MISS C LA VERTUE v ILEX ENERGY CONSULTANTS LTD [2006] UKEAT 0520_05_1602

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2006] UKEAT 0520_05_1602Case No Appeal No. UKEAT/0520/05Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS C LA VERTUEAPPELLANTILEX ENERGY CONSULTANTS LTDRESPONDENT
Before
His Honour Judge J BurkeDate 16 February 2006
[1]APPEARANCES For the Appellant Written Submissions For the Respondent MR PETER LINSTEAD (Of Counsel) Instructed by: Messrs Henmans Solicitors 116 St Aldates Oxford OX1 1HA SUMMARY Practice and Procedure – bias, misconduct and procedural irregularity Unfair Dismissal – reasonableness of dismissal The Appellant alleged bias/misconduct on the part of the Chairman in dismissing her unfair dismissal claim and perversity/failure to consider matters which went to the misconduct for which she was dismissed. She withdrew part of the bias case after she and counsel for the Respondent were ordered to attend the EAT for cross-examination and did not appear at the hearing but asked us to deal with the appeal on paper. We did so. We found no bias or misconduct, no perversity and no error of law in the Tribunal's decision that the Respondent had carried out a reasonable investigation and had a reasonable belief in misconduct. We also rejected the ground of appeal based on disparity of treatment. HIS HONOUR JUDGE J BURKE QC The Appeal This is an appeal against the judgment of the Employment Tribunal sitting at Reading, chaired by Mr Byrne with Mr Cameron and Mr Pither as lay members and sent to the parties with written reasons on 4 May 2005. By that judgment the Employment Tribunal dismissed the claim of the employee, Miss La Vertue, that she had been unfairly dismissed by the Respondents, Ilex Energy Consulting Ltd (whom we shall call "Ilex").[2]Miss La Vertue now appeals against the dismissal of her claim. Although Miss La Vertue has taken various steps in this appeal, to which we will refer later, she has not appeared at the hearing of her appeal today. She has written to the Employment Appeal Tribunal indicating that she does not propose to attend and inviting us to deal with her appeal on paper. We have done so. Ilex have been represented by Mr Linstead of counsel. We have taken care in the course of Mr Linstead's submissions to ensure that he has dealt with all the points that are or might be open to Miss La Vertue in pursuance of her appeal and have challenged him to respond to and to explain any potential weaknesses in the decision of the Tribunal and in his submissions on behalf of Ilex. The facts and the Tribunal's decision[3]The material facts as found by the Tribunal can be summarized relatively shortly. Miss La Vertue was employed by Ilex from November 2001 to the date of her dismissal, 8 November 2004. As its name reveals, Ilex provides consultants to customers, presumably in matters relating to energy; and Miss La Vertue's job involved the making of travel arrangements for the 30 consultants in the company. In addition, Ilex had 5 administrative staff to serve the consultants, Miss La Vertue being one of those five.[4]In 2004 Miss La Vertue pursued a grievance under Ilex's Grievance Procedure against Mrs Warwick, her line manager; the Tribunal found that that grievance was fully investigated in accordance with the procedure; it was not upheld.[5]On a date unspecified by the Tribunal, Mrs Warwick decided to review the existing travel arrangements to see if Ilex could get better value for money from its travel provider. In the course of that review, on 24 September 2004 she met the existing travel providers and discussed with them whether Ilex could benefit from some form of what can perhaps be called a frequent flyer's card or BA company card which would create points, which could be used to pay for flights or hotel accommodation or possibly other benefits. She discovered that Ilex already had such a card and that the benefit of the points which that card generated was being taken by Miss La Vertue. The Tribunal found that Ilex did not previously have any knowledge at all that this was happening. Ilex undertook an investigation which led to a disciplinary hearing on 29 October 2004; as a result of which Miss La Vertue was dismissed for gross misconduct.[6]Miss La Vertue did not deny that she was, indeed, personally reaping the benefit of the points from the BA card used to purchase travel for Ilex consultants, for which travel, of course, Ilex paid. Her case was that it had been agreed that she should do so by a Mr Smol, previously Ilex's Finance Director.[7]The Tribunal found that Ilex had investigated this assertion. Mr Smol recalled that he had signed a document which substituted Miss La Vertue for her predecessor as Ilex's nominated controller dealing with BA; that document made no mention of Miss La Vertue's being entitled to the benefit of points earned through the use of the card. Mr Smol denied that he had entered into any such arrangement with Miss La Vertue.[8]To Mr Brown, who made the decision to dismiss, the key matters before him were Miss La Vertue's use of those points and her failure to disclose that use to her employers. Miss La Vertue's appeal from Mr Brown's decision was dismissed by Mr Cox.[9]The Tribunal heard evidence from Mr Brown and Mr Cox, and also from Mrs Warwick. The Tribunal was satisfied that neither Mr Brown nor Mr Cox was in any way affected in the decision that each made by Miss La Vertue's earlier grievance. The Tribunal recorded at paragraph 11 that, in the course of her evidence to the Tribunal, Miss la Vertue appeared to accept that she was not suggesting that her earlier unsuccessful grievance was a factor in her dismissal; but in any event the Tribunal found on the evidence that it was not.[10]The Tribunal went on to find that Mrs Warwick had investigated the use of the BA card properly and professionally. They found that the reason for the dismissal was misconduct and proceeded to consider whether the dismissal for that reason was fair or unfair. On that issue the Tribunal asked themselves three questions:(1) Did the Respondent have reasonable grounds to sustain their belief in Miss La Vertue's misconduct?(2) Did Ilex carry out an adequate investigation?(3) Was the procedure which was followed fair?[11]As to the first question, the Tribunal concluded, at paragraph 14, that in the light of the failure of Mr Smol to support Miss La Vertue's account of her practice in relation to the BA card, Ilex had reasonable grounds to believe that she was guilty of the misconduct we have described.[12]As to the second question, the Tribunal found that Mrs Warwick, Mr Brown and Mr Cox had spent a great deal of time on the investigation and on the disciplinary hearings, that the investigation was proper and full and more than adequate. We have already referred to the Tribunal's earlier finding that the investigation was carried out properly and professionally.[13]As to the third question the Tribunal found that the procedure followed was in line with Ilex's contractual procedures. It was clear to Miss La Vertue what matters were being investigated. The matter had been fully investigated before the disciplinary meeting. She had every opportunity to put her account of matters at all stages; the procedure was fair.[14]The Tribunal then addressed the issue of sanction. They set out that Miss La Vertue had taken advantage of the points to obtain hotel vouchers in the sum of £2,250, that she had kept that from Ilex until the matter came out into the open at the end of September 2004 and that in those circumstances dismissal for gross misconduct was within the range of reasonable responses; thus Miss La Vertue's claim failed. The history of the Appeal[15]Miss La Vertue does not challenge the Tribunal's approach to the law or its application of the legal principles which applied to a case of this nature. Those principles are straightforward, well-established and were not applied by the Tribunal in any manner adverse to Miss La Vertue's interest. It might be said that, looking at the way in which the Tribunal posed to themselves the three questions we have identified, the Tribunal did so in terms of considering whether Ilex had acted reasonably rather than whether they had acted within the range of reasonable responses. Any such error, and we are not saying that there was one, would have been in Miss La Vertue's favour.[16]Miss La Vertue's original Notice of Appeal, which she compiled herself, is based, to put it summarily, on the assertion that she did not receive a fair hearing because:(1) the Tribunal hearing had been fixed for two days but;(2) the Chairman was double booked on the second of those days and;(3) instead of offering an alternative second day the Tribunal started the hearing at 11.15am and decided in effect to shoe-horn the hearing into one day,(4) as a result, Miss La Vertue was unable to cross-examine Mrs Warwick and to develop her case as she wished. She asked that the Tribunal's decision be set aside and that another hearing be set so that, and we quote:
"I may finish questioning Mrs Warwick in regards to her presented evidence."
[17]This allegation of improper conduct of the hearing on the part of the Tribunal, pursuant to the Employment Appeal Tribunal's practice, led to an order, made by Burton P at the sift stage of this appeal, that Miss La Vertue should file and serve an affidavit giving details of the improper conduct relied upon and that the Chairman and lay members of the Tribunal should then be asked for their comments on that affidavit.[18]Miss La Vertue put in an affidavit, sworn on 13 July 2005, which consisted of her Notice of Appeal accompanied by details of various points which she says she would have liked to have cross-examined Mrs Warwick about, but did not cross-examine her about, and referred to various discrepancies in the evidence which she says were not brought up as part of her case because of time constraints.[19]In response, Ilex put in a witness statement from Judith Pepper, counsel who had represented Ilex before the Tribunal. In that statement, Ms Pepper stated that the hearing started at 10.05 am on the first day of what had been expected to be a two-day hearing. When it started, the Chairman said that he had only one day available and hoped to deal with the case in that day. The case had originally been fixed for one day; Miss La Vertue had not sought any enlargement; it was, as it happens, Ilex who had asked for a two-day hearing. When the Chairman indicated that he had only one day available, there was discussion between the Tribunal, Miss La Vertue and counsel as to the identification of the issues from which it became clear, if it was not already patent from the papers, as it almost certainly was, that the only real issue was the fairness of the dismissal; and there was discussion about the procedures which were to be adopted during the hearing, no doubt for Miss La Vertue's benefit as a litigant in person.[20]At about 10.20 am the Tribunal adjourned to read the witness statements and the documents; and the hearing re-started at 11.35 am. The witness statements were taken as read. Mrs Warwick was the first witness; after supplementary questions "in chief" and some questions from the Tribunal, she was cross-examined, according to Ms Pepper, until 1.15 pm when the Tribunal adjourned for lunch. At that stage, Ms Pepper, says, the Chairman indicated that cross-examination would be limited to half an hour, it seems clear for each witness, in pursuit of the over-riding objective and gave an indication of the questions which the Tribunal would have to answer in dealing with the issue of fairness, those questions being not in the same precise words but in substance the three questions which they addressed in their judgment and which we have already set out in paragraph 10 above.[21]The hearing re-commenced at 1.4 5 pm. Mr Cox was called; the same procedure was followed and he was cross-examined to 2.55 pm. After a five minute break, Mr Andrews was called and he was cross-examined. At 3.15pm Mr Brown was called and his evidence finished at 4.00 pm. After another five minute break, Miss La Vertue then gave evidence and was cross-examined by Ms Pepper whose cross-examination was time limited by the Chairman. Ms Pepper then made closing submissions. Miss La Vertue did not. The hearing ended at 5.15 pm. The Tribunal retired and soon returned and gave their decision at 5.20 pm, ending at 5.40 pm.[22]The Chairman's comments, dated 8 August 2005, explained the double booking. He set out how at the start of the hearing he informed the parties that he was available for one day only and why. He described how he identified the key issues as whether the dismissal for gross misconduct was fair or unfair and explained the procedure to Miss La Vertue. He stated that Miss La Vertue did not request a postponement because only one day was available or comment that her preparation had been on the basis of a two-day hearing. He said that he indicated that, if the Tribunal were not in a position to give their decision at the end of that one day, they would reserve judgment and deliberate and give judgment at a later date. He stated that he informed Miss La Vertue and Ms Pepper (when the hearing resumed after the lunch adjournment) that cross-examination would be limited to 30 minutes per witness.[23]He plainly did not agree that the cross-examination of Mrs Warwick was limited in any way and stated that that had not occurred. He attached to his comments a very detailed and meticulous timetable which must have been compiled from his contemporaneous notes – there is no other way in which such a timetable could have been put together. It is broadly similar to that of Ms Pepper but has greater detail. Ms Pepper and the Chairman differ in that he says that the reference to the curtailment of cross-examination occurred immediately after lunch whereas she says it occurred immediately before it; but both say that it occurred after Mrs Warwick's cross-examination had concluded.[24]The Chairman's note shows that Mrs Warwick was cross-examined in the morning for 35 minutes and that after lunch the other Ilex witnesses were cross-examined for 20 minutes, 13 minutes and 20 minutes respectively. On that timetable, Miss La Vertue's cross-examination of Mrs Warwick was not limited at all; and her cross-examination of the other witnesses was completed well before any 30 minute limitation came into force.[25]The lay members' comments do not directly address Miss La Vertue's complaint save that Mr Cameron said that Miss La Vertue had been given every opportunity to present her case fully to the Tribunal.[26]The appeal was then listed for a preliminary hearing which took place on 16 November 2005. By this time or possibly on that occasion a further new allegation emerged, namely that on the morning of the hearing Ms Pepper had told Miss La Vertue that she had had a private discussion with the Chairman before the hearing started about the issues in the case and some facets of the evidence.[27]The appeal was ordered to be set down for a full hearing. Miss La Vertue was required to file a further affidavit as to the new allegation, after which the Chairman would be asked for his further comments. Her affidavit was also to deal with an issue regarding the investigation aspect of the disciplinary proceedings against her being carried out by someone against whom she had herself made complaints - that is to say, of course as we now know, Mrs Warwick.[28]In her witness statement, at paragraph 16, Ms Pepper had said that Miss La Vertue had sought to put before the Tribunal medical evidence which the Chairman had rejected. At the preliminary hearing it was ordered that the Chairman's comments on this, too, should be obtained. At that hearing Miss La Vertue was represented by counsel, Miss Macafferty, under the ELAAS scheme. There is in the court file a document headed 'Amendments to Grounds of Appeal'. That document, in its first five paragraphs, sets out grounds of appeal in language which we recognize immediately as that of a lawyer. Grounds 1, 2 and 3 put into legal language Miss La Vertue's complaint about the time compression to which we have referred. Ground 4 refers to the medical evidence. Ground 5 states that the Tribunal erred in failing to reach a conclusion on the Appellant's case that her predecessor had also had the advantage of the air miles points with the Respondents' implied or expressed consent and without any disciplinary sanction.[29]This document is in two versions; in one of them, Ground 6 says:
"Due to the rushed proceedings, I have lost confidence in the Employment Tribunal that took the hearing, therefore I hereby request a new Employment Tribunal."
And in the other, Ground 6 says:
"This case should be remitted to a freshly constituted tribunal."
[30]We suspect that Miss Macafferty may well have drafted those paragraphs of this document which were drafted professionally, as often happens when an ELAAS representative appears on behalf of an appellant at a preliminary hearing; but no leave was given at that hearing to amend the Notice of Appeal, either by adding these new grounds as further grounds or by deleting the existing grounds and replacing them with these new grounds. What did happen was that it was ordered, by paragraph 5 of the Order of 16 November 2005, that any application for leave to amend the Notice of Appeal was to be made by Miss La Vertue within 14 days of the date of the Order. It appears that no such application was ever made. Therefore, strictly these new Grounds or further Grounds are not part of Miss La Vertue's Notice of Appeal. However, if Miss La Vertue had been here this morning and, if she had asked for leave to amend, it is likely that we would have given her such leave. It does not appear that Ilex are taken by surprise, particularly because the President of today's division of the Employment Appeal Tribunal took the step last week of having the document, or one version of the document, sent to the parties so that they could be prepared to deal with it. We think it right, since we have been asked by Miss La Vertue to consider her case on paper, to consider her case on paper as fully as it is fair to do.[31]After the preliminary hearing there was a further affidavit from Miss La Vertue relating to her point about what we will call the private conversation; and the Chairman commented on that. A further witness statement was put in from Ms Pepper. Accompanying the fax from Miss La Vertue, which reached the Employment Appeal Tribunal on Monday of this week, 13 February, saying that she was not going to attend today, was another document bearing the same date and faxed at the same time, which said this:
"Having considered the matter regarding the conversation which took place between myself and the barrister representing the Respondent I have decided to withdraw my statement."
That is a plain withdrawal by Miss La Vertue of her case based on the alleged private conversation.[32]Before that withdrawal there was on the papers a dispute between Miss La Vertue on the one hand, and Ms Pepper and the Chairman upon the other as to whether there was that private conversation; and there was a dispute between Miss La Vertue and Ms Pepper and the Chairman as to whether Miss La Vertue had been limited in her cross-examination of Mrs Warwick or of any other witness or in the way in which she presented her case. The President of this division of the EAT was asked to give Directions as to how those disputes were to be resolved. In line with the procedure set out in Facey v Midas Retail Security Ltd [2000] IRLR 812 it was directed on 10 February that Miss La Vertue and Ms Pepper attend for cross-examination, at the hearing of this appeal today, 16 February. Of course, again in line with Facey v Midas , no such order was made in respect of the Chairman and the lay members.[33]The next step was that, on 13 February, Ilex applied for an adjournment because Ms Pepper could not attend the Employment Appeal Tribunal today. However, by that time, the Deputy Registrar, who responded to Ilex's application, had been made aware that Miss La Vertue, (seemingly in response to the above Direction, but it does not matter whether it was or was not), had indicated that she did not intend to attend the hearing of the appeal; and therefore the request for an adjournment was refused.[34]As we have recorded, Miss La Vertue has not appeared today. In her absence and in the absence, therefore, of any live evidence from her and any opportunity to Ilex to cross-examine on the disputed issues, we have not felt it necessary to seek live evidence from Ms Pepper or to adjourn so that she could attend. The burden of proving misconduct in a case such as this lies, of course, on the person who asserts it i.e. in this appeal Miss La Vertue. The time compression[35]As we have just said, it is for Miss La Vertue to make good her disputed claim that the Tribunal failed to grant her a fair hearing.[36]We address that claim first. Was the hearing unduly and unfairly shortened in such a way as to prevent her from having a fair hearing? We, at the outset, acknowledge the very great importance which we attach and which the Employment Tribunals must also attach to the principle, now enshrined in Article 6 of the European Convention of Human Rights, that every litigant is entitled to a fair hearing. It has to be acknowledged, however, that the Tribunal have a discretion to exercise their case management powers in relation to the manner in which a hearing proceeds in such a way as is consistent with the overriding objective of dealing with a case justly, including, where practicable, ensuring that the case is dealt with in ways which are proportionate to the complexity and importance of the issues and ensuring that the case is dealt with expeditiously and fairly. See Rule 3(1) and 3(2)(b) and (c) of the Employment Tribunal Constitution and Rules of Procedure Regulations 2004 .[37]Mr Linstead submits that the principle applicable for the exercise of this discretion are set out in Alm Medical Services v Bladon [2002] IRLR 807 by the Court of Appeal in these terms; at paragraph 16:
"It is for the Tribunal with the assistance of the parties and their representatives to identify the relevant issues for decision and to exercise its discretionary in case management powers to decide whether the evidence adduced or the questions put to the witnesses in cross-examination are relevant. The exercise of the discretion will rarely be disturbed on appeal. It can only be successfully challenged if it can be shown that the Tribunal has exercised it contrary to legal principle or otherwise in a manner which is plainly wrong."
[38]Mr Linstead took us also to Zurich Insurance v Gulsen [1998] IRLR 118, a decision of the Employment Appeal Tribunal in which that Tribunal considered the exercise of a Tribunal's discretion in relation to cross-examination. The Employment Appeal Tribunal said, at paragraphs 13 to 14 of their judgment in that case:
"Those paragraphs give the Industrial Tribunal a discretion. It is of course a discretion that must be exercised judicially. The primary purpose of paragraph 9.1 is to allow the appropriate enquiries to the clarification of the issues before the Tribunal. Beyond that is in no sense encumbered to 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. 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 balance. If, in the end, the Tribunal reaches a conclusion which 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."
[39]In that quotation lies the principle which must be applied in this case. Did the Tribunal by its case management decisions disable itself from receiving, so that it did not receive, relevant and significant evidence? We are wholly satisfied on the material before us, firstly, that the Tribunal did take trouble to explain the procedure and the issues appropriately to Miss La Vertue, secondly, that there was no error of law in the manner in which the Tribunal exercised their discretion to control the hearing and to finish it within one day, and, thirdly that the course which the Tribunal took did not prejudice Miss La Vertue unfairly, did not disable the Tribunal from receiving relevant or significant evidence and did not create any unfairness.[40]Firstly, it is clear from the decision and from Ms Pepper and the Chairman's accounts that the Tribunal identified the issues correctly at an early stage; those issues were not at all complicated or difficult but were straightforward and standard issues which arise in a case of this type which had no features of any real complexity. Secondly, it is clear that the Chairman took a very accurate note of the times at which almost everything occurred during the day of the hearing. As we have already said that note must have been made contemporaneously; and we see no reason why we should not place full reliance on it as being accurate. There are minor differences between that timetable and that put forward by Ms Pepper; but they are of no substantial materiality.[41]We see no reason to exclude the essential reading time between 10.15 and 11.35 am from consideration as part of the hearing day. That reading time is necessary in any case in which there has not been an opportunity for the Tribunal to pre-read and that, of course, is the situation in most cases before the Tribunal.[42]The Tribunal started at 10.05 am; they took only half an hour for lunch and then continued, with two very short breaks, until the end of the evidence and submissions at 5.20 pm. The Tribunal shortened the time usually taken by treating the witness statements as read and were ready to postpone deliberation and judgment to another date if necessary. In the two days that had originally been fixed, had there been any question of remedy, that in a straightforward case would have expected to have been addressed and resolved; and similarly, any question of contributory conduct. Thus, much of what would have been taken up, in terms of time, on an ordinary two-day case was not needed; and during the one day that the Tribunal did devote to this hearing they actually gave this case more time, and substantially more time, than they normally would have done in a single day[43]Thirdly, Ms Pepper and the Chairman are united in their recollection that no question of shortening cross-examination arose until after Mrs Warwick had completed her evidence. While, particularly in the case of a litigant in person, the absence of a complaint to the Tribunal at the time about perceived procedural unfairness does not prevent that litigant in person, when aggrieved, from pursuing and, indeed, succeeding in an appeal based on such procedural unfairness; the absence of any complaint on Miss La Vertue's part (and she does not suggest she made any such complaint) is of evidential significance.[44]If we accept, as we do, the Chairman's timetable, Miss La Vertue completed her cross-examination of Mrs Warwick well before the time came when any question of limiting her cross-examination arose. Miss La Vertue has not appeared before us to make good her assertion that the limitation was imposed earlier. As we have said, the burden of proof is on her. In the absence of any oral evidence from her and any opportunity to see her under cross-examination; we are not satisfied that her account is correct; indeed, we are satisfied that no reduction in the time for which she was permitted to cross-examine Mrs Warwick occurred.[45]It is common ground that such a restriction was imposed by the Tribunal on subsequent witnesses; but in the case of Miss La Vertue such restriction was of no effect because she completed her cross-examination of the other witnesses for Ilex well before a half an hour had elapsed in each case. We should add that it is clear from Miss La Vertue's written documents, that is to say her Notice of Appeal and affidavits, that, leaving aside the private conversation issue and other specific points to which we shall come, her complaint about the time restraints is directed at her alleged inability to cross-examine Mrs Warwick That is clear from the Notice of Appeal, is clear from the quotation which we have already set out and is a theme which runs through everything that she has put before us. It is not alleged that she was curtailed in her cross-examination of any of the other witnesses; even if she did so complain, the timetable shows that she was not so curtailed.[46]In her affidavit, Miss La Vertue makes a number of points about discrepancies in the evidence which she says she was unable to identify to the Tribunal because of the rushed nature of the proceedings. We do not accept that she was dealt with unfairly in that way. What, in our judgment, has happened is that Miss La Vertue was not restricted in her cross-examination and not restricted in making submissions at the end of the evidence but chose not to make any submissions at all and has subsequently thought of a number of points that she would have liked to have made but did not make. That, of course, does not provide any basis for an appeal even in the case of a litigant in person, as Miss La Vertue was.[47]An example of the points of that nature which Miss La Vertue would like to make can be seen at page 3 of the details attached to her affidavit. It is a page numbered 45 in our bundle and starts, "In reply to the Chairman's question". (In passing it is relevant to note that, at the top of all her pages, she says that all page numbers refer to the bundle or Mrs Warwick's witness statement, thereby underlining the thrust of her case as being a complaint about her inability fully to cross-examine Mrs Warwick.) She complains, on that page, that it was inappropriate that Mrs Warwick should be the investigator. Mr Cox had said to the Chairman that he had no choice but to appoint her as the investigator because of Ilex's size as a small company. Miss La Vertue says that that was not true because Ilex was part of a large group and that group had offices in Horsham which could have provided HR services. Those must have been points which were well within Miss La Vertue's knowledge and easily open to her to make, if she had wanted to make them, at the Tribunal during the course of the hearing.[48]There is no reason to suppose that she was prevented from making those points, if indeed she was so prevented at all, by the rushed nature of the proceedings, as she alleges them to have been but, as we consider, they were not. Such constraints as these were, in our view, arose from proper case management decisions or at least case management decisions which can not be criticized as having been made in error of law.[49]We do not propose to go through other points of a similar nature because we have sufficiently identified the thrust of such points and have expressed our conclusion about the way in which the proceedings were addressed. In our judgment there is no criticism to be made of the Tribunal for the way in which they dealt with the proceedings or on the basis the proceedings did not enable Miss La Vertue to have a fair hearing.[50]In the light of what we have said, it is unnecessary for us to go through the various points set out in detail in Miss La Vertue's papers which Miss La Vertue says she would have liked to have cross-examined Mrs Warwick about. Much of what she says relates to the history of the grievance procedure to which we will refer shortly.[51]One point which might be thought to have had some significance is that Mrs Warwick might, so it is said, be thought by implication to have been stating in her witness statement that Miss La Vertue had taken the benefit of points, which had been earned and claimed in the period when her predecessor, Miss Ross, was dealing with the travel agents, and which points were left unused when Miss Ross left in 2001.[52]There is a brisk answer to that argument. If it be the case, contrary to our conclusion, that Miss La Vertue was in some way prevented from making it, she could have suffered no disadvantage; for she was not dismissed for using points accumulated by Miss Ross before she left in 2001 but for using points from which she obtained for herself benefits up to the value of £2,250 (it may be £2,225, our mathematics may have gone wrong, but the difference is immaterial), in 2003 and 2004. In paragraph 17 of their judgement, the Tribunal state clearly that the conduct which met with the sanction of dismissal was Miss La Vertue's obtaining the benefit of the points in respect of which she had received hotel vouchers in the sum of £2,250. The documents show that those points were used in 2003/2004; and the dismissal letter itself says:
"In total you have redeemed points to a value of £2,225. The first time you redeemed points was on 27 May 2003 when you redeemed points to a value of £600."
[53]If Miss La Vertue did not cross-examine on this matter the reason is very plain. She was not dismissed for any activities in relation to points in 2001. The grievance procedure evidence[54]Miss La Vertue's Notice of Appeal and affidavits demonstrate that she wished to persuade the Tribunal to consider the details of the grievance which she had brought against Mrs Warwick, earlier in 2004 and the investigation and outcome of her grievance, the result of which she was, perhaps understandably, not very happy with. The issue of that investigation was to be the subject of her further affidavit, as ordered at the Preliminary Hearing; but the affidavit refers only to harassment, in very brief terms.[55]The details of the grievance procedure and the investigation of the grievance were not of themselves central to the Tribunal's consideration of Miss La Vertue's claim. The Tribunal had to decide what was the reason for dismissal and, whether, given that the reason was misconduct, as the Tribunal found and as was manifestly the case, Ilex acted reasonably in dismissing for that reason, applying, as the Tribunal did, the well known tests in the case of Burchill v British Home Stores . Whether or not Miss La Vertue had merit in her grievance or believed she had merit, whether the result was right or wrong and whether it was properly investigated were not directly an issue. Familiarly, the Tribunal in such cases seeks, and in this case sought, to limit the extent to which such earlier matter is re-run before the Tribunal.[56]There was possible relevance of aspects of that episode. If the history of the grievance had been relevant to the dismissal, in the sense that it was taken into account by the decision makers, then that would have been a material point. If her involvement in the grievance meant that Mrs Warwick should not have been involved in the investigation process of the alleged misconduct or her evidence should not be believed, then that too may have been material.[57]The Tribunal plainly did have evidence before it about the grievance process. The passages which we have already referred to, at page 45 of our bundle, show that the Chairman questioned Mr Cox in some detail about why Mrs Warwick was the investigator. The next page shows that Mrs Warwick was asked questions by the Chairman in some detail about the substance of the grievance. Plainly, the Tribunal did not shut out altogether evidence about the grievance. But it is not in dispute that, at some stage, the Tribunal sought to restrict the detail of the evidence about the grievance; and in our judgment, that was an entirely permissible course for them to take. The Tribunal dealt with the grievance insofar, as its history was relevant, specifically in their judgment. They said, at paragraph 3, that the grievance was fully documented in what was before them and referred to in detail in witness statements and evidence before the Tribunal; there they were recording the extent to which they allowed the investigation of that matter to go. They went on to find that the process concluded following a full investigation in accordance with the grievance procedure and to record that the grievance was not upheld.[58]They returned to the grievance at paragraph 11. They found that Mr Brown and Mr Cox were not in any way swayed or affected by the previous grievance procedure; thus they can be seen to have addressed that potential relevance of the grievance. In paragraph 12, they said that they were satisfied, having heard Mrs Warwick's evidence, that she did nothing other than properly and professionally investigate the misconduct allegations; there they were saying that, in terms of credibility, and in terms of appropriateness, the points which were taken against Mrs Warwick failed. That was a wholly sufficient approach to the issue of the grievance procedure. There was no requirement, in terms of law or fairness, upon the Tribunal to deal with what was past history in any further detail. Medical evidence[59]Miss La Vertue, in the putative Amended Notice of Appeal, raises the issue of medical evidence which she sought but was not permitted to put into the Tribunal bundle. We have seen that evidence; it consists of a letter from Miss La Vertue's General Practitioner, dated 21 February 2005, setting out that he had seen her on 4 August. It says:
"She said that she was suffering from stress related to her work. I prescribed for her Tepmazepam for regulation of her sleep pattern."
We have seen a copy of the prescription and a letter from a counselling practice saying, in effect, that they were counselling Miss La Vertue for work stress between June and September 2004.[60]The Chairman's comment on that evidence is this:
"The Appellant produced a letter from her doctor confirming that she had been suffering from stress related to her work and confirming the medication prescribed for her. I ruled that I did not consider them directly relevant to the dismissal."
[61]In our judgment the Chairman was not in error of law in so ruling. There is no suggestion that this material was before either of the decision makers, nor could this material in any realistic sense have been argued as in any way likely to have made any difference to the outcome before the decision makers. It is not suggested that Miss La Vertue was off work, that she was suffering from a severe illness or that she was unable to deal properly with the disciplinary proceedings. Its relevance to the Tribunal's considerations was, so far as we can see, nil. Ground Five[62]Lastly, we turn to Ground Five of the putative Amended Notice of Appeal which we read into this judgment earlier. It is correct that the Tribunal did not deal with the point made that Miss La Vertue's predecessor took air miles points for her own benefit without any disciplinary sanction. It is straightforward, in our judgement, to appreciate why that was so.[63]Miss La Vertue's primary case at the disciplinary proceeding was that she had herself been given express permission by Mr Smol to act as she did. Ilex investigated that case and rejected it on the basis of information from Mr Smol. The Tribunal, as we have said earlier, found that that was a genuine and reasonable belief on their part. That occurred in 2004; and the misconduct for which Miss La Vertue was dismissed took place, for the reasons we have explained, in 2003 and 2004. Prima facie the fact that another employee had done the same in 2001 and, had got away with it, in a case of dishonesty on Miss La Vertue's part, involving a sum of in excess of £2,000, could have been of very little, if any, weight. It could only have gone to sanction; and it is almost unthinkable that it would have made any difference to the Tribunal's assessment as to whether the sanction of dismissal was inside or outside the range of reasonable responses.[64]But the employers did address the point; the dismissal letter sets out how they did so. It appears that Miss La Vertue raised the precedent point but was unable to state that Miss Ross had ever indicated to her that she, Miss Ross, was personally using the points. Thus, she was unable to state that there was a precedent. At a later stage, it appears that an email came into existence purporting to be from Miss Ross which appeared to suggest that Miss Ross had been taking the points personally. That appears, however, to have come about after the disciplinary hearing – or at least the first stage of the disciplinary hearing – which took place on 29 October because that email bears the date 1 November; and it is hardly surprising in the circumstances that it made very little difference, if any, if it was ever put before any of the disciplinary decision-makers, to the decision that they had to make.[65]In those circumstances the reasons why the Tribunal made no reference to the point are very clear. The Tribunal did not have to deal in their judgment with every point which was raised, only those points which were significant and important, one way or another, to the decision which they made. The decision that they had to make was one which required them to answer the questions which they set themselves after a fair hearing. They answered those questions by reaching findings of fact which are unimpeachable by a process which in our judgment was in no way unfair. Conclusion[66]For those reasons this appeal is dismissed.