Appeal No.UKEAT/0888/02/DA & UKEAT/0069/03/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 10 November 2004

Before
THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)
MR A E R MANNERS
MS G MILLS MBE

MISS M FRASER	APPELLANT

LONDON BOROUGH OF RICHMOND UPON THAMES	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MISS M FRASER
(the Appellant in Person)	
For the Respondent	MR ANDREW HILLIER QC
(of Counsel)
Instructed by:
London Borough of Richmond Upon Thames
Legal Services
Civic Centre
44 York Street
Twickenham
TW1 3BZ	

SUMMARY

Appeal on basis that the Chairman misconducted himself by inhibiting or preventing cross-examination by unrepresented Applicant of her alleged sexual harasser.  After consideration of all affidavits, witness statements, comments and notes, Applicant’s case not established.

THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)

1.	This is an appeal brought by Miss Fraser against the unanimous Decision of the Employment Tribunal at London South, in Reasons handed down to the parties on 2 July 2002, arising out of a hearing that took place on 25, 26, 27 and 28 February 2002, with a chambers discussion on 27 March.  The Chairman was Mr Houghton and there were two Lay Members, Mr Lowe and Mrs West.  

2.	A Notice of Appeal was put in by the Applicant, Miss Fraser, against the Decision, which was that her claim for breach of contract was dismissed, and her claims for sex discrimination and victimization were also dismissed.  So far as the sex discrimination claim is concerned, the issue was described in paragraph 2 of the Extended Reasons as follows:

“The issue for the Tribunal in relation to the Applicant's claim for unlawful sex discrimination is whether she was the victim of various acts of sexual harassment at the hands of the Respondent's Head of Legal Services, Mr Richard Mellor, on 21 December 2000 and on other unspecified dates.  The allegations in respect of which the Applicant [is] unable to provide any dates are that Mr MelIor “wriggled in his chair in a disgusting way”, “rubbed himself” against the Applicant and kept her late at the office.”

3.	The breach of contract claim related to a claim that the Respondent failed to provide her with duties specified in the job advertisement and description relevant to her post.  The victimization claim was on the basis that she was dismissed for having made an allegation of sexual harassment.  

4.	The Notice of Appeal, as we have indicated, was put in in time, and it contained various matters in addition to those which have, in the end, been the only matters before us.  Those other grounds have been either dismissed or withdrawn as a result of various hearings or orders of the Employment Appeal Tribunal, to which we need not refer.  Suffice it to say that, by an Order of the Employment Appeal Tribunal per Judge McMullen QC, on 18 September 2003, the only grounds remaining were what originally stood as 5(a) and 5(b) of the Notice of Appeal.  Some of the grounds had been dismissed at a preliminary hearing on 28 February 2003, while others were withdrawn or dismissed at the hearing in question before Judge McMullen on 18 September.

5.	Unfortunately, through what may well have been either misunderstandings or miscommunications, Miss Fraser did not, on the face of it, comply with the terms of the Order of that date by Judge McMullen, on the basis of which, alone, that limited Notice of Appeal, consisting of 5(a) and 5(b), was to go forward; and by an Order of 10 November 2003 her surviving Notice of Appeal, in relation to those two grounds, was struck out for non-compliance with that Order.  

6.	The Applicant did not make an application for review of that Order, but made an application instead to the Court of Appeal.  Her application before Peter Gibson LJ was adjourned by that learned Judge, it seems on the basis that the paperwork before him was unclear, for the matter to be investigated and put in order; and in the interim Judge McMullen took the view, of his own motion, on 30 April 2004, that, rather than the matter go back to the Court of Appeal, he was now satisfied, on the evidence placed before him by Miss Fraser which he had put together at the request of the Court of Appeal for the purposes of her appeal to the Court of Appeal, that the Order of 10 November 2003 should be reviewed, and an opportunity given, which in fact Miss Fraser naturally took, for late compliance with the Order of 18 September, reconstituting the appeal on grounds 5(a) and 5(b).  The Court of Appeal application has consequently become moot, and this appeal has gone forward, on the basis that the only Order against which there was any appeal to the Court of Appeal, namely that of 10 November 2003, as is clear from the Notice of Appeal to the Court of Appeal, which we have seen, no longer remained because it had been reviewed.
7.	In her written submissions, which we have read, and which were of very substantial length, Miss Fraser raised large numbers of other matters arising out of her quite patent unhappiness at both how she feels she was treated by the Respondent, and how she feels she was treated by the Employment Tribunal; and she has accepted, before us today, as she must, that the only grounds with which we are dealing are 5(a) and 5(b), which we will read, but submitting that the other matters which she has put forward needed to be considered in order for us to be able to understand the context of her appeal.  We have considered all those other matters.  But it will be necessary for us, having recited the two grounds which alone are before us, to summarize the issues which are not live in the appeal.

8.	The two grounds 5(a) and 5(b) interrelate, because they both refer to the alleged conduct of the Chairman, and both of them related to a very short period during the hearing at the Employment Tribunal when Mr Mellor, whom she alleged to have been the sexual harasser of her, was to be and was being cross-examined by her.  

9.	The Notice of Appeal reads as follows:

“In the circumstances the tribunal Chair conducted the proceedings in a manner which was so intimidating and inappropriate as to amount to bias, misconduct and misdirection in law:
a)	The appellant was unrepresented.  The appellant had no experience of trial or cross-examining witnesses.  The Chairman interrupted the applicant within a few minutes of her first attempt to cross-examine the respondent’s first witness the alleged sexual harasser and stated that the applicant was not allowed to ask leading-questions of this witness.  The Chairman stated that if the applicant did not learn how to cross-examine without asking leading questions then the Chairman would ignore a "substantial" amount of her case.  The Chairman called for a ten-minute break and told the applicant to learn how to do this in that time.  Whenever the appellant looked up at the Chairman he was not taking notes.  The appellant has since learnt that she should have been allowed to challenge the respondent’s evidence.
b)	A short whi1e later while the appellant was still trying to cross examine the alleged sexual harasser she interrupted the alleged sexual harasser and civilly asked him to answer the question asked as the person was not addressing the question posed by the appellant.  The Chairman said that if the applicant interrupted the witness again then he would throw out the case there and then.  There had no previous warning.  Because of the hostile and intimidating and what appeared to be calcu1ating conduct of the Chairman the appellant was so inhibited and distressed that she had to cease questioning the alleged sexual harasser, less then one third of his evidence had been challenged, in particular the alleged sexual harasser[’s] version of events concerning the alleged sexual harassment was not challenged: in particular the alleged sexual harasser claimed that his offensive genitalia movements may have been the result of using an air cushion for a painful medical condition he had.  No medical evidence was put [forward] to support this.  This was evidence of behaviour most women would find offensive when conducted in front of them when it should have been a private act.  This was evidence that the appellant would have relied upon to show how the situation caused her distress and how she acted in good faith when making a compliant of this behaviour along side the other incidences of the sexual harassment including the sexual harasser already being found guilty of “derogatory behaviour”.  By intimidating the appellant and not giving the appellant a fair opportunity to challenge the evidence of the sexual harasser a key witness justice was not seen to be done.”

10.	The following matters do not arise, and do not remain, if they ever were, in issue between the parties:

(1)	There was originally an appeal in respect of the dismissal of the claim for breach of contract.  That is not being pursued and indeed was dismissed, effectively, on withdrawal before Judge McMullen on 18 September 2003.  In any event, if the grounds as to the alleged conduct of the Chairman in 5(a) and 5(b) succeeded, and led to a remission, Miss Fraser effectively accepted before us today by not pursuing the matter when this was pointed out, that, even if the matter were remitted, there would be nothing in her alleged breach of contract claim, by virtue of the simple fact, as pointed out by the Tribunal in its Decision, that no loss flowed from the alleged breach of contract, even if it were established.  In paragraph 35, the Tribunal referred to the law in that regard:

“Damages are generally recoverable only for financial loss and in assessing damages for any breach of contract a court must proceed on the assumption that the party in breach would, had the breach not occurred, have terminated the contract in the manner most favourable to himself.  In relation to contracts of employment that usually means giving the employee contractual notice or if proper notice is not given, paying a sum by way of damages equivalent to the sum payable during the contractual notice period.”

In paragraph 40, by reference to that law, the Tribunal, quite apart from making findings against the Respondent so far as the facts are concerned, accepted Mr Hillier’s submission that damages would be recoverable only for financial loss flowing from any such breach, and that that would limit any damages to what was recoverable in lieu of contractual notice, and the contractual notice was paid.  Any issues, therefore, relating to contract, either by way of substantive appeal, or by way of general context so far as the possibility that they might be re-raised if the Appellant were successful in obtaining a remission, are plainly no longer of any relevance, if they ever were.

(2)	The Applicant has complained, in her written submissions, and briefly today, about the question of unfair dismissal.  She asserted that she would have liked to have made or raised a claim for unfair dismissal before the Chairman, and that that was brushed off by the Chairman.  The Chairman’s response in his comments, (made pursuant to the practice of this Employment Appeal Tribunal, under paragraph 11 of the Practice Direction, to obtain, wherever bias or procedural irregularity claims are made, an Affidavit from the Complainant, but comments also from the Chairman and the Members and the opposite party or parties), is that there was no application made, let alone refused, in relation to any claim for unfair dismissal.  He said as follows in his letter dated 14 January 2004:

“It was at no stage suggested that the Tribunal was being asked to consider a claim of unfair dismissal.  At a Review hearing in this case held on 8 January 2003 the Applicant elaborated on this allegation, suggesting that she had unsuccessfully sought at the main hearing to introduce a claim of unfair dismissal on a basis which would not require one year’s employment.  Neither I nor the industrial members have any note or recollection of such an application, let alone its refusal.  No such application was made.”

That was the basis of the case that the Applicant had made on a review application to the Employment Tribunal.  Before us today she has confirmed that she did not make any application to amend her Originating Application to seek a claim for unfair dismissal, although she asserted that her Originating Application did contain such a claim, such that it was part of her complaint against the Chairman that he did not consider the making of such a claim, albeit she did not specifically make any application.  It is clear from her Originating Application, which is a very well drafted and specific document, that she made no claim for unfair dismissal.  In the IT1, dated 20 March 2001, the claims were simply for breach of contract and sex discrimination, the sex discrimination being as to sexual harassment and victimization.  Her recollection is consequently faulty as to the inclusion of any claim for unfair dismissal in the Originating Application, and we are satisfied that it is not right to suggest that she made any application in regard to it, and that the Chairman is correct in this regard.  In those circumstances, again were this matter to go back by way of remission, on the basis of grounds 5(a) and 5(b), no question of unfair dismissal would arise for consideration by any fresh Tribunal.

(3)	In the course of her submissions to us today, the Applicant has made considerable references to other matters, not simply by reference to her allegation for breach of contract, but also her case that she does not believe that the Respondent operated the procedures correctly – either the grievance procedure or what she submits to be the separate sexual harassment procedure – and she certainly made, or would make, a case, which she plainly made before the Tribunal, that there was a case of victimization by reference to her dismissal.  Once again, it is clear to us that this appeal is limited to 5(a) and 5(b).  If the position were that we were satisfied that the entirety of the hearing were flawed, then it might be that all matters would be remitted to the Employment Tribunal, save for the breach of contract claim (or any reference to unfair dismissal), for the reasons we have indicated, for re-hearing.  If, on the other hand, her success were only in respect of the limited aspect of her case with regard to alleged inhibition in relation to cross-examination of Mr Mellor, as a result of conduct by the Chairman, then it is likely that the only matter that would arise for remission would be the issue of sexual harassment, in relation to which the evidence of the alleged sexual harasser would have been crucial, and indeed would stand alone against the word of the Applicant.

(4)	In the course of her submissions in writing, and again as briefly repeated today, shementioned that she would have liked to have made a complaint about delay by the Chairman in producing the submissions because, in the course of her research, she has come across the reported Decision of Kwamin v Abbey National plc [2004] ICR 841.  This Tribunal Decision was produced by the Chairman within just over four months of the last date of hearing, there being a chambers discussion as we have indicated, and that would, therefore, have been later than the period considered appropriate by this Appeal Tribunal, as discussed in Kwamin.  But, as we made plain in Kwamin, delay itself would not be ground for challenge to a Decision – there needs to be very considerably more than that, and, in particular, errors alleged to result from the delay, required to be identified with particularity.  Suffice it to say that there has been no application for amendment of the Notice of Appeal by the Applicant today before us, way out of time, and indeed if there were, it would have required a very considerable particularization and effectively a case not presently made, even in embryo.  But in any event, such point and any such application were not pursued.

11.	We turn then to what is in issue, and before doing so we should identify the basis of our approach.  In Facey v Midas Retail Security Ltd and another [2001] ICR 287, Lindsay P laid down guidance as to how, procedurally, an Appeal Tribunal would set about deciding this kind of case and these kinds of allegations of procedural irregularity in the conduct of the hearing below by, effectively in this case, a Chairman; and paragraph 11 of our Practice Direction is very much modelled upon the guidance which was there given by Lindsay P.  In general terms, that approach has been approved in Stansbury v Datapulse plc and another [2004] ICR 523.  

12.	In a very helpful recent Decision of the Appeal Tribunal, given by Rimer J, Shodeke v Hill, decided on 6 May 2004, UKEAT/0394/00, Rimer J addressed the approach of this Tribunal when there has been no cross-examination of any witnesses before it, such as has not occurred here.  In those circumstances, the guidance given by Rimer J, with which we agree, is that the Appeal Tribunal must endeavour to do its best on the basis of the documents before it.  It is in any event, of course, impossible for any Appeal Tribunal to have cross-examination of the Chairman or Lay Members themselves, so the cross-examination would be bound to be limited to the parties who took part in the hearing.  None such has been sought in this case, nor has it taken place, and we agree that that was entirely sensible.  We must therefore decide this case, as Rimer J has said, on the basis that on the balance of probabilities, the complainant, here the Applicant, must prove her case, and if we are left, at the end of the day, uncertain as to whether she has proved her case then she has failed to satisfy the onus of proof.  

13.	Mr Hillier QC, who has appeared before us on behalf of the Respondent, as he appeared below, has submitted to us briefly, in the course of his submissions, that the allegations against the Chairman below are “very serious”, as he put it, and we are conscious of that; but that does not prevent us, nor would prevent us, from making a finding that the Chairman, on this occasion fell, if he did, outside what is to be expected of a Chairman of the Tribunal, and was neither overruled, inhibited, or criticized by his fellow Members who would have, on any basis, being acquiescing in the conduct alleged by the Applicant.  Of course we inevitably take into account the Respondent’s submissions, not only that the conduct alleged did not occur but, that if it had, Lay Members of an Employment Tribunal are there to represent the public and are most unlikely to allow aberrant conduct by the Chairman, with which they were not associated, to occur.  But nonetheless we must, and do, adjudicate on the evidence before us, and if criticism falls to be made, either of the conduct of the Chairman or of the acquiescence of the Lay Members in that conduct, then it will and must be made.
14.	We turn then to what we do have before us.  We have the Affidavit of the Applicant which, of course, does rather more than deal with grounds 5(a) and 5(b), to which we have referred, for the reasons we have explained that she had wished fully to set out what she sees to be the context, and also would wish to have made other complaints, other than those which are alone before us.  

15.	She has put before us a document, which is signed by a gentleman – a Trade Union Official – who gave evidence on her behalf at the Employment Tribunal, a Mr Rothery.  That document was in the form of an Affidavit, affirmed by Mr Rothery before solicitors.  It is plain from the document that it was prepared by the Applicant.  The first seven paragraphs ask Mr Rothery to confirm matters which are taken from his earlier Witness Statements, given at the Employment Tribunal, and then in the following paragraphs further statements are set out, which are said to be taken from other statements he had made for the purposes of various hearings below.  All those were plainly put before Mr Rothery on the basis that he was simply being asked to reconfirm what he had previously said.  There are then five paragraphs, paragraphs 16-20, which are again set out under the same rubric “Please confirm the following statements”, and of those, paragraphs 18 and 19 relate to the grounds of appeal now before us.  

16.	So far as paragraph 5(b) is concerned, the relevant paragraph of the Affidavit put before Mr Rothery is paragraph 19 as follows:

“Please confirm the following statements...That the Chairman said that if I interrupted Mr Mellor then the case would be dismissed there and then.  Because I was so concerned at the hostility of the Chairman and had had to cut short my cross-examination of Mr Mellor because of his hostility I asked you what you thought I should do.  You suggested that I start taking a note and to keep a record of all the comments made by the Chairman and to write down what was happening.”

No such note was taken or kept by the Applicant or, if it was, it has not been produced before us.  
17.	Those 20 paragraphs which Mr Rothery was asked to confirm have simply been signed at the bottom by Mr Rothery, and affirmed with a date.  They are plainly, to use the relevant vernacular in the context of this appeal, entirely leading statements to which Mr Rothery, by appending his name, has presumably appended his agreement.  They are not, as is clear so far as the central paragraphs are concerned which related to the grounds of appeal before us, in his own words.

18.	Set against the Appellant and the Affidavit of Mr Rothery, there is a Witness Statement from Miss Sally Lister, a solicitor of the Department for Education and Skills, who was, at the material time, employed by the Respondent as Principal Solicitor, Litigation Services.  She has attached to that Witness Statement, in which she takes issue with the contents of 5(a) and 5(b), her notes, in handwriting and then typed up, of the cross-examination of Mr Mellor by the Applicant.  We found that note impressive.  Clearly we were not present at the hearing and cannot be in any position to confirm its accuracy, although its accuracy is confirmed both by Miss Lister and Mr Hillier QC, but it reads clearly and concisely; it seems plainly to be a good not of what was being said by way of question and answer, and nothing that the Applicant has said before us has in any way caused us to doubt the accuracy of the note.  Indeed in parts the Applicant herself has relied on the note, for example to point out that there is a reference, in the course of the note, to unfair dismissal, although in fact one unhelpful to her earlier point, because it recorded her as saying, contrary to the position she took on her application for review to the Employment Tribunal, that she was not claiming unfair dismissal.

19.	There is an issue as to how long the cross-examination of Mr Mellor took before the Employment Tribunal.  Miss Lister’s recollection is that the evidence of Mr Mellor took most of a day.  It is plain that his examination-in-chief took some time, because it is common ground that his evidence was read out orally, albeit having been put in in a Witness Statement.  Looking at the evidence of the Applicant, and the evidence of Miss Lister by reference to her note itself, which is plainly not and cannot be a verbatim note, and the recollections of the Lay Members to which we have turned, it seems to us that the probability is that the cross-examination of Mr Mellor took between an hour and a half and two hours, which is more or less what the Applicant herself recalls.

20.	In addition, there has been a letter supplied to us, signed by Mr Hillier QC, as to his own recollection, and that too takes issue with the contents of grounds 5(a) and 5(b) of the Notice of Appeal. There are then the comments, first by letter and then by further supplementation, of the Chairman, and there are two sets of comments by the Lay Members, Mr Lowe and Mrs West, to which we will refer.

21.	That is the information that has been before us, on the basis of which we are required to make the Decision in the context of the guidance given by Rimer J, with which we agree.  We are entirely satisfied that there is nothing to support the case by Miss Fraser put forward in ground 5(b) of her Notice of Appeal and/or that part of ground 5(a) which effectively foreshadows what she says in 5(b).  It is, in our judgment, having read the Lay Members comments to which we will refer, quite plainly the case that the Chairman at all times was doing his best to fulfil his function as being in control of case management of the case before him.  We have had the benefit of Miss Fraser’s submissions to us today, and courteous and pleasant though she plainly is, she is a very determined and voluble lady; and we suspect, wound up as she has plainly at all material times been by what she sees to be her mistreatment by the Respondent, and representing herself in a such situation when, although she has some knowledge of law (having completed the CPE course), she had not previously been in court, never mind appeared as an advocate, she will not, we are quite sure, have been an easy advocate for a Tribunal to control.  And control was necessary where there was a litigant in person, the alleged harassee, cross-examining a witness by whom she alleged she had been harassed.

22.	It is plain from Miss Lister’s notes, and from the comments of the Lay Members, that the Chairman will have intervened and did intervene, from time to time, particularly in order to control what effectively Miss Fraser more or less accepted before us she might well have done, namely injected into her questions her submissions.  Indeed it is very difficult for a litigant in person, even one not as wound up as Miss Fraser is bound to have been, not to expatiate, in the course of a question, as to what her own belief or her own case is; and we note, for example, at the bottom of the first page of Miss Lister’s notes, as typewritten, the note of the interjection by the Chairman that it was “not an opportunity to make submissions”.

23.	The Lay Members both give their recollection of the case and the way that Mr Houghton, the Chairman, handled it.  So far as Mr Lowe is concerned, he said as follows:

“In my view this is a totally distorted assessment of the Chairman’s conduct and his attempts to bring order to the proceedings….”

That is by reference to the allegation by the Applicant that she was prevented from cross-examining Mr Mellor, and that there was hostile and intimidating conduct by the Chairman.

“There were occasions during Miss Fraser’s cross-examination of Mr Mellor when it was necessary for her to be reminded (as frequently happens with applicants representing themselves) of the distinction to be made between questions and submissions.  It was also necessary on occasion that he was asked to move on once a particular point had been established.
My notes indicate that cross-examination took place over a period of two hours.  Although many of the questions asked appeared to be peripheral to the main issue, I do not recall any pressure being brought to bear on Miss Fraser to cut her examination short.  She was certainly not told that she could not cross-examine on any relevant matter or that any part of her case would be ignored if she persisted in doing so.
I cannot comment on what the Appellant might have  observed when she ‘looked up at the Chairman’ but my impression from sitting at his side was that he was making extensive notes.”

It is clear to us having seen the Decision, which is a very full one, that the Chairman must have had a full note of evidence from which he prepared the Reasons for his judgment.  Mr Lowe continued:

“So far as the matters referred to in paragraph (b) are concerned, I cannot comment other than to say that the way in which the Appellant now puts the point differs markedly from the language used in her original complaint…
In summary it remains my firm belief that despite the, at times, belligerent disrespectful behaviour of the Applicant, the hearing was conducted fairly and without bias or intimidation of any kind.”

24.	The letter from Mrs West included the following:

“The chairman did advise Miss Fraser politely to let the witness finish answering her questions before going onto the next question.  How can the Applicant say that in Notice of Appeal a) “should have been allowed to challenge”, when in b) saying she was cross-examining and complains about the chairman telling her not to interrupt.
The chairman made no such remark as “throw out the case” but had to frequently ask Miss Fraser to act with restraint when dealing with the witness.
I also have notes on the applicant questioning Mr Mellor on sexual harassment and she had every opportunity to do so.”

She also said that the Chairman made no such remark as to “ignore a substantial amount of her case” and that he took notes throughout the court proceedings, as did the Members, although he obviously paused at times to speak and advise, as was the Chairman’s role.

25.	The notes of Miss Lister plainly show that the Applicant did ask substantial questions of Mr Mellor, and we are satisfied that there is no support for the case by the Applicant as to the matters she has put forward with regard to the alleged behaviour of the Chairman, as described in 5(b) of her Notice of Appeal, or that at any time the Chairman threatened to ignore a substantial amount of her case.  

26.	It is quite plain that the Applicant will have been distressed and irritated by the unanimous finding of the Employment Tribunal, as set out by the Chairman.  The facts are very fully set out, and in paragraph 42 the Tribunal said this:

“For the reasons set out in Mr Hillier's written and oral submissions, the Tribunal unanimously finds that the Applicant has failed to establish facts from which we could conclude in the absence of an explanation that the Respondent committed the acts of sex discrimination alleged.  We consider the Applicant's evidence in relation to the various allegations she makes to be vague, inconsistent and contradictory.  We accept Mr Hillier's submission that the Applicant's case in .this respect was advanced on an entirely confused footing.  The Applicant swung, for example, between saying it was for the Respondent to realise that she was complaining of sexual harassment at the level 2 grievance and complaining that Ms Cole had conveyed her feelings of discomfort with Mr Mellor (which Ms Cole had interpreted as amounting to sexual harassment allegations) to the grievance panel.”

Then the Tribunal gives a number of other examples of its findings with regard to the Applicant’s inconsistency, and continues:

“The content of and manner in which the Applicant gave her evidence and conducted the case leads us to accept Mr Hillier's submission that the Applicant's original complaint, which had nothing to do with sexual harassment or unlawful discrimination, grew in the Applicant’s mind and became embellished to the point of becoming fanciful.”  

The Tribunal had already made findings earlier in the Decision as to the late stage at which the complaints of sexual harassment arose, and returns to this in its Conclusions.  The Tribunal concludes in the last sentence of paragraph 42:

“…it is clear from the Applicant's perception of the obligations placed upon an employer faced with such complaints that the Applicant believed that through raising the stakes by throwing in an allegation of sexual harassment at the late stage that she did would trigger the operation of a whole set of different procedures.”

27.	In paragraph 43, the Tribunal said as follows:

“A further feature of the Applicant's case highlighted by Mr Hillier, and which we also accept, is the Applicant's capacity to misinterpret innocuous events and statements and to harbour unjustifiable suspicions.”

And then examples are given of that by the Tribunal in the light of its findings.  Paragraph 43 ends as follows:

“For all the above reasons we have concluded that we should treat the Applicant's evidence with great caution.  Where it conflicts with the evidence given to the Tribunal by the witnesses called on behalf of the Respondent, which we generally found to be cogent and convincing, we reject the Applicant's account.”

28.	In paragraph 44, the Tribunal went on to reject the specific allegation of misbehaviour against Mr Mellor in the following terms:

“Quite apart from the fact that they are wholly lacking in particulars and the Applicant’s evidence to us in relation to them was wholly unconvincing, we consider that the manner in which they were raised by the Applicant demonstrate that they were advanced as part of her graduated approach to obtaining the outcome she desired.  We find that no such incidents occurred.”

29.	In paragraph 45, the Tribunal deals specifically with the alleged incident on 21 December, which was the only date which was identified by the Applicant in relation to alleged misconduct by Mr Mellor.  The Tribunal said as follows:

“That an act of sexual harassment occurred was not raised by the Applicant on her grievance form although on her own case it was never suggested that she could not do so.  It was first raised on 1 February 2001.  We find the Applicant’s account of that incident implausible and unreliable.  We reject the Applicant's account of what occurred. We consider that when the allegation was raised it was done in an attempt to raise the stakes in circumstances in which the Respondent was dealing with the Applicant's grievance in a constructive and professional way, but which was leading to a conclusion which was unwelcome to the Applicant.”  

The Tribunal then makes findings as to what occurred on 21 December, and dismisses the unlawful sex discrimination in paragraph 56.

30.	We rather suspect that the Applicant’s inevitable irritation as a result of those findings has translated itself into the kind of retrospective criticism of the Chairman which is contained in paragraph 5(b) of the Notice of Appeal.  It is right, certainly, that the Tribunal unanimously does in the result conclude, in the terms set out, that it firmly rejects the Applicant’s case.  We are not persuaded, on the balance of probabilities, that the Chairman said, foreshadowing that result, in the course of her cross-examination of Mr Mellor, anything to similar effect.  There is no evidence supporting the Applicant and indeed all the evidence is to the contrary, apart from the confirmatory Affidavit of Mr Rothery, to the nature of which which we have referred, and as to which we note, as Mr Hillier has asked us to do, the absence of any record such as Mr Rothery is suggested to have advised there should be.

31.	It is also apparent from the findings of the Tribunal that the Tribunal concluded that in some respects there had been possibly bona fide misunderstanding by the Applicant as to what had occurred and/or a self-persuasion, by way of embellishment, of what had previously occurred, or she believed to have occurred.  That too, if the Tribunal be right, may be an indicator as to the reasons why the Applicant has now put forward the case she has before us today.  Mr Hillier pointed out that before us she was quite clear that she had made an application for unfair dismissal in her Originating Application, when in fact, on analysis, she plainly did not.  In our judgment the Applicant does not satisfy the burden upon her.

32.	We turn then to the balance of ground 5(a) of the Notice of Appeal.  In essence that is her complaint that she was told by the Chairman, early in the cross-examination of Mr Mellor, indeed within a few minutes of her first attempt to cross-examine him as she put it, that she was not allowed to ask leading questions of the witness.

33.	That, if said, was plainly incorrect.  It is well known that leading questions are not permitted of one’s own witness, not only because that would contravene ordinary practice, but also because it gains the questioner nothing, because it destroys the credibility of the answer if it has been formulated in the words of the questioner; and it is both discouraged and ordinarily prevented in chief.  We have no doubt that the Chairman may have indicated, as one would in terms of assisting an unrepresented litigant so far as the procedures are concerned, that when questioning witnesses in chief, leading questions are inappropriate.  But it is here suggested is that leading questions were prevented, by the Chairman’s direction, of a witness whom the Applicant was cross-examining, or was effectively just starting to cross-examine, namely her alleged harasser, Mr Mellor.  

34.	We preface our consideration of this point by indicating that it must plainly have been a stressful occasion for them both.  We are not of course specifically considering the position of  Mr Mellor here at all, though he was undoubtedly also in a stressful situation, but it would be stressful for a complainant making these kind of allegations, whether they were true or not, at any time, and certainly in the context of a court case where she had been left in a position, whether of her own decision or not it is not known to us, of being her own advocate, and therefore having to do the cross-examination, as well as making her case in public before a Tribunal, and, as we have already indicated, it is plain that, quite apart from that, Miss Fraser is a voluble person.  

35.	The Chairman, as is clear from what we have already said, would have been under an obligation to assist, in the interests of the Applicant, but also in the interests of the witness and in the interests of ensuring a fair procedure from all points of view.  What he would not be permitted to do is to make an incorrect statement, namely that an advocate cross-examining is not permitted to ask leading questions in cross-examination; and in his letter, to which we have earlier reference, Mr Houghton says as follows:

“It appears to be suggested that I criticised the Appellant for asking leading questions during her cross-examination of Respondent’s witnesses and threatened to dismiss her case if she continued doing so.  That did not occur, and is for obvious reasons an extremely unlikely thing form me to say.  The Appellant examined in chief only one witness, Mr Rothery.”

36.	It is important to consider, particularly now that we have dismissed ground 5(b), for which there is no support in the evidence at all, what it is that the Applicant says about this misconduct by the Chairman, and we return to ground 5(a) for that purpose.  She asserts:

“The Chairman interrupted the applicant within a few minutes of her first attempt to cross-examine the respondent’s first witness the alleged sexual harasser and stated that the applicant was not allowed to ask leading-questions of this witness.  The Chairman stated that if the applicant did not learn how to cross-examine without asking leading questions then the Chairman would ignore a "substantial" amount of her case.”

We have already indicated that we have not accepted the suggestion in the latter part of that sentence.  

37.	The consequence of that prohibition of leading questions, if it occurred, would presumably be that the Applicant would be inhibited in her cross-examination, and would not have asked any leading questions, having been directed not to do so.  It is quite plain from looking at clause 5(b) that it is not suggested to have been the alleged inhibition upon her from asking leading questions which allegedly led her to cease cross-examining.  What she said led her to draw her cross-examination to a shorter end than would otherwise have been the case is what is said in clause 5(b) about the hostile and intimidating and calculating conduct of the Chairman, and the words which he is alleged to have said, which we have found not proved, that he would throw out the case there and then if she interrupted the witness. The complaint is, or presumably is, in those circumstances, that his prevention of leading questions was an inhibition upon her cross-examination, not that it led to her bringing her cross-examination to an end.

38.	It is quite clear from Miss Lister’s note of the evidence, to which we have referred, that,insofar as the statement was made, as the Applicant asserts, at the outset of the cross-examination of Mr Mellor, there is no note of anything in that regard in what we have accepted to be a good contemporaneous note.  That of course can in no way be determinative, because it may be that, accidentally or even intentionally, some such exchange between the Chairman and the Applicant was omitted from the note.  But what we can be quite clear about is that the cross-examination did continue for some two hours, as indeed the Applicant has accepted herself, and as we accept from the rest of the evidence, and more or less in accord with the note of Miss Lister.  It is certainly the case that there was, in the course of that cross-examination, only very little dealing with the incident of 21 December.  That is towards the end of the note of cross-examination, when she put the case as to there having been some kind of sexual approach, and Mr Mellor firmly denied anything having happened, either in the room or in the adjacent room.  The Applicant was, by that time, drawing towards the end of the cross-examination, and there may have been many reasons why she did not expand further on her case in cross-examination.  One of them may be reflected in the conclusion to which the Tribunal itself came, both by reference to the case as she put it and in particular the evidence which she herself gave, which they found unreliable and unparticularised: it may be that there was no further particularization of a case in relation to 21 December that even an experienced advocate would have put.

39.	But, as we have indicated, it is not suggested that she simply stopped cross-examining as a result of the alleged prohibition of leading questions.  The case is that she was inhibited in her cross-examination because she was unable to ask leading questions as a result of the direction of the Chairman.  So far as that is concerned, the note of Miss Lister is the proof of the pudding against the Applicant, because she plainly did ask, as was perfectly appropriate and proper, many leading questions.  The Applicant has inevitably and understandably commented that it may be that some of the questions and answers are some kind of amalgam of something that was said by her and something that was said by Mr Mellor, and of course that may be the case on some occasions, but, having looked in detail at the questions and answers we are satisfied that the notes, the substantial accuracy of which we have accepted, are a substantial record of what on any basis was a series of leading questions, perfectly properly asked of the witness by the Applicant. 

40.	Miss Lister’s note, therefore, is not at all helpful to the Applicant, and, of course, the Chairman himself, Mr Hillier, Miss Lister, and Mr Lowe all are ranged on the other side.  Mr Rothery’s document, to which we have referred, is not greatly helpful, for the reason that it itself consists entirely of leading questions with his name at the bottom and, if anything, reflects the absence of any kind of corroboration which there so easily might have been, if something occurred which caused the Applicant to be inhibited in her cross-examination.

41.	The inevitable bull point for the Applicant, in what is otherwise an unhelpful tide of evidence from her point of view, is the balance, to which we have not yet referred, of the statement by the Lay Member, Mrs West who, it is to be recalled, sent a letter in which she defended both the Chairman and herself and the other Lay Member from any suggestion that there had been any hostility, interruption or inappropriate conduct.  The letter commenced as follows:

“The chairman appropriately during the case guided the unrepresented applicant in Court Procedure, and, with the knowledge that she had a post-graduate diploma in law (Common Profession Exam), had to make sure of equality on both sides throughout the case.”

She then continues:

“The chairman explained that leading questions were inappropriate and advised the applicant on the correct procedure on asking questions in cross-examination.”

The Applicant, understandably, draws support from that statement for her proposition that she was told by the Chairman, when she was cross-examining Mr Mellor, that leading questions were inappropriate.  
42.	Mr Hillier submits that that is a general summary by Mrs West, and that it is part of the explanation given by Mrs West that the Chairman advised as was necessary, as she has said in the first part of the letter, to assist the unrepresented Applicant in court procedure, viz as to “leading questions being inappropriate” (in relation to evidence-in-chief), and as to “correct procedure on asking questions on cross-examination”, being a reference to the interruptions which undoubtedly the Chairman did make in the course of the Applicant’s cross-examination, such as where she was straying into the making of submissions rather than the asking of questions or, for example, in repetition where it was not being of assistance.

43.	We are left to decide whether that statement by Mrs West does indeed support the Applicant and tip the balance, on the balance of probabilities, against the statement of Mr Houghton, who is of course an experienced Chairman, and who as both Chairman and a lawyer would know perfectly well, what all law students who learn procedure are taught, that of course leading questions are appropriate and necessary in cross-examination, or not.

44.	Mr Hillier has pointed to the fact that this comment was supplied to the Chairman for any further comment on his part, and he wrote, by letter dated 18 August 2004 to the Employment Appeal Tribunal, as follows:

“I have been invited to comment on the Appellant’s amended grounds of appeal.
After considering them, the written comments which I made on the original grounds in my letter to you of 14 January 2003, and the members’ comments (which I understand have been sent to you), I have no further observations.”

Mr Hillier submits that he plainly did not consider the Members’ comments as contradicting his own, because otherwise, Mr Hillier submits, he would have said “I disagree with Mrs West’s suggestion that I explained that leading questions were inappropriate”, if he read that as a suggestion that he so explained in relation to cross-examination.
45.	The Chairman and the Members in this regard, as we have indicated, were plain that, in relation to evidence that they heard over the period of four days, this Applicant had, as we re-quote paragraph 43:

“… [a] capacity to misinterpret innocuous events and statements and to harbour unjustifiable suspicions.”

If that was the unanimous finding of this Tribunal, nothing is more likely to be the case that, in a particularly stressful situation such as we have described, the Applicant should have misunderstood what was being said by way of guidance to her as to how to cross-examine and, in particular, case management directions as to how not to cross-examine, in the way indicated.  

46.	But as we have earlier indicated, the proof of the pudding is in the fact that, whatever was precisely said by the Chairman, she did not stop asking leading questions, was not inhibited in her cross-examination by any such direction; even if something similar to it was made, even if she understood it in that regard, it did not stop her.

47.	We are satisfied that the Applicant has not proved her case that there was misconduct by the Chairman, acquiesced in by the Members, as she has asserted in paragraph 5(a).  We are not satisfied that anything that was said by the Chairman led to any injustice or particular irregularity.  We conclude, applying the test in Shodeke, that the Applicant has failed to establish her case, and consequently we dismiss this appeal.