United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS J COLLIER (Of Counsel) Messrs Warner Goodman & Streat Solicitors Portland Chambers 66 West Street Fareham Hants PO16 OJR
For the Respondent	NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENT


 


MR JUSTICE KIRKWOOD: This is an appeal on an interlocutory point by the Respondent to an Originating Application, which is being heard by an Industrial Tribunal at Southampton. It has already occupied one if not two days of the Industrial Tribunal's list and stands adjourned to 9 July.

The appeal relates to the decision of the Tribunal to limit cross-examination of the Applicant on one aspect of the case. In her Originating Application Mrs Gulson makes complaint of unfair dismissal and sex discrimination.

The background story as put by her in her application is this: she began work with the Respondent company, Zurich Life Assurance Company Limited in May 1989 as a Claims Technician. She was promoted from that post to that of Senior Group Claims Underwriter, with a basic working week of 35 hours, to be performed on a flexible basis so that she finished work in fact no later than 5.30 p.m.

Early in 1996 Mrs Gulson became pregnant and she told the Respondent company that her maternity leave would commence on 14 June 1996. She told them that she intended to return to work. In early March 1996 the company announced a change to the working hours arrangement for a number of employees, including Mrs Gulson. The employees were required to work the same number of hours a week but on a rota basis, covering the period from 8.00 a.m. to 6.00 p.m. and Saturday mornings. That new arrangement was to be introduced in June.

The Applicant, Mrs Gulson, immediately wrote to the company telling them that she would be unable to comply with the new working arrangements when she returned to work after her maternity leave, due to her child-care commitments. She said that she could not work beyond 5.00 p.m. each day: she would have to leave at that time to collect her baby by 6.00 p.m. and she refused to sign a set of terms and conditions about the new working hours. The company then indicated to her in a memorandum that she would not be forced to work the extended hours when she returned from maternity leave.

Mrs Gulson went back to work on 28 October 1996. A few days later on 8 November she was told that she would have to conform to the new working arrangements in future. She would not do so, so it was suggested that she went home. She remained at home until 18 December whilst discussion continued between her solicitor on her behalf and the company over whether she would return to work and on what basis. She then offered to work from 8.00 a.m. to 5.25 p.m. on Mondays to Fridays and to work one Saturday a month, but on 18th December the company dismissed her.

Part of the Applicant's case before the Industrial Tribunal was in accordance with Section 1(b) of the Sex Discrimination Act 1975, that the condition imposed by the Respondent company as to hours of work was to her detriment, because she could not comply with it. The Respondent company's case on that seems to be that the Applicant could comply because she could employ a full-time nanny, whether living in or living out.

It appears to us that the Applicant had made some child-minding arrangement to cover the period when she returned to work on 28 October 1996, but those arrangements did not have the flexibility that the new hours of work called for. So it was the Respondent company's case that a full-time nanny would be needed.

Both the Applicant's husband and the Applicant had given oral evidence to the Industrial Tribunal. The Tribunal heard from them that their joint gross income was of the order of £35,000 a year. The Applicant's net income, disregarding pension and life cover, was £1,154 a month. The Applicant was contributing a little more than half her net monthly income to the family budget. She estimated that the cost of a full-time nanny would be £500. That would be beyond the scope of the family's income. It would in any event be nearly half her net monthly salary. So much we find in the Extended Reasons given by the Tribunal on this point. In addition we have been told by Ms Collier that the Tribunal had been told by the Applicant, or by her husband, although that does not appear in the Extended Reasons, that at the end of each month the couple were overdrawn, that is to say their outgoings had exceeded their income.

Miss Collier wanted to cross-examine the Applicant about the family outgoings. The avowed object of that was to try to demonstrate that by spending less here and saving there, this couple could stretch its income so as to pay for a full-time nanny. If that could be shown, then the argument would run that the Applicant had failed to show that she could not comply with the hours of work requirement. The monthly cost, as apparently researched by the Respondent company, is that if this couple were to be expected to have imposed upon them a live-in nanny, that would cost about £600 a month plus the nanny's bed and board. A living-out nanny would cost about £800 a month. Those figures were put to us by Ms Collier today. They may or may not have been before the Industrial Tribunal, because the Industrial Tribunal referred only indirectly to certain figures being put in front of them, but in any event they considerably exceed the figure of £500 that had been in the forefront of the mind of the Industrial Tribunal in giving its extended reasons.

The Industrial Tribunal dealt with the application to cross-examine about outgoings in this way:

"4 After retiring to consider the application, the Tribunal were unanimous in finding that the applicant's inability to comply with the respondent's changed hours requirements, was not confined to the question of whether or not she could afford a nanny. There were many other points for consideration which were relevant to the issues between the parties.

5 The applicant had already given testimony as to the joint earnings of her husband and herself and that the sum of £500 as payment for care of the child would be beyond the scope of their stated income. The range of weekly charges for employment of a nanny were already produced to the Tribunal.

6 The applicant's net monthly income, disregarding pensions and life cover, was £1154 a month. The probable maximum cost of hire of a nanny would be not far short of one half of this sum. The evidence was that at the relevant time, Mrs Gulson was contributing a little more than half to the family net annual income.

7 We considered that the matter had been sufficiently debated, and there was not the necessity for the Tribunal to go into the sort of financial analysis which is appropriate on division of assets in the course of divorce proceedings.

8 We accordingly declined to allow Counsel to question the applicant further about her outgoings."

The powers of the Industrial Tribunal as to evidence are found in The Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 at Schedule 1 paragraphs 9(1) and (2):

"(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."

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 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.

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.

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.

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 Miss Collier begins to persuade us that there was in any sense a wrong exercise of that discretion and this appeal is dismissed.