he had already answered a particular question previously. 6. I would agree with the timings set out by the Chairman. 7. I can confirm that Mr Bainbridge had almost 1 hour 45 minutes to cross examine Mr Jones and this was ample time to deal with the matters raised."[29]In a further letter to this Appeal Tribunal dated 14 September 2000 the Chairman agrees with Mr Cook that Mr Jones did not become more evasive after Mr Bainbridge had been put on time.[30]Finally, the Chairman has produced his notes of evidence of the hearing. Those notes run to some 5 typed pages, of which just over 2½ pages refer to the Chairman's notes of Mr Jones's cross-examination by Mr Bainbridge. On the third page of the notes, after about 1½ pages of cross-examination is recorded, it is stated "At this point the Chairman imposed a time limit on the cross-examination". It appears from these notes that just before that point Mr Jones had been questioned about the Appellant's inappropriate use of stamps. After that point the notes cover about a page and state among other things:
"The applicant was dismissed for the breakdown of trust. The witness was referred to page 22 of the bundle The Internet was not used generally for personal use. The applicant had not used it beforehand. There was no personal use beforehand. I don't accept she told me how to use the information about Liverpool Football Club. When I am out of the office for 3 or 4 days, I come back to the office to find 150 searches done. I never found out about it before. Not to my knowledge. This was the only one I learnt about. I found out beforehand from the others. The misuse was done in front of them."
[31]After further questions, some of which apparently refer to the disciplinary hearing, the Chairman's notes state "12.37pm the Chairman stopped the cross-examination. Mr Bainbridge said he had 20 more questions to ask."[32]After Mr Jones's evidence, the Appellant herself gave evidence and was cross-examined and a written statement was put in from her husband Mr Franxhi. The close of the evidence was followed by submissions on behalf of the Appellant and the Respondents, and the Tribunal intimated its decision later in the afternoon after a retirement. — Analysis[33]Rule 9, set out in Schedule 1 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 1993 provides:
"9 Procedure at hearing (1) The tribunal shall, so far as it appears to it appropriate, seek to avoid formality in its proceedings and shall not be bound by any enactment or rule of law relating to the admissibility of evidence in proceedings before the courts of law. The tribunal shall make such enquiries of persons appearing before it and witnesses as it considers appropriate and shall otherwise conduct the hearing in such manner as it considers most appropriate for the clarification of the issues before it and generally to the just handling of the proceedings. (2) Subject to paragraph (1), at the hearing of the originating application a party shall be entitled to give evidence, to call witnesses, to question any witnesses and to address the Tribunal."
[34]It is to be noted that the tribunal's discretion under Rule 9(1) to conduct of the hearing "in such manner as it considers appropriate for the clarification of the issues before it and generally to the just handling of the proceedings" is expressed in very wide terms. The right of a party "to question any witness" provided under Rule 9(2) is expressed to be "Subject to paragraph (1)".[35]In Zurich Insurance Co v Gulson (1998) IRLR 118, Kirkwood J said at p. 119:
"It is indeed the duty of the Tribunal, as we see it, to keep the enquiry before it within what it considers to be proper bounds. If in the end the Tribunal reaches a conclusion that is flawed because it has disabled itself from receiving and did not receive relevant and significant evidence, it is conceivable that that may be a ground of appeal. ... A party does not have an absolute right to cross-examine come what may. The Tribunal has a discretion as to the conduct of the proceedings before it in this regard." (Paragraphs 14 and 16.)"
[36]While Zurich Insurance was dealing with a different factual situation, it follows both from the wording of Rule 9 and the dictum of Kirkwood J in Zurich Insurance that a party's right to cross-examine is subject to the tribunal's general discretion as to "the just handling of the proceedings": it is not an absolute right. Bearing in mind that an appeal to this Appeal Tribunal lies only on a point of law, it is for the Appellant to satisfy us that the employment tribunal exercised its discretion in a manner that was erroneous in law, or in a way that no reasonable tribunal, properly directing its mind to the relevant issue, could have exercised its discretion.[37]We do not think it is useful to lay down any general guidance on how the discretion to control cross-examination under Rule 9 of the 1993 Rules is to be exercised, not least because the tribunals now have wider powers of case management under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001. The overriding principle, however, is that the proceedings taken as a whole must be fair. That means, among other things, affording a party a reasonable time to put his case, including time for cross-examination if he so wishes. How long is 'a reasonable time' will depend on all the circumstances; the interests of justice do not require that cross-examination should be disproportionately long, nor that collateral issues should be explored at length. In some cases it may, depending on the circumstances, be desirable for the chairman to establish in advance how long the cross-examination is likely to last, and to indicate, within reason, the time the tribunal is prepared to allot for the purpose. By the same token, advocates have a duty not to be unduly lengthy in cross-examination and to keep the tribunal informed of any difficulties likely to arise, particularly if there is a risk of a case going part heard.[38]In the present case, matters turned on essentially two issues(a) the use of the stamps, and(b) the use of the internet, the latter being the central issue. Mr Jones was the witness for the Respondents. Mr Bainbridge, who is a qualified solicitor and states that he is experienced in employment law cases, cross-examined Mr Jones for about one hour and forty minutes. In general that seems to us to be an ample opportunity to cross examine.[39]It appears from Mr Bainbridge's evidence and the Chairman's notes that Mr Bainbridge had been cross-examining for 1¼ hours, when the Chairman intervened at around 12.15 pm. Up to that point, background matters had been covered at length, as well as the question of the stamps. Unfortunately, Mr Bainbridge had not yet put to Mr Jones the Appellant's case on internet usage, which was the principal issue in this case. It appears from the evidence of the Chairman and Mr Cook that this was, at least partly, because Mr Bainbridge was working off a prepared script and did not seem to adapt his prepared questions, as he was going along, in the light of Mr Jones' answers.[40]Between 12.15 pm and 12.37 when the cross-examination ended, a period of just over 20 minutes, Mr Bainbridge was able to put questions to Mr Jones on the issue of internet usage. It is plain from the evidence that he did so. However, in paragraph 15 of his affidavit of November 1999 Mr Bainbridge identifies four matters which, according to him, he was unable to put before he was finally stopped, namely(a) the Respondent's assertion that the Appellant had lied when confronted by Mr Jones as to the extent of her internet usage;(b) the Appellant's separate claim for sex discrimination/unfair dismissal on the ground that she had been treated less favourably than a male employee suspected of using the internet;(c) Mr Jones' alleged change of attitude towards the Appellant once he knew she was pregnant; and(d) the reason for the Respondent's alleged refusal to provide the Appellant with a reference.[41]Of those matters, issue (a), the question whether the Appellant lied, was undoubtedly of some importance. However, we can see no reason why that matter should not have been put to Mr Jones, either in the 1¼ hours of cross-examination that preceded the Chairman's intervention, or in the further 20 minutes that followed that intervention. We note in particular from the Chairman's Notes that in the period after the Chairman's intervention, Mr Bainbridge asked questions not only about internet usage, but also about various other matters including the disciplinary proceedings. If (a) was of central importance, it could still have been put at that stage. Issues (b), (c) and (d) seem to us to be of subsidiary importance, but again we can see no good reason why those matters could not have been canvassed in the time available, either before or after the Chairman's intervention.[42]It could perhaps be said, with the benefit of hindsight, that the Chairman could have intervened earlier, for example to remind Mr Bainbridge that the clock was ticking on, that the case was listed for a day, and that he (Mr Bainbridge) should focus on covering the main issues in the time available. On the other hand, the Chairman had before him a qualified advocate, and did not, at the outset, have had any particular reason to think that cross-examination would be unduly prolonged. Since Mr Bainbridge was in a better position than the Chairman to know how long he (Mr Bainbridge) was likely to be in cross-examination, and since Mr Bainbridge must have known that the case was listed for only one day, in our view Mr Bainbridge himself had a duty to keep the length of his cross-examination under review and to alert the Chairman to any possible difficulties on timing, so that the matter could be properly discussed.[43]In the Chairman's view, had he not intervened at 12.15 pm and imposed a time limit, the case would have gone over to another day. Given that on his own evidence Mr Bainbridge seems to have anticipated spending a total of well over 2 hours in cross-examination, in our view there was a significant risk of the case being adjourned part heard, had the Chairman not intervened when he did. Had the case gone over, the additional expense and delay would have prejudiced both parties.[44]In all these circumstances, we do not think that, in indicating, in the present case, after 1¼ hours of cross-examination, that Mr Bainbridge should finish in a further 15 minutes, the Chairman exceeded the wide discretion which the tribunal enjoys under Rule 9 of the 1993 Rules. Specifically, we do not think it was incumbent on the Chairman to have made one last inquiry of Mr Bainbridge at around 12.45 pm as to what further issues Mr Bainbridge wished to put. It was up to Mr Bainbridge to so conduct his client's case that all the relevant issues were put in the period from 11.00 am to 12.45 pm.[45]We add that, quite apart from cross-examination, Mr Bainbridge was able to put his client's case through her witness statement, her examination-in-chief, any re-examination, and in his closing speech. There is thus no reason to believe that the tribunal did not have ample opportunity to assess the credibility of Mr Jones, and of the Appellant, respectively. The procedure followed in this case, looked at in the round, was not in our view unfair or a denial of justice.[46]On these grounds we reject the Appellant's submissions on the cross-examination issue. The other issues in the case[47]The Appellant criticises the tribunal's decision on a number of subsidiary points, as follows.(a) The tribunal made a mistake in finding at paragraph 4(d) of their decision that the respondent installed a telephone line in the appellant's house after she had announced that she was pregnant. The appellant's case was that that was done before she had informed the respondent that she was pregnant. Her contention was supported by a fax from British Telecom produced in evidence, and Mr Jones accepted that the telephone line had been installed before the appellant informed the respondent of her pregnancy in June 1998. Had the tribunal not made an error in this finding they would or might have taken a different approach to the question whether the appellant had been treated less favourably by the respondent after she had informed the respondent that she was pregnant.(b) The tribunal made an error in under-calculating the damages for wrongful dismissal by £100 in failing to take into account the monthly contribution of £100 made by the respondent to the appellant's pension fund.(c) The tribunal made an error of fact in finding that the appellant's internet usage was "extensive", or "wholesale" and that "she spent a long time on it" in that the evidence before the tribunal was that the appellant had made approximately 150 "searches" over a number of days which took a total of only 111 minutes at a cost to the respondent of approximately £1.67. The findings of the tribunal on this point were perverse, in that no reasonable tribunal could have found that such usage was of sufficient basis for dismissal.(d) The finding by the majority of the tribunal that the appellant's dismissal was fair failed to take into account that the respondents had not warned the appellant that internet usage for personal searches might lead to disciplinary action (see W Brookes and Son v Skinner [1984] IRLR 379), and that there was at least some evidence of some internet usage being allowed by the respondent (see paragraphs 5(a), 6(j), 6(h), and 8(b) of the tribunal's decision).(e) The failure to take disciplinary action against other employees for internet usage amounted to inconsistency of treatment by the respondent (see e.g. Post Office v Fennell [1981] IRLR 221).(f) At the outset of the hearing before the employment tribunal she was given leave to add a new claim to the effect that the respondents' failure to provide her with a reference after she left their employment was an act of sex discrimination contrary to section 4 of the Sex Discrimination Act 1975. However, there is no adjudication on this point in the tribunal's decision.[48]The Respondent submits(a) the appellant did not challenge the basis of the calculation of the damages for wrongful dismissal when she had the opportunity to do so;(b) as regards the use of the internet by other staff members, the tribunal correctly took into account the evidence presented to them;(c) as regards the tribunal's alleged failure to consider that no-one had expressly told the appellant not to make personal use of the internet, the tribunal made its perfectly proper conclusions on the basis of the evidence that was before them;(d) while the tribunal may have erroneously situated the installation of the telephone line after, rather than before, the appellant's announcement of her pregnancy that is not a material error given, in particular, that there is other evidence on which the tribunal could properly have concluded that the respondent's attitude to the appellant did not change after she announced that she was pregnant (see paragraph 5(a) (ii) on page 15 of the tribunal's decision);(e) the findings of the tribunal in respect of the extent of the appellant's use of the internet were fully justified on the basis of the evidence; and the appellant herself had admitted during the disciplinary hearing that the question whether her use of the internet was reasonable was "debatable". Moreover the appellant was dismissed not merely because of the use of the internet but also because of the fact that she had lied about it and that the respondents had thereby lost trust and confidence in the appellant.[49]As regards the alleged victimisation complaint, the Respondent submits that there was no evidence before the tribunal that the Respondent had received a request for a reference or that they had refused to act upon the alleged request. The tribunal did not err in law in failing to make any findings of fact in relation to an issue about which there was no evidence.[50]Dealing first with the date of installation of the telephone, it does appear to us that in paragraph 4(d) of its decision the tribunal erroneously placed the installation of the telephone line after, rather than before, the Appellant told Mr Jones that she was pregnant. We are not persuaded, however, that this was an error of fact so material as to lay the foundation for an error of law. A large number of factual points are canvassed from paragraph 4 onwards of the decision and this is only one of them. The installation of the telephone at home was a background matter which occurred some time before the Appellant's dismissal and it did not directly form part of the central issue in the case, which was whether the Respondents dismissed the Appellant on 23 July 1998 for her internet usage in July 1998 (and in the light of the previous warning to her over the stamps), or because she was pregnant. That issue turned very largely on the events of 22 July 1998 and the disciplinary hearing on 23 July 1998. We do not consider that the question of when the home telephone was installed was sufficiently material as to affect the tribunal's overall assessment of the credibility of the witnesses (and particular of Mr Jones) in dealing with the specific events in the third week of July 1998. That is further supported by the findings of the majority at paragraph 5(a)(ii) of the tribunal's decision, cited above.[51]As regards the Appellant's criticisms of the tribunal's findings regarding the extent of her internet usage, the absence of a specific warning about internet usage, and the possibility that other employees had used the internet, those were all matters for the tribunal to assess on the evidence before them. We are not persuaded that those matters give rise to any error of law. As regards the suggested error of £100 in the calculation of the Respondent's damages for wrongful dismissal, there is no evidence that such a calculation was ever presented to the tribunal.[52]Finally, as regards the Appellant's victimisation claim based on the alleged failure to provide her with a reference, it does appear that such a claim was added by consent at the start of the hearing. We are not, however, satisfied on the material before us that the Appellant ever laid before the tribunal any sufficient evidential basis for her claim. Although according to her statement the Appellant asked for a reference, the questions whether that request was received by the Respondents, what their response was, what were the Respondents' reasons for not supplying a reference, and whether those reasons fell within the statutory provisions regarding victimisation, do not appear, from the material before us, to have been canvassed in evidence before the tribunal. For the reasons already given in the earlier part of this judgment, we think there was ample opportunity for that to have been done. Given that in this case the Appellant was dismissed, in effect, on grounds of a breakdown of trust between her and her employers, the Respondents' failure to supply a reference would not necessarily constitute victimisation.[53]There is no general duty on tribunals to deal with every aspect of a complaint, even if the complaint has not been formally abandoned: Mensah v East Hertfordshire NHS Trust [1998] IRLR 531 (CA), at paragraphs 14-22. In the light of all circumstances set out above, we are not satisfied that the tribunal's apparent omission to deal with the victimisation complaint constitutes an error of law, given the apparent paucity of the evidence before the tribunal on this point.[54]The appeal is therefore dismissed.