MRS R JONES v (1) THE LONDON BOROUGH OF HAVERING (2) THE GOVERNING BODY OF ST EDWARDS SCHOOL [2003] UKEAT 1099_01_2904

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 1099_01_2904Case No Appeal No. EAT/1099/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS R JONESAPPELLANT(1) THE LONDON BOROUGH OF HAVERING (2) THE GOVERNING BODY OF ST EDWARDS SCHOOLRESPONDENT
Before
His Honour Judge J BurkeDate 29 April 2003
[1]APPEARANCES For the Appellant MR D CRAIG (of Counsel) Instructed by: Reynolds Porter Chamberlain Solicitors Chichester House 278-282 High Holborn London WC1V 7HA For the Respondent MS J BROWN (of Counsel) Instructed by: Mrs Christine Dooley Head of Law London Borough of Havering Ballard Chambers 26 High Street Romford RM1 1HR HIS HONOUR JUDGE J BURKE QC The background Mrs Jones was employed by the Respondents as a full time teacher at St Edwards School, Romford, Essex, from 1 September 1976 until her resignation, which took effect on 30 April 2000. She then presented a claim to the Employment Tribunal that she had been constructively and unfairly dismissed; her claim was heard by the Employment Tribunal, sitting at Stratford and chaired by Mr Duncan, over five days in April and July 2001; by their Decision, sent to the parties with Extended Reasons on 31 July 2001, the Tribunal dismissed Mrs Jones' claim on the basis that there had not been any breach of any term of Mrs Jones' contract of employment and therefore there was no constructive dismissal.[2]Mrs Jones sought to appeal to the Employment Appeal Tribunal on several grounds; at the preliminary hearing of her appeal, on 8 May 2002, she was permitted to pursue her appeal to a full hearing on the sole ground that the Tribunal had prevented her from asking questions in cross-examination of the Respondents' witnesses and from herself giving evidence as to the content of a Mental Health Risk Assessment; the appeal before us was, accordingly, limited to that ground.[3]The context in which the issue of the mental health risk assessment arose can be set out in brief terms. There was a considerable history of dissension between Mrs Jones and the school's Head Teacher, Mr Drew; it is not necessary for present purposes to set that history out. The Tribunal made extensive findings of fact as to that history, which appear in paragraph 5 of their Decision. It is sufficient to state that Mrs Jones had complained for some time prior to 1999 that she had too great a workload, that she was treated unfavourably as compared with other staff and that her work was causing her excessive stress and anxiety. The Respondents, by their Head Teacher, Mr Drew, and otherwise, did not regard Mrs Jones' complaints as justified.[4]Mrs Jones was absent from work from late April until early July 1999; medical certificates showed that she was suffering from an anxiety state. On 29 July 1999 she saw the Respondents' Occupational Health Physician, Dr Karunaratne, who advised that a Mental Health Risk Assessment on Mrs Jones' job should be carried out. On 11 October 1999, after seeing Mrs Jones again, Dr Karunaratne advised Mr Porter of the Respondents' Educational Personnel Section that he should proceed with the risk assessment which she had previously recommended; by December 1999 no risk assessment had been completed or even started; and as a result Mrs Jones tendered her resignation, which was to be effective from 5 January 2000.[5]However, on 20 December 1999, at a meeting attended by Mr Drew, Mr Porter, Mrs Jones and her trade union representative, Mrs Jones was persuaded to withdraw her resignation on the basis that the Respondents would proceed with the Mental Health Risk Assessment. That assessment was to start on 16 January 2000; and on that date and on two subsequent occasions over the following three weeks meetings took place with the same persons present. No proper minutes or other record were kept of the meeting. At the end of the third meeting, on 1 February 2000, Mr Porter told Mrs Jones that he would write to her setting out what had been discussed and agreed; but no such letter had been received when, on 28 February 2000, Mrs Jones submitted a resignation letter with effect from the end of the Easter term, saying that there had been no satisfactory outcome and that she had no alternative but to resign.[6]As it happened, on the same day Mr Porter wrote a letter to Mrs Jones setting out what he saw as the main issues and what, according to him, had been agreed or was to be done about them. Mrs Jones, however, declined to withdraw her second resignation.[7]Mrs Jones' case before the Tribunal was that the Respondents' conduct over the years amounted to a fundamental breach of the implied term in her contract of employment of trust and confidence and that the Respondents' failure to carry out a suitable Mental Health Risk Assessment constituted further such breach and was the "last straw" which entitled her to resign when she did, despite her withdrawal of her previous resignation. She also complained that the meetings were conducted in a confrontational and uncooperative manner. The Respondents' case was that there was no breach of the implied trust and confidence and that they had proceeded with the Mental Health Risk Assessment entirely appropriately.[8]The Tribunal While regarding it as unfortunate that no minutes of the three meetings in January and February 2000 were made and that a summary of what had been discussed with proposed solutions was not sent by Mr Porter to Mrs Jones for a month after the last of those meetings, the Tribunal concluded that Mrs Jones was given ample opportunity during these meetings to raise any issue which concerned, her, that they constituted a genuine attempt to identify, discuss and, so far as possible, solve Mrs Jones' problems and that, contrary to her evidence, the process had been concluded at the end of the third meeting. They held that Mr Porter's letter of 28 February 2000 was written before he knew of Mrs Jones' resignation and constituted a genuine attempt to deal with the main concerns that were still troubling Mrs Jones. (Paragraphs 12 and 13 of the Decision.)[9]On that basis the Tribunal concluded that nothing had occurred after withdrawal of the first resignation which justified Mrs Jones' second resignation; there was no breach of any term of Mrs Jones' contract of employment; and thus there was no constructive dismissal.[10]The Tribunal reached their conclusions after hearing over five days a case which was originally intended to last for two days; at the end of the third day, as the Tribunal record in paragraph 4 of their Decision, they were so concerned at the time being taken that they advised the parties that they had to conclude in the remaining two days allocated, gave each party the same overall time allowance and debited against that allowance the time which each party had so far taken up. Mrs Jones' appeal against the imposition by the Tribunal of these time constraints was not permitted to proceed to a full hearing; and we make absolutely no criticism of the Tribunal's entirely proper attempt to ensure that the case was dealt with in the time available. Nevertheless the Tribunal's concerns about time may have influenced the course they took in the relation to the point which is the subject matter of this appeal.[11]That point arises in this way. We have already referred to the fact, as recorded by the Tribunal, that it was part of Mrs Jones' case that the exercise which the Respondents purported to carry out in January and February 2000 did not constitute a proper Mental Health Risk Assessment. In her witness statement, which formed the basis of her evidence-in-chief, Mrs Jones set out (at paragraph 86) that at the beginning of the first meeting she asked Mr Porter what constituted such a risk assessment and (at paragraph 89) at the end of the third meeting she wondered whether what had occurred amounted to such a risk assessment. In cross-examination, as set out in the Chairman's Notes, she described that, at the meetings, there were discussions about problems but that what a Mental Health Risk Assessment was was not explained to her. In contrast, it was the Respondents' case that they had carried out a proper Mental Health Risk Assessment. Mr Porter, in his witness statement, at paragraphs 28 - 30, set out what was the purpose of the risk assessment, that it was the first such risk assessment carried out by the Respondents on a member of teaching staff, that he had been trained to carry out risk assessments and that he undertook the risk assessment in the manner which he adopted following the advice of Dr Karunaratne's predecessor, and the then Health and Safety Manager. He then proceeded to describe the meetings and concluded, at paragraph 51:
"As an assessor, I felt that we had addressed all of the points that Rosina had raised, made an assessment of what control measures (if any) could be made by the school and what action needed to be taken immediately."
It is entirely plain that the Respondents were positively advancing as an important part of their case that they had properly carried out the risk assessment which Dr Karunaratne had advised.[12]When Mr Porter came to be cross-examined, it is not in dispute that Mrs Jones (who was representing herself with the assistance of her son) sought to ask him questions as to how a Mental Health Risk Assessment should be carried out; but she was not permitted to do so. Mrs Jones asserts that she attempted to cross-examine Mr Porter on this issue; she was prevented by the Chairman from doing so on the grounds firstly that she had not herself given evidence as to how a Mental Health Risk Assessment should be carried out and, secondly, on the basis that she was not qualified to make assertions as to how such an assessment should be carried out. She was obliged, pursuant to the Employment Tribunals Practice Direction, to confirm that assertion in an affidavit; she did so; and the affidavit was sent to the Chairman of the Tribunal for his comments.[13]The Chairman sent his comments to the Employment Appeal Tribunal on 15 November 2001. In paragraph 29 of those comments he said:
"I believe Mrs Jones tried to introduce some extracts from books or papers about Mental Health Risk Assessments when cross-examining Mr Porter. I was unhappy about this because it had not been part of Mrs Jones' case that there was scientific support for contending that a Mental Health Risk Assessment should be carried out in any particular way and the Respondents had had no opportunity to consider the extracts in advance and check whether they represented a generally accepted viewpoint. Mr Porter knew nothing about the extracts and I took the view that cross-examination based on them would be unfair to the Respondents, in particular because it would in effect allow Mrs Jones to introduce unchallenged evidence on how a Mental Health Risk Assessment should be carried out. I accordingly did prevent Mrs Jones pursuing this line of cross-examination."
[14]At the preliminary hearing the Chairman was requested to produce his Notes of Evidence before the Tribunal, limited to the issue of the Mental Health Risk Assessment and any indication in those notes as to whether Mrs Jones was prevented at any stage from adducing evidence in relation to that assessment. The Chairman sent the relevant notes to the Employment Appeal Tribunal on 27 June 2002 with an accompanying letter in which he elaborated upon what had been set out in paragraph 29 of his comments which we have set out above. We do not regard as necessary to set out the contents of the letter in detail. However, the letter also described how at one point the Chairman had asked one of his lay members to take a note; and it is that note from one of the lay members, rather than the Chairman's Notes which records the passage in the course of the hearing during which the refusal to permit Mrs Jones to cross-examine Mrs Porter as to the content of a Mental Health Risk Assessment occurred. From that note, it is clear that Mrs Jones was seeking to ask Mr Porter about how a risk assessment should be carried out; the Chairman asked where she was "going with this". She replied "I want to say that it was not a risk assessment". The Chairman said "You have not given evidence of what a risk assessment should be. You are trying to bring in evidence by the side door". Mrs Jones' son asked if Mrs Jones could now give such evidence and was told that Mrs Jones had given her evidence.[15]Mrs Jones responded to the Chairman's comments and subsequent letter in a further affidavit dated 5 November 2002 in which he stated that she had not attempted to introduce any extracts from books or papers about Mental Health Risk Assessments by way of cross-examination of Mr Porter and that the documents she had in front of her and from which she was seeking to ask her questions were her own notes which she had made of questions which she wished to ask; and she exhibited those notes to her further affidavit.[16]It was agreed between Mr Craig, who appeared before us on behalf of Mrs Jones, and Ms Brown, who appeared on behalf of the Respondents both before us and before the Tribunal, that the Chairman, in referring to extracts from books and papers which he believed to be the documents from which Mrs Jones was reading and seeking to cross-examine Mr Porter, was mistaken and that Mrs Jones was, in fact, referring to her notes and seeking to ask questions from the notes which she exhibited to her second affidavit, although in part her notes and the questions she sought to ask from the notes were derived from books which she had read about risk assessments. Ms Brown submitted that the Chairman should have the opportunity to comment on Mrs Jones' second affidavit and in particular on the questions which Mrs Jones wished to put as set out in her notes. We decided that it was not necessary to delay further the determination of or to increase the cost of this appeal by referring the second affidavit back to the Chairman for his further comments. It was accepted that there had been the curtailment of cross-examination which we have described, for the reasons set out both in paragraph 29 of the Chairman's comments and in his further letter, and which appear, to a substantial extent, from the lay member's notes. It was accepted that the Chairman was in error in believing that the documents which Mrs Jones had in front of her were or were extracts from textbooks or papers. There was, in practical terms, nothing on which the Chairman could usefully comment further. It is for us to determine whether, in limiting cross-examination as they did, the Tribunal erred in law. Conclusions[17]Mrs Jones' appeal was permitted to proceed to a full hearing on the grounds that she was prevented both from cross-examining the Respondents' witnesses as she wished and that she was prevented from giving further evidence herself as to what she put forward as the content of an appropriate Mental Health Risk Assessment. Mr Craig focused his arguments primarily on the limitation of cross-examination of Mr Porter; and we will address that issue before considering, briefly, the arguments as to Mrs Jones' own evidence.[18]There can, in our judgment, be no doubt that whether or not the Respondents had carried out a proper Mental Health Risk Assessment of Mrs Jones' job was an important issue between the parties. In response to Mrs Jones' complaints that her work caused her excessive stress and anxiety and her absence for over two months, due to an anxiety state, the Respondents' own Occupational Health Physician recommended that such an assessment be carried out. Mrs Jones tendered her original resignation when that assessment was not carried out within two to three months of Dr Karunaratne's advice; she was persuaded to withdraw her resignation on the basis that the Respondents would now proceed with the assessment; but she subsequently resigned for the second time. She claimed that, at least in part, her second resignation arose from the Respondents' continued failure to carry out a proper risk assessment and that what they had carried out was not such an assessment. In these circumstances the Tribunal had to consider whether what the Respondents had done was sufficient to amount to a proper Mental Health Risk Assessment or not.[19]Ms Brown submitted that this issue, as opposed to the confrontational and uncooperative style of the relevant meetings, was not at the heart of or was not a substantial part of Mrs Jones' case. Her real complaint, it was suggested, was the way in which the Respondents behaved during the meetings. However, paragraph 11 of the Tribunal's Decision makes it clear that it was part of Mrs Jones' case that there was no proper risk assessment; the Tribunal clearly saw that as a separate point from her criticism of conduct of the meetings to which the Tribunal refer separately in paragraph 12 of their Decision.[20]In our judgment, it is plain from the material before us that, although it was not her only point, it was an important part of Mrs Jones' case that there had not been a proper Mental Health Risk Assessment; and in seeking to cross-examine Mr Porter as to the content of such a risk assessment, Mrs Jones was seeking to cross-examine on a relevant and, indeed, potentially very important issue.[21]Mr Craig submitted firstly that, on the basis that the issue to which the cross-examination was directed was relevant, the Tribunal had no discretion to prevent Mrs Jones from cross-examining on that issue, and secondly, that the Tribunal had erred in their reasons for so preventing her in two respects, namely:(a) they wrongly believed that she was seeking to read from and introduce in evidence textbooks or papers when she was, in fact, reading from her notes of questions she had prepared in advance (albeit obtaining information from textbooks or papers) and(b) they wrongly believed that she could not cross-examine Mr Porter on matters which went to the appropriateness of the risk assessment without herself having given evidence of those matters.[22]As to (b) Mr Craig further submitted that if the Tribunal were correct in their view that Mrs Jones could not cross-examine Mr Porter on those matters without herself giving evidence as to them, the proper course was to give her the opportunity to give such evidence (which opportunity she plainly sought - see the lay member's notes); but, he argued, she had laid the foundations for her point in her evidence-in-chief.[23]Ms Brown submitted that Rule 9(1) of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993, which applied at the time of the hearing before the Tribunal, but which does not differ from Regulation 11(1) of the Employment Tribunals (Constitution and Rules of Procedure Regulations) 2001, which succeeded the 1993 Regulations on 16 July 2001 (after the hearing but before the promulgation of the Decision in this case) gave the Tribunal a complete discretion to control and limit cross-examination in such manner as they considered appropriate. Whereas part 32 of the Civil Procedure Rules applying in the Civil Courts and, before them, the Rules of the Supreme Court and the County Court Rules set out a presumptive set of rules and principles governing in particular the powers of the Courts to control evidence (e.g. part 32.1 of the Civil Procedure Rules), in the Employment Tribunal, to which none of those rules apply, there is a different regime which gives the Tribunal the widest discretion and which, in using the words, in the present Rule 11(1) of Schedule 1: "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" requires the Tribunal to limit or prevent cross-examination which, in the view of the Tribunal, is not going to clarify the issues or do justice between the parties and is not, therefore, going to contribute to the just handling of the proceedings.[24]She submitted that the Chairman's comments in paragraph 29 of his response to Mrs Jones' affidavit were appropriate and that the Tribunal's rulings, based on the reasons set out in those comments, was a just and appropriate way of preventing Mrs Jones from relying on the contents of textbooks or other expert material which Mr Porter had not seen and which the Respondents could not challenge.[25]We were referred by Mr Craig to the Modern Law of Evidence (4 th addition 1996) by Adrian Kean in which, at chapter 6 section 1(ii)(a) the learned author says:
"Cross-examination as to matters in issue The questions of the cross-examiner are not restricted to matters proved in examination in chief but may relate to any fact in issue or relevant to a fact in issue. This does not mean that evidence which is otherwise inadmissible can become admissible by being put to a witness in cross-examination; the ordinary rules relating to the admissibility of certain types of evidence operate to prevent such evidence from being elicited in cross-examination as well as in examination in chief"
We were also referred to a similar extract from Cross -v- Tapper on evidence (8 th edition 1995) in which the learned author, at chapter 6 section 3 says:
"The object of cross examination is twofold, first, to elicit information confirming the facts initially relevant to the issue that is favourable to the party on whose behalf the cross examination is conducted and secondly to cast doubt upon the accuracy of the evidence in chief given against such party"
These expressions of general principle are not of course intended to relate specifically to the proceedings of the Employment Tribunal which are conducted with a lower formality than in the Courts and where the rules provide to the Tribunal a very wide discretion; but that discretion must be exercised in accordance with the principles of justice and fairness; and if, as we accept and regard as well established in general principle, cross-examination on behalf of a party who has already given evidence in chief is not limited to matters which that party has put forward in that evidence, it is difficult to see, assuming the cross examination to go to a relevant issue, how the just and fair application of Rule 9(1) of Schedule 1 to the 1993 Rules and Rule 11(1) of Schedule 1 to the 2001 Rules can permit the curtailment of such cross-examination on that ground alone.[26]Mr Craig supported his argument based on general principle by reference to the decision of the House of Lords in Bushell -v- Secretary of State for the Environment [1981] (AC 75 ) which concerned the refusal by an inspector chairing a local planning enquiry into a proposal to build two sections of motorway to permit cross-examination as to the need for the motorway or as to the reliability of the Department of the Environment's "Red Book" used as a standard basis for the assessment of future traffic growth. The House of Lords allowed the Secretary of State for the Environment's appeal against the Court of Appeal's quashing of the schemes, on the basis that the matters as to which cross-examination was sought were matters of general policy and were not suitable for investigation by individual inspectors at individual local enquiries.[27]Lord Edmund-Davies, who dissented but not on the basis of this extract from his speech, said, at page 116 B - D:
"The general law may, I think, be summarised in this way: (a) In holding an administrative enquiry (such as that presently being considered) the inspector was performing a quasi judicial duty. (b) He must therefore discharge them in accordance with the rules of natural justice. (c) Natural justice requires that objectors (no less than departmental representatives) be allowed to cross-examine witnesses called for the other side on all relevant matters, be they matters of fact or matters of expert opinion. (d) In the exercise of jurisdiction outside the field of criminal law, the only restrictions on cross-examination are those general and well defined exclusionary rules which govern the admissibility of relevant evidence (as to which reference may conveniently be had to Cross on Evidence (5 th edition) 1979 page 17); beyond those restrictions there is no discretion on the civil side to exclude cross-examination on relevant matters"
[28]We agree with Mr Craig's submission that if the principle there expounded applies to quasi judicial planning enquiries, it applies a fortiori to judicial proceedings before an Employment Tribunal. Lord Edmund-Davies plainly did not have in mind the curtailing of cross-examination or any other form of evidential material by way of case management for reasons of time; but such reasons have not been put forward by the Tribunal as the reason for their decision to curtail Mrs Jones' cross examination of Mr Porter in this case.[29]Ms Brown was not able to put before us any authority which indicated that the curtailment of cross-examination which occurred could amount to a just and fair application of the discretion given to the Tribunal by the Rules There are few decided authorities as to the exercise of that discretion so far as cross-examination or evidence-in-chief is concerned. We were referred to Snowball -v- Gardner Merchant [1987] IRLR 397 in which the employee claimed that she had been sexually harassed by her manager. In the course of her evidence the employers sought to cross-examine her as to her general attitude towards sexual matters, based on events which had occurred during the course of her employment. She denied the allegations put to her. The employers then sought to call evidence to establish the truth of those allegations; the employee objected. The Tribunal decided in the employers' favour. The Employment Appeal Tribunal preferred the arguments of the employers and upheld the decision of the Tribunal on the basis that the evidences ought to be called, save insofar as it went only to establish an atmosphere of prejudice, was relevant both to the issue of credibility and to the issue of the extent of the alleged detriment and injury to feelings sustained by the employee. The discretion set out in what was then Rule 8(1) of Schedule 1 to the Industrial Tribunals (Rules of Procedure) Regulations 1985 was described as "a free and unfettered discretion as to the admission of evidence".[30]We do not regard Snowball as providing any real guidance for present purposes; the EAT did not set out any detailed reasons for preferring the submissions of the employer; and the circumstances were in no way similar to those of the present case.[31]There is, in our judgment, some guidance to be obtained from the subsequent decision of the Employment Appeal Tribunal in Zurich Insurance -v- Gulson [1998] IRLR 118. In that case the employee claimed that she had been the victim of indirect sexual discrimination because, on her return from maternity leave, she was required to work on a new rota system introduced while she was away. Under that system she would have to work hours which were inconsistent with her childcare arrangements. The Tribunal refused to permit the employers to cross-examine the employee as to details of the family's income and outgoings so as to demonstrate, as the employers sought to do, that the employee and her husband could afford to pay for a full-time nanny. The EAT, upholding the decision of the Tribunal, said, having set out paragraph 9(1) of Schedule 1 of the 1993 Regulations:
"13 Those paragraphs give the industrial tribunal a discretion. It is of course a discretion that must be exercised judicially. The primary purpose of para. 9(1) is to allow the appropriate enquiries for the clarification of the issues before the tribunal. Beyond that, it is in no sense incumbent upon the tribunal and forms no part of the judicial exercise of the discretion it has, to allow lengthy and detailed cross-examination on matters that do not appear to the tribunal to be of assistance to it, however enthusiastically the advocate endeavours to pursue that line. 14 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 disabled itself from receiving and did not receive relevant and significant evidence, it is conceivable that that may be a ground of appeal. 15. In this instance, it is clear from the extended reasons that the tribunal had identified that this financial question was only one of many considerations that was relevant for its consideration. The tribunal would surely have been in the process of formulating in its mind, because such is in the nature of the judicial task, the respective significance of each such consideration and the tribunal had also the responsibility of ensuring the purposeful conduct of the business before it. 16. 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. Nothing in the very full argument of Ms Collier begins to persuade us that there was in any sense a wrong exercise of that discretion and this appeal is dismissed."
[32]The specific facts of Zurich Insurance -v- Gulson are not of any relevance to the present case; but the general principles expressed in the extracts which we have quoted are unsurprising; and we wholly agree with them. We agree that while an Employment Tribunal must keep the enquiry before it within proper bounds, the broad discretion given by the Rules must be exercised judicially. We agree, too, that a party does not have an absolute right to cross-examine as he or she wishes; but if cross-examination on a relevant issue is excluded, the Tribunal runs the risk of falling into error on the basis that they have not exercised their discretion judicially and have decided the case without hearing and taking into account relevant material.[33]Ms Brown relied on Angus Steakhouses -v- Ibrahim [1988] IRLR 420 , an unfair dismissal claim in which an issue as to dismissal was tried as a preliminary issue. The employee's case, therefore, was heard first. It was part of his case that, four days prior to the hearing before the Tribunal, the employers' manager had telephoned the employee's wife and told her that the employee had not resigned and that he, the manager, was going to have to give untruthful evidence to the Tribunal. Counsel for the employee chose not to adduce evidence from the employee's wife as to this conversation as part of his case for tactical reasons and first raised the conversation in cross-examination of the manager. Having done so, and in view of the replies which he elicited, he sought to recall the wife and was permitted to do so. She gave evidence, no doubt in detail, about the telephone conversation. Counsel for the employers then sought to recall the manager; but he was not permitted to do so. The Employment Appeal Tribunal held that the Tribunal had erred in refusing that permission.[34]At paragraph 29 of its judgment, the EAT said:
"In the present case the admission of Mr Tony [the manager] that the Applicant had not resigned was clearly relevant evidence and should have been called in chief. We cannot accept that there was any valid reason not to have done so. The remaining problems arose out of this failure."
Ms Brown submitted that this was an indication that evidence should be called in chief before cross-examination on material which could have been thus given in evidence; but in our judgment, no such principle can be derived from this decision of the EAT which was dealing with a case in which, for tactical reasons, Counsel for the employee had chosen not to adduce the relevant evidence as part of his case but was allowed to recall a witness to give that evidence. The Tribunal's error was in refusing to allow the manager to give her evidence in respect of what the employee's wife had said when recalled. The basis for the decision and the judgment does not suggest that, had there been no question of any recall of any witness, it would not have been open to the employee's Counsel to cross-examine the manager on the telephone conversation. In the absence of any evidence from his own side as to that conversation, he simply would have been unable to dispute the answers given by the manager in cross-examination. The situation was not analogous to that in the present case in which Mrs Jones was simply trying to cross-examine Mr Porter on a relevant matter but was not permitted to do so.[35]Having considered the authorities which were put before us, we return to this case which, as we see it, gives rise to no novel point of principle. We entirely accept that the Tribunal Rules provide a very wide discretion as to the admission of evidence and cross-examination by the Tribunal; but, as we have said above in paragraph 32 that discretion must be exercised judicially, i.e. in accordance with the principles of fairness and justice. In our judgment the Tribunal in this case erred in preventing Mrs Jones from cross-examining Mr Porter as to the content of an appropriate Mental Health Risk Assessment in the two separate respects put forward by Mr Craig. Firstly, there is no principle that cross-examination by or on behalf of a party who has already given his or her evidence is limited to matters given in evidence by that party; and we can see no basis on which, in fairness and justice, Mrs Jones could have been excluded from her proposed cross-examination on that ground. Paragraph 29 of the Chairman's comments and the lay member's notes make it clear that the Tribunal - or at least the Chairman without dissent from the lay members - took the view that the matters which Mrs Jones sought to put in cross-examination should be excluded partly because she had not herself given evidence as to them; but that view was, in our judgment, contrary to general principles. Secondly, the Tribunal was mistaken in believing, as they - or the Chairman without dissent from the lay members - plainly did, that Mrs Jones was seeking when cross-examining Mr Porter to introduce extracts from books or papers about a Mental Health Review Assessment which had not been disclosed. She was not seeking to "introduce" unchallenged evidence on how a Mental Health Risk Assessment should be carried out or to introduce "some extracts from books or papers"; she was seeking to ask questions from a document which consisted of her own notes. She was not seeking to put any extract from books or papers in evidence or to introduce unchallenged evidence; her questions would not have involved the introduction of any evidence; and the fact that her notes and her questions may have been based on specialist material which she had read did not, in our judgment, justify (and was not the reason put forward by the Tribunal as justifying) the Tribunal's refusal to allow her to put the questions to Mr Porter which she thought to put.[36]If Mr Porter agreed with any proposition put to Mrs Jones, based on her prepared questions, he would no doubt have expressed his agreement and thus that proposition would, through Mr Porter's mouth, have become evidence; but if he did not, he would have expressed his disagreement and any proposition with which he disagreed would not have become evidence. If he was unable to answer, he would have been free to respond accordingly; and, again, whatever proposition he felt unable to answer would not have become evidence. Unless he agreed with what was put to him, whatever Mrs Jones said could not become evidence in the case at all. The Tribunal's explanation of their curtailment of Mrs Jones' cross-examination, on the basis that she was seeking thereby to adduce evidence, involved, as we see it, a misunderstanding as to the nature of cross-examination. We strongly suspect that the Tribunal in deciding to exclude cross-examination as they did, were influenced by their very proper desire to ensure that the hearing was completed within the time allotted to it; we have some sympathy with the Tribunal; but unfortunately it is clear, in our judgment, that they exercised their discretion as to Mrs Jones' cross-examination of Mr Porter in a manner which was contrary to principle and was not a judicial exercise of that discretion; and in so doing they excluded what was potentially relevant and important cross-examination of Mr Porter.[37]For these reasons the Decision of the Employment Tribunal cannot stand. Ms Brown submitted that, if we concluded that the Tribunal had excluded Mrs Jones' intended cross-examination of Mr Porter in error, nonetheless we should dismiss the appeal on the basis that, even if Mr Porter had agreed with the proposition which Mrs Jones wished to put in cross- examination, his answers would not have affected the overall result; but a perusal of Mr Porter's notes indicates that we cannot be certain that the result would have remained unaffected by Mrs Jones' cross-examination, had she been able to proceed with it. It is to be noted that, in paragraph 11 of their Decision, the Tribunal said that although Mrs Jones contended that there was no proper risk assessment process, she was not able to suggest how a proper risk assessment process should have been carried out. The intended cross-examination contained her suggestions as to how a proper risk assessment process should have been carried out; as we have already said, if Mr Porter rejected her questions, her case would have been no further forward; but had her propositions in cross-examination been accepted, the Tribunal's view could have changed.[38]In these circumstances it is unnecessary for us to address the alternative submission that Mrs Jones should have been allowed to give further evidence herself so as to set out herself what she said was the content of a proper Mental Health Risk Assessment. Mr Craig, wisely, did not press this part of the appeal strongly; had it been necessary for Mrs Jones to give such evidence in order to enable her to cross-examine Mr Porter as she sought to do, we can well understand the Tribunal's reluctance so to permit, having regard in particular to the time problems with which the Tribunal and the parties were grappling. However, in our judgment, it was not necessary for Mrs Jones to give evidence as to the matters on which she sought to cross- examine Mr Porter; and we need not, therefore, consider this aspect of the appeal further. The result[39]It is impossible for us to know what would have been the impact of the cross-examination which Mrs Jones was not able to put forward. There must be a remission to the Tribunal; Ms Brown submitted that that remission should be to the same Tribunal which could hear the required cross-examination and reconsider the Decision in the light of that cross-examination. Mr Craig submitted that, in the light of the allegations made by Mrs Jones of bias and inappropriate conduct, levelled at the Chairman in particular, both in the Notice of Appeal and in the affidavits, it was necessary to remit this case to a different Tribunal. We take the view that the fact that Mrs Jones has made criticisms of the Tribunal or the Chairman, which did not get past the preliminary hearing stage of this appeal, should not influence our decision as to the nature of the required remission; but, having regard to the criticisms of the Tribunal or the Chairman which have succeeded, and to the serious risk that a re-hearing before the same Tribunal might not to the objective observer be regarded as just in the circumstances of this case, we have concluded that a remission should be to a different Tribunal.[40]Accordingly, the appeal is allowed and Mrs Jones' claim is remitted to a different Tribunal for re-hearing.