England and Wales Court of Appeal (Civil Division) Decisions

1. Ms Coyne was employed by the Home Office as an instructional officer at Holloway Prison. She had been appointed as a probationer in 1989, but had neither had the expected induction course nor been allowed subsequently to attend a day-release Certificate in Education course. Her line manager was Mr Julian, a governor grade 4, but from day to day she was in the charge of a seconded employee of the local education authority, Mr Brown. She was ultimately dismissed. She was awarded compensation for unfair dismissal by a Civil Service Appeal Board. She also brought Industrial Tribunal proceedings against the Home Office for unfair dismissal (which she withdrew), racial victimisation and sex discrimination.
2. In November 1996 after a very full hearing the complaint of racial victimisation was dismissed but the complaint of sex discrimination was upheld. Both sides appealed. Ms Coyne's appeal failed in circumstances which it not necessary to rehearse, and she seeks to take it no further. The Home Office's cross-appeal on the finding of sex discrimination was separately dismissed by the Employment Appeal Tribunal in April 1999, and the present appeal is brought by the Home Office, with the permission of Mummery LJ, against the dismissal by the Employment Appeal Tribunal of its cross-appeal.
3. The events material to the Home Office's further appeal can be distilled from the Industrial Tribunal's helpfully full and clear findings. By April 1990 three separate incidents had occurred, of which the third is central to the present case: another teacher, Mr Smith, who was seconded by the local authority, made two crudely indecent gestures to Ms Coyne, the second in response to her speaking to him about the first. Although Mr Smith offered Ms Coyne a prompt apology, which she accepted, Mr Brown was furious with him for doing so. He regarded her complaints as the result of poor relationships with other members of staff which were Ms Coyne's own fault. In June 1990 he reported in this vein to Mr Julian, recommending that she be posted elsewhere but making no reference at all to the incident with Mr Smith.
4. The following month Ms Coyne made a formal complaint to the Home Office about, among other things, the aftermath of her having been sexually harassed by Mr Smith. She wrote:
"Sexual harassment by part-time English tutor [Mr Smith]. Mr Brown spoke to him. Later in my classroom he insinuated incidents with ... Ewan [Smith] were because I didn't get on with people."
This, the Industrial Tribunal held, was "clearly a written complaint of, and related to, sexual harassment". Nothing was done in response to it. Instead, in September, she was given the worst possible rating on her appraisal report. Mr Julian accompanied it with the remark that it was justified by her attitude towards students and staff and with further derogatory comments. The report was endorsed by the prison governor and by the Home Office's principal education officer. Nowhere in it is there any reference to her complaint about Mr Brown's reaction to the sexual harassment of her by Mr Smith.
5. Nothing was done to investigate the complaints made by Ms Coyne or to consider her answer to the adverse appraisal. An attempt by her union to discuss the issues with the prison governor was rebuffed. In November 1990 she was refused permission to attend a course on instructional techniques. Then in March 1991 she was told that Mr Brown felt unable to recommend in his coming staff report that she be confirmed in her post. The ground given was difficulty in relationships with students. Mr Julian adopted a memorandum from Mr Brown to this effect and the governor accordingly recommended termination of her appointment. At the end of May 1991 he passed on to the Home Office a memorandum from Mr Brown which made no reference to Ms Coyne's complaints but which sought her dismissal.
6. It was at this point that it was realised at the Home Office that Ms Coyne's complaints about the way she had been treated had been ignored. Her written complaint had by now been lost. Mr Jeffrey of personnel management recognised that the complaints were "in their way quite serious" and might have some bearing on her work appraisal. By now Ms Coyne was on sick leave with stress. The process of dismissal was put on hold while her complaints were finally looked into.
7. In an explicit attempt to achieve impartiality the Home Office's chief education officer, Mr Benson, was given the task. He reported, after investigating, that there had been a series of deficiencies in relation to induction, support and guidance, associated with poor work performance on Ms Coyne's part. As to her complaint about the way in which Mr Brown had handled her complaint of sexual harassment, however, Mr Benson recorded that Mr Brown had refuted it; and he wrote by way of conclusion:
"From my experience of Mr Brown ... I would judge that the behaviour which she alleges would be totally out of character."
The report was sent to senior management at Holloway but not acted upon. A final appraisal report following a further seven months' sick leave simply rehearsed the previous criticisms of Ms Coyne and recommended dismissal. Neither report was shown to Ms Coyne, and a follow-up letter from her union was ignored. It was not until December 1992, after further pressure from the union, that Ms Coyne was sent Mr Benson's report, accompanied by notice of dismissal.
8. The Industrial Tribunal found in Ms Coyne's favour essentially upon the basis of the Home Office's own documents and records, because they found Ms Coyne herself, at least by the time of the hearing, to be prone to dramatise and exaggerate. They were not prepared to infer that the inadequate training and support recorded in Mr Benson's report, nor therefore the adverse appraisals, were sex-based. The element of unfairness had been separately dealt with by the Appeal Board. What they did find, however, was that although in law the Home Office was neither directly nor vicariously responsible for acts of sexual discrimination by Mr Smith and (as I understand their decision) Mr Brown, the prolonged ignoring of her complaint followed by a biased adjudication on it amounted to discrimination on the ground of sex.
9. The key passage in the Industrial Tribunal's reasoning is the following:
"55. We accept the statements of policy which we have quoted as representing good practice. They certainly represent the practice and procedure to which the Applicant was entitled. She made a complaint of discrimination on the grounds of sex, constituted by an act of harassment. That was a detriment to which she was subjected by persons with whom she worked. She was then, in our view, subjected to a detriment by the way in which that complaint was treated.
(i) Firstly, the incident was treated as being her fault, not only by Mr. Brown but also by Mr. Julian.
(ii) The complaint was not dealt with promptly. There was a delay of nearly two years.
(iii) Although Mr. Benson's report was in many ways forthright and well-balanced in its criticism of what occurred at the Prison in relation to Miss Coyne, that comment cannot be made of the way in which he determined her complaint of sexual harassment. He stated simply:
"Both the EO and the then acting DEO firmly refute the allegation in paragraph 6. From my experience of Mr. brown (and from my brief acquaintance with Mr. Toman) I would judge that the behaviour which she alleges would be totally out of character".
56. In our view, that was a biased attitude to adopt. If he held that strong a personal view about Mr. Brown and Mr. Toman, he should have passed that aspect of the enquiry to someone else. It does not reflect an independent adjudication of her complaint.
57. In our judgment, the detriment to which Miss Coyne was subjected by the treatment given to her complaint of sexual harassment was directly related to, and part of the detriment constituted by the harassment. Applying the legal principles which we have set out earlier in these reasons, it appears to us that there is no material difference between a failure to prevent harassment occurring and a failure to deal properly with a complaint of sexual harassment, since the natural consequence of a failure to deal with a complaint will be a risk of continuation of the same conduct. The same considerations apply to a treatment of the complaint which proceeds on the basis that the fault must lie on the part of the victim rather than the person harassing the victim.
58. Therefore, for the reasons we have set out, we find the complaint of discrimination on the grounds of sex well-founded on the limited basis of the treatment of Ms Coyne's complaint of sexual harassment."
10. In view of the disagreement which unhappily divides this court, it may be helpful if I record my understanding of what the Industrial Tribunal were making in this passage of the facts that they had found. They were, it seems to me, deciding in paragraphs 55 and 56 that in four separate but cumulative respects the Home Office had subjected Ms Coyne to a detriment; in paragraph 57 that the detriment derived in each instance from the initial act of sexual harassment and was part of it; and that (sexual harassment being a self-evident form of direct sex discrimination) the succeeding detriments amounted likewise to discrimination on the ground of sex. It is the causal links found in paragraph 57 between Mr Smith's harassment of Ms Coyne and Mr Brown's adverse report on her, and between Mr Brown's report and Mr Julian's subsequent endorsement of her poor appraisal, which the other members of the court, as I understand it, consider not to be sustainable by the evidence set out in the tribunal's findings of fact.
11. In the Employment Appeal Tribunal, Morison J took the second sentence of paragraph 57 to be derived from the decision in Burton v De Vere Hotels [1997 ICR 1], to which the Industrial Tribunal had earlier referred. If so, in the Employment Appeal Tribunal's judgment, the two cases were not on a par because Burton had involved the exposure of female ethnic minority staff to predictable detriment which was both race- and gender-specific. Here, by contrast, while in the Employment Appeal Tribunal's view it was correct that failure to investigate sexual harassment might permit future conduct which in turn rendered the employer liable under the Burton principle, it was necessary first to ask whether the failure to investigate was itself gender-based.
12. The Employment Appeal Tribunal, however, went on to uphold the conclusion of the Industrial Tribunal by reasoning from the facts which the Industrial Tribunal had established along a line which was not the same as the Industrial Tribunal's. Morison J said:
"The detriment which continues from the harassment is not caused by the failure to carry out a proper investigation. The detriment that is caused by failure to carry out a proper investigation may well be the risk of a repetition of the same conduct which, if it occurred, might make the Employer liable under the Burton principle and that the damage sustained by the individual will be increased as a result of failure to put an end to the incident and give the victim proper support. It seems to us that [Mr Brennan's] submission that there is a logical problem with this part of the Tribunal's decision, is correct. It would appear that they have failed directly in that sentence to ask themselves whether the failure to carry out an investigation was based on the gender of the complainant or was contributed to by her gender. In other words, whether she suffered less favourable treatment on the grounds of her sex.
However, we do not consider that that was the only basis for the Tribunal's decision because looking at the whole of paragraphs 54 through to 58, it seems to us that they were in fact also deciding that the reason why the complaint of sexual harassment was not investigated was because Mr Julian of the HO regarded the incidents of sexual harassment as having been the fault of the victim. ... That, of course, is a familiar position to find where the victim is a woman and is complaining of sexual harassment by a man. It would not be the first time that this court has encountered an attitude which can be described as stereotypical that the woman has, in some way, asked for or been responsible for the mistreatment to which she has been subjected by the man. It seems to us therefore that, taking those paragraphs as a whole, the Tribunal were upholding the complaint of unlawful discrimination on the grounds of [sex] on the basis that the reason why the clear policy of the Home Office had not been put into operation by Mr Julian was because of his view that she was to blame, and that by failing to carry out that investigation she had been subjected to a detriment, namely a failure by the Home Office properly to give her the support that was required under the procedure and to take steps to ensure that so far as she was concerned she would be confident that her working environment would not expose her in future to a risk of similar conduct.
That was a contention of unlawful discrimination which the Tribunal were entitled to uphold, and indeed as we understand it - although we have to confess that the position is not entirely clear - we think that is the basis also on which the Tribunal have arrived at their decision."
13. Later, summarising, Morison J held it to be reasonably clear that the Industrial Tribunal
"were satisfied that the Home Office had acted unfairly towards [Ms Coyne] by not carrying out a proper investigation in accordance with procedure, and they were fully entitled to conclude that this was because of the view they had taken based on her gender."
14. It is the final four words of this passage which are of course critical. Any sex discrimination in a case such as this must be direct discrimination in the sense set out in s.1(1)(a) of the Sex Discrimination Act 1975:
A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if
(a) on the ground of her sex he treats her less favourably than he treats or would treat a man.
The necessary basis of comparison is set out in s. 5(3):
A comparison of the cases of persons of different sex ... under s. 1(1) ... must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.
Among the relevant circumstances are those described in s. 6(2):
It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her
(a) in the way he affords her access to opportunities for ... training ... or by deliberately omitting to afford her access to them, or
(b) by dismissing her, or subjecting her to any other detriment.
It is also relevant that while s. 41(1) makes an employer (including the Crown: s. 85) vicariously liable for employees' acts, s. 41(3) affords a defence to an employer who can show that he took all reasonably practicable steps to prevent them. In the present case, for reasons which will be apparent from the history set out above, no such defence was put forward.
15. There is no question on the Industrial Tribunal's findings but that Ms Coyne suffered various forms of detriment. But Mr Timothy Brennan for the Home Office submits that, whatever the case may be in other fact situations, it is the dilatory handling of Ms Coyne's complaint which has to be related to the complainant's gender if this particular complaint of sex discrimination is to succeed. This is correct. But it does not follow that the handling of the complaint is to be looked at in isolation. It is to be looked at in a situation in which a woman has found herself first marginalised in a new job and then sexually harassed. She accepts the offender's apology, only to find that her de facto manager is angry with the offender for having apologised and is blaming her for the incident. Thus far it seems to me (and, I think, seemed to the EAT), we are looking at plain acts of sex discrimination - in particular on the part of Mr Brown, whose indefensible reaction in blaming the victim was as plainly founded on Ms Coyne's gender as were Mr Smith's gestures. The Home Office, however, is not vicariously liable for Mr Brown.
17. Later in June 1990 Mr Brown sends Mr Julian an adverse report on Ms Coyne, making no reference in it to the problem of sexual harassment. At this stage there is nothing, on the evidence, to alert Mr Julian to what lies behind it. Then in September, Mr Brown's earlier report on Ms Coyne as being solely responsible for her poor relationships with staff and students is adopted and endorsed by Mr Julian. Again the fact that it is tainted by sex discrimination is not patent; but what now matters is that Mr Julian has since late July also had in his hands Ms Coyne's complaint about, among other things, Mr Brown's discriminatory attitude and conduct towards her. In particular it records how he has blamed her for Mr Smith's sexual harassment of her. Yet neither Mr Julian nor anybody else deals with it, either on its own or - equally importantly - as something having a bearing on the adverse appraisal of her. Instead the Home Office continues to rely on Mr Brown's adverse view, very much to Ms Coyne's detriment until, at a very late stage, it is realised that it must be dealt with before dismissal can be decided upon. Even then it is mishandled.
18. In King v Britain-China Centre [1992] ICR 517, this court summarised the principles governing inferences of unlawful discrimination by fact-finding tribunals as follows:
"(1) It is for the applicant who complains of racial discrimination to make out his or her case. Thus if the applicant does not prove the case on the balance of probabilities he or she will fail. (2) It is important to hear in mind that it is unusual to find direct evidence of racial discrimination. Few employers will be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely based on an assumption that "he or she would not have fitted in." (3) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 65(2)(b) of the Act of 1976 from an evasive or equivocal reply to a questionnaire. (4) Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds. This is not a matter of law but, as May LJ. put it in North West Thames Regional Health Authority v. Noone [1988] I.C.R. 813, 822, "almost common sense." (5) It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind both the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case."
19. Mr Brennan adopts the Employment Appeal Tribunal's critique of the Industrial Tribunal's apparent extrapolation in the second sentence of paragraph 57 from Burton v De Vere Hotels [1997] ICR 1 - not on the ground that an employer's failure to deal in retrospect with sex discrimination can never itself amount to such discrimination, but on the ground that the link between Mr Brown's discriminatory conduct and Mr Julian's neglect of Ms Coyne's complaint is too exiguous to permit the Home Office to be fixed with it.
20. The Industrial Tribunal clearly thought otherwise. They did not, it is true, express their conclusion in terms of inference. They reasoned simply that the sequence of victim-blaming by Mr Brown and (once he knew of the complaint) Mr Julian, the consequent delay of nearly two years by the latter in dealing with the complaint and the biased adjudication finally made upon it were a detriment or series of detriments directly related to the harassment which, as is conceded, amounted to unlawful sex discrimination.
21. In my view this was a permissible approach and a tenable conclusion both in law and in fact, at least up to the point of time when an inquiry was finally initiated. In law, the value of Neill LJ's judgment in King is not that it affords a formula which tribunals must explicitly follow but that it explains why what is required is a rounded evaluation of whether an applicant has proved her case, and why a case may be proved by the want of an acceptable explanation for a detriment suffered in apparently discriminatory circumstances. The Industrial Tribunal's reasons in the present case afford an example of this approach. There is in my view no separate point of law arising out of Burton v De Vere Hotels, and I think that the Employment Appeal Tribunal was wrong to criticise the Industrial Tribunal on that score. The question, as Mr Brennan has rightly accepted, was one of fact: did Mr Smith's harassment of Ms Coyne contribute materially to the protracted neglect by the Home Office of her complaint?
22. For reasons which appear from the summary of the history at paragraphs 16 and 17 above, I consider that the Industrial Tribunal was entitled to reach the conclusion that the way in which Ms Coyne's complaint was dealt with amounted to sex discrimination. In the statutory language, Ms Coyne was found to have been treated by the Home Office less favourably than a man would probably have been in such a situation (a) because a man would not have been blamed in the way she had been by Mr Brown for being subjected to indecent gestures and (b) because the Home Office, in the knowledge by September 1990 that such victim-blaming might be a serious factor in the adverse appraisals of her which Mr Julian had uncritically adopted from Mr Brown, did nothing to investigate it. Of these two reasons, (a) is in my view an entirely permissible inference for an expert tribunal to draw: indeed a contrary view might well have been perverse. As to (b), it is the knowledge of (a) which her complaint afforded to the Home Office which, in my view, made it permissible for the Industrial Tribunal to find that (a) was a contributory element in (b). If one looks at it in the round, remembering that "on the ground of her sex" in s. 1(1) involves a "but for" test (see James v Eastleigh BC [1990] 2 AC 751), it is a tenable conclusion that but for the fact that she was a woman, Ms Coyne would not have found her complaint being neglected on the explicit assumption that she had only herself to blame for her difficulties.
23. For these reasons I would dismiss this appeal.

Sir Christopher Slade:
24. I have had the advantage of reading the judgments of Morritt LJ and Sedley LJ in draft. I differ with much hesitation from Sedley LJ, whose experience in this field of the law is so much greater than my own. But I find myself compelled to agree with Morritt LJ that this appeal should be allowed, for the reasons which he has given. I shall attempt to summarise quite briefly what appear to me the most salient points in my own words.
25. Miss Coyne's complaint is made in reliance on section 6(2)(b) of the Sex Discrimination Act 1975 ("the 1975 Act") which provides:
"It is unlawful for a person in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her - ....
(b) by dismissing her, or subjecting her to any other detriment"

26. The relevant part of the definition of "discriminate" is to be found in section 1(1)(a) of the 1975 Act, which provides as follows:
"(1) A person discriminates against a woman in any circumstances relevant for
the purposes of any provision of this Act if -
(a) on the grounds of her sex he treats her less favourably than he treats or would treat a man ."
27. This definition is supplemented by section 5(3), which provides:
"A comparison of the cases of persons of different sex or marital status under section 1(1) ... must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."

28. Though she had suffered sexual harassment by employees of the Local Authority, the only "detriment" upon which Miss Coyne can and does rely for the present purposes is the failure of the Home Office to deal properly with her complaints relating to this harassment. Such failure indubitably caused her "detriment". For the purpose of establishing her complaint against the Home Office, however she had to show that the subjection to such detriment itself, constituted "discrimination" within the meaning of section 1(I)(a) that is to say "on the grounds of sex". To show this, she had to satisfy a crucial condition, that is to say, by demonstrating that the Home Office, in handling her complaint treated her less favourably than it would have treated a man in similar circumstances.

29. The Industrial Tribunal ultimately seems to me to have overlooked the need for Miss Coyne to satisfy this crucial condition. It incorrectly concluded from the decision in Burton v De Vere Hotels [1997] ICR 1 that since in that case the failure by an employer to prevent racial harassment occurring had constituted the subjection of the employee to detriment on the grounds of race, the failure by the employer in the present case properly to investigate the complaint by its employee of sexual harassment (without more) must have likewise constituted subjection of the employee to detriment on the ground of sex. Having misdirected itself in reliance on the Burton decision, the Industrial Tribunal accordingly did not consider it necessary to make any finding as to whether the Home Office's treatment of Mrs. Coyne's complaint would have been any different "but for" her being a woman - (which is the relevant test: see James v Eastleigh BC [1990] 2 AC 751).
30. The Employment Appeal Tribunal rightly identified the logical problems involved in the Industrial Tribunal's reliance on the Burton decision and rightly recognised the need for Miss Coyne to satisfy the crucial condition to which I have referred. Their attention was accordingly, also rightly focused on the conduct of Mr. Julian the only employee of the Home Office whose conduct was said to have involved sexual discrimination. They concluded, in their words "just", that they should uphold the decision of the Employment Appeal Tribunal "on what would have been a sound basis for which there is support in [paragraphs 54 - 58] and which we are ultimately persuaded was one of the bases on which they were finding the Home Office to be responsible in law for a unlawful act of discrimination". This basis was that "the reason why the clear policy of the Home Office had not been put into operation by Mr. Julian was because of his view that [Miss Coyne] was to blame ......" .

31. For my part, however, with all respect to Sedley LJ's view to the contrary, I am unable to extract from the Industrial Tribunal's decision any finding (express or implicit) that Mr. Julian's opinion that Miss Coyne was to blame for the sexual harassment to which she has been subjected was in fact the cause of Mr. Julian's failure to deal properly with her complaint.

32. On the footing that the Employment Appeal and the Industrial Tribunal both misdirected themselves (as in my judgment they did) I can see no grounds upon which this court could itself properly supply the missing, essential link in Miss Coyne's case by itself drawing from the facts found by the Industrial Tribunal an inference that Mr. Julian dealt with Miss Coyne's complaint less favourably than he would have done but for her being a woman.

33. For these short reasons, and for the further reasons given by Morritt LJ, with whose judgment I fully agree, I too would allow this appeal and dismiss Miss Coyne's complaint to the Industrial Tribunal.

Lord Justice Morritt:
34. The circumstances in which this appeal arises have been fully described by Sedley LJ. I gratefully adopt his account of them. Nevertheless I find it necessary to repeat what, to me, are the salient facts.
35. The relevant background starts in 1990 with the conduct of Mr Smith, an employee of the Local Education Authority, making offensive gestures of a sexual nature to Miss Coyne, an employee of the Home Office. Miss Coyne reported the incident to Mr Richard Brown ("Mr Brown"), an employee of the Local Education Authority but also Miss Coyne's de facto line manager. Mr Smith apologised to Miss Coyne and she accepted his apology. Mr Brown then came to her room. He appeared to be furious that Mr Smith had apologised, he told Miss Coyne that Mr Smith had made the gesture because she did not get on with people and treated the episode as her fault. The Industrial Tribunal found as a fact that Mr Brown held the view, as expressed in his file note dated 21st May 1990, that this and two other incidents were related to her relationships with members of staff.
36. On 17th June 1990 Mr Brown wrote a Memorandum to Mr Julian, the Head of Inmate Activity and the officer in the Home Office to whom Miss Coyne reported, expressing his views on Miss Coyne and suggesting that she was going through some psychological crisis and should be offered a posting in some less stressful establishment than Holloway. Mr Brown did not refer to the conduct of Mr Smith. On 25th July 1990 Miss Coyne made a complaint in writing to Mr Lancaster, another officer of the Home Office to whom she reported, and Mr Julian complaining of harassment and victimisation by Mr Brown amongst others. In that connection she referred to sexual harassment by Mr Smith and the fact that Mr Brown had spoken to him. She alleged that Mr Brown had insinuated that the two incidents to which she referred one of which was the incident involving Mr Smith "were because I did not get on with people". As the Industrial Tribunal observed this was clearly a complaint of sexual harassment. The appraisal report of Miss Coyne made in September 1990, to which Sedley LJ has referred, was countersigned by Mr A.J.Brown, the principal education officer based in the Home Office and agreed by the Governor, Mr O'Sullivan.
37. The complaint of Miss Coyne was not dealt with by the Home Office until Mr Benson met her, in the company of two representatives of her union, on 14th February 1992. Having heard her account and, later, that of Mr Brown and Mr Julian Mr Benson produced a written report dated 25th March 1992. With regard to the complaint concerning the conduct of Mr Smith and Mr Brown's reaction to it the report stated that Mr Brown refuted the allegation and continued
"..From my experience of Mr Brown....I would judge that the behaviour which she alleges would be totally out of character.."
The Industrial Tribunal concluded that there was no indication that Mr Benson's report was acted on by the Home Office in any way.
38. The question for the Industrial Tribunal was whether the conduct I have described amounted to unlawful sex discrimination on the part of the Home Office. They directed themselves by reference of King v Great Britain-China Centre [1991] IRLR 513 and observed that the Home Office had not called Mr Brown as a witness. They referred to the relevant provisions of Sex Discrimination Act 1975, namely sections 1(1)(a) and 6(2)(a) or (b) and to the liability of employers or principals for the acts of their employees or agents as provided for in s.41(1) and (2). In relation to the provisions of s.6(2)(b) they pointed out that a single act of verbal sexual harassment might constitute the relevant detriment. In connection with comparable provisions in the Race Relations Act they said:
"it has been held that a detriment may be constituted by the employer, ie the management or other controlling body, exposing the employee to discrimination, by way of harassment by third parties or the risk of such discrimination, and that this liability on the part of the employer is by way of personal fault on the part of the management, as distinct from the liability and fault which may arise vicariously from employees or agents committing acts of discriminatory harassment: see Tower Boot Co v Jones [1995] IRLR 529 at 530; Burton and Rhule v De Vere Hotels [1996] IRLR 596."
39. The conclusion of the Industrial Tribunal is contained in paragraphs 55 to 58 of their decision and is in the following terms:
55....She [Miss Coyne] made a complaint of discrimination on the grounds of sex, constituted by an act of harassment. That was a detriment to which she was subjected by persons with whom she worked. She was then in our view, subjected to a detriment by the way in which that complaint was treated.
(i) Firstly, the incident was treated as being her fault, not only by Mr. Brown but also by Mr. Julian.
(ii) The complaint was not dealt with promptly. There was a delay of nearly two years.
(iii) Although Mr. Benson's report was in many ways forthright and well balanced in its criticism of what occurred at the Prison in relation to Miss Coyne, that comment cannot be made of the way in which he determined her complaint of sexual harassment. He stated simply:
"Both the EO and the then acting DEO firmly refute the allegation in paragraph 6. From my experience of Mr. Brown (and from my brief acquaintance with Mr. Toman) I would judge that the behaviour which she alleges would be totally out of character."
56. In our view, that was a biased attitude to adopt. If he held that strong a personal view about Mr. Brown and Mr. Toman, he should have passed that aspect of the enquiry to someone else. It does not reflect an independent adjudication of her complaint.
57. In our judgment, the detriment to which Miss Coyne was subjected by the treatment given to her complaint of sexual harassment was directly related to, and part of the detriment constituted by the harassment. Applying the legal principles which we have set out earlier in these reasons, it appears to us that there is no material difference between a failure to prevent harassment occurring and a failure to deal properly with a complaint of sexual harassment, since the natural consequence of a failure to deal with a complaint will be a risk of continuation of the same conduct. The same considerations apply to a treatment of the complaint which proceeds on the basis that the fault must lie on the part of the victim rather than the person harassing the victim.
58. Therefore, for the reasons we have set out, we find the complaint of discrimination on the grounds of sex well-founded on the limited basis of the treatment of Ms Coyne's complaint of sexual harassment."
40. This view was not shared by the Employment Appeal Tribunal (Morison J, Lord Gladwyn of Clee CB, CBE, JP and Mr R.N.Straker) when the matter went before them on the cross-appeal of the Home Office. After quoting the same passages from the decision of the Industrial Tribunal they considered that it was not entirely clear on what basis the Tribunal had concluded that the Home Office were liable on the limited basis referred to in paragraph 58, namely that they had unlawfully discriminated against Miss Coyne by reason of their failure properly to investigate her complaints. They thought that on one view of paragraph 57 of the Tribunal's decision they were seeking to apply the decision of the Employment Appeal Tribunal in Burton v De Vere Hotels [1997] ICR 1. Having analysed the facts and principles established by that case the Employment Appeal Tribunal held that if the Tribunal was seeking to apply the ratio of that case then they were in error because
"In this case the question is not directed to the responsibility of the Home Office for the commission of an act which they could have prevented. This case is concerned with the responsibility of the Home Office for the consequences of acts which have already occurred. Accordingly the decision in Burton does not apply."
41. It is not contended by counsel for Miss Coyne that the Employment Appeal Tribunal was wrong in coming to that conclusion. Having thus disposed of "one view" of the limited basis on which the Industrial Tribunal determined the application, the Employment Appeal Tribunal then indicated what the Industrial Tribunal should have been doing, namely,
"..asking itself.. "what was the detriment alleged against the Home Office?" The answer is "it was their failure to carry out a proper investigation of the complaint of sexual harassment that had been made" and the next enquiry was whether that had been caused by the gender or sex of the complainant. There may be many reasons why an employer fails to carry out a proper investigation and in each case the question at issue will be whether the Tribunal can infer that the sex of the complainant was the reason for the non-investigation"
Later the Employment Appeal Tribunal added
"It would appear that they [the Industrial Tribunal] have failed directly in that sentence to ask themselves whether the failure to carry out an investigation was based on the gender of the complainant or was contributed to by her gender. In other words, whether she suffered less favourable treatment on the grounds of her sex."
This approach was not criticised by counsel for Miss Coyne either.
42. The Employment Appeal Tribunal then proceeded to consider whether that was the only basis for the Tribunal's decision and decided that it was not:
"because looking at the whole of paragraph 54 through to 58, it seems to us that they were in fact, also deciding that the reason why the complaint of sexual harassment was not investigated was because Mr. Julian of the Home Office regarded the incidents of sexual harassment as having been the fault of the victim. There was, in the Tribunal's view, a biased attitude within the Home Office in the Benson report in particular. They noted that the treatment of the complaint by the Home Office proceeded on the basis that the fault must lie on the victim rather than on the person harassing the victim.
That, of course, is a familiar position to find where the victim is a woman and is complaining of sexual harassment by a man. It would not be the first time that this Court has encountered an attitude which can be described as stereotypical that the woman victim has, in some way, asked for or been responsible for the mistreatment to which she has been subjected by the man. It seems to us therefore, that taking those paragraphs as a whole, the Tribunal were upholding the complaint of unlawful discrimination on the grounds of sex on the basis that the reason why the clear policy of the Home Office had not been put into operation by Mr. Julian was because of his view that she was to blame and that by failing to carry out that investigation, she had been subjected to a detriment, namely, a failure by the Home Office properly to give her the support that was required under the procedure and to take steps to ensure that so far as she was concerned she would be confident that her working environment would not expose her in future to a risk of similar conduct.
That was a contention of unlawful discrimination which the Tribunal were entitled to uphold and indeed, as we understand it - although we have to confess that the position is not entirely clear - we think that is the basis also on which the Tribunal have arrived at their decision. It is one of those difficult cases, we have to confess, where the Tribunal's reasoning process is not as happily expressed as we would have wished. The case took place 3 years ago. It is (both counsel have put it on this basis I think) unthinkable that we should have to remit the matter back to the Employment Tribunal to elaborate their decision, which would have been the only alternative available to us, to dismissing the appeal, having regard to the terms of the paragraphs to which we have referred.
On balance therefore, we have been persuaded, just, that we should uphold the decision of the Employment Tribunal on what would have been a sound basis for which there is support in these paragraphs and which we are ultimately persuaded was one of the bases on which they were finding the Home Office to be responsible in law for an unlawful act of discrimination."
43. The transcript then records the reasons why, later, the Employment Appeal Tribunal refused permission to appeal to this court. In that connection the Employment Appeal Tribunal said:
"It seems to us that this was, in the end, a factual matter for the Employment Tribunal sitting as an industrial jury and although, as we have indicated, the difficulty arises from the way that they have expressed their decision, it seems reasonably clear from the whole of it that they intended to find in favour of Miss Coyne on the basis that they were satisfied that the Home Office had acted unfairly towards her by not carrying out a proper investigation in accordance with their procedure and they were fully entitled to conclude that that was because of the view they had taken based on her gender."
44. The lengthy passage I have quoted in paragraph 9 was criticised by counsel for the Home Office as involving a rewriting of paragraphs 55 to 58 of the Industrial Tribunal's decision. He points out that the alleged sexual discrimination is the failure to pursue the complaint of sex discrimination. He accepts that such a failure may be "on the ground of sex" but points out that it is not necessarily so. Similarly he accepts that the attitude that the sexual discrimination is the fault of the victim may indicate sexual discrimination but it does not necessarily do so. He forcefully submitted that there was no finding and no material from which to infer that the attitude of Mr Julian was sexually discriminatory.
45. Counsel for Miss Coyne contended that the conclusion of the Industrial Tribunal was justified by the facts they found. She submitted that Mr Julian had delegated his responsibilities as Miss Coyne's line manager to Mr Brown and had adopted the view of Mr Brown that the relevant incident was the fault of Miss Coyne. She suggested that there was a continuity of treatment from the original gestures of Mr Smith, through Messrs Brown and Julian, to the failure of the Home Office properly to deal with Miss Coyne's complaint such that such treatment could be classified as being discriminatory on the ground of her sex.
46. I prefer the submissions for the Home Office. It is convenient to start with the findings of the Industrial Tribunal which I have quoted in full in paragraph 39 above. First it is necessary to reject, as irrelevant, the conclusions reached in paragraphs 55(iii) and 56. Whether or not Mr Benson was entitled to use his knowledge of Mr Brown in the resolution of the disputed issues of fact which arose from the rival accounts of Miss Coyne and Mr Brown there is no finding that any consequential bias or lack of independent adjudication was sexually related nor is there any material from which that could be inferred. It is not disputed that the complaint was not dealt with properly by the Home Office nor that the lapse of two years was unacceptable. But the conclusion in paragraph 55(ii), whilst unchallenged, is of itself insufficient material from which to infer that the delay was sexually related.
47. Thus the issue of sex discrimination turns on the detriment constituted by the way in which Miss Coyne's complaint was processed and the finding in paragraph 55(i) that the Smith incident was treated as being the fault of Miss Coyne, not only by Mr Brown but also by Mr Julian. The Industrial Tribunal did not conclude that the attitudes of Mr Brown and Mr Julian were the stereotypical attitudes to which the Employment Appeal Tribunal referred in the passage from their judgment I have quoted in paragraph 42 above. As a specialist tribunal it is to be expected that if that is their view it will be clearly expressed. It was not. So the question is whether it may be inferred from the other facts the Industrial Tribunal did find.
48. I take first the case of Mr Brown. He did not give evidence to the Industrial Tribunal. But Miss Coyne did. In relation to her complaint of victimisation the Industrial Tribunal considered that her perception of events was distorted in that she tended to see herself in every situation as a victim and did not understand the effect her words and actions might have on others (paragraph 65). They pointed out that the Benson report had concluded that Miss Coyne suffered from inadequate training and support. But they declined to infer that this was less favourable treatment on the grounds of sex; rather was it (paragraph 66)
"evidently symptomatic of a broader problem of mismanagement, and the difficulties which arose out of her relationship with certain of her colleagues."
But this was also the view of Mr Brown as expressed in the file note to which the Industrial Tribunal referred. The fact that Mr Brown was furious that Mr Smith had apologised when informed of Miss Coyne's complaint appears to me to be an inadequate ground from which to infer that his view that Miss Coyne was herself at fault was because of her sex as opposed to her relations with certain of her colleagues.
49. It is also appropriate to deal with the submission that Mr Julian, whatever his own attitude, adopted the attitude of Mr Brown. I have great difficulty in seeing any basis on which the attitude of the latter could be imputed to the former or to the Home Office apart from the communications the one made to the other. Mr Brown was not the agent or employee of Mr Julian or of the Home Office. The facts that they both worked in Holloway and that Mr Brown was Miss Coyne's de facto line manager do not appear to me to be sufficient grounds to impute to one individual the attitude of another, which, on this hypothesis he did not himself hold.
50. So it is necessary to consider what Mr Julian was told by Mr Brown. On the findings of the Industrial Tribunal this is confined to the contents of the memorandum dated 17th June 1990 summarised in paragraph 17 of their decision and the earlier letter written by Mr Brown to Mr Julian in April 1990 referred to in the same paragraph. As I have previously pointed out no reference was made in the memorandum to the Smith incident and the letter may have preceded it. But the memorandum did contain the views and suggestions I have summarised in paragraph 3 above. There is nothing there to suggest that the attitude of Mr Brown was comparable to the stereotypical attitude referred to by the Employment Appeal Tribunal either. It follows that there was nothing at that stage told to Mr Julian to warrant any inference that such was Mr Brown's attitude in fact.
51. I turn then to the attitude of Mr Julian himself. He had the benefit of Mr Brown's memorandum, the earlier letter and, as from 25th July 1990, the contents of Miss Coyne's complaint to Mr Lancaster and to him. Thus from that date he knew that Miss Coyne had made a complaint of sexual harassment arising out of the Smith incident and that it had not been passed on to him by Mr Brown. But that does not of itself lead to the inference that the attitude of Mr Julian that the fault lay with Miss Coyne was related to her sex rather than the problems she had in her relations with other members of the staff. Mr Julian gave evidence to the Industrial Tribunal. If that Tribunal had considered that the attitude of Mr Julian conformed to the stereotype to which the Employment Appeal Tribunal referred it was their duty to say so. British Telecommunications plc v Williams [1997] IRLR 668, 670 per Morison J.
52. Thus the fact that the Smith incident was treated by both Mr Brown and Mr Julian as being the fault of Miss Coyne cannot on the findings of the Industrial Tribunal be related to the sex of Miss Coyne as opposed to her relations with some fellow employees. The final sentence of paragraph 57 of the decision of the Industrial Tribunal, quoted in paragraph 6 above, appears to suggest that either Mr Julian (or Mr Brown) considered that the fault must always lie with the victim of sexual harassment rather than on the harasser or that it is not necessary that the harassment should be on the ground of sex. If either of those interpretations is the correct reading of the sentence it is, in each case, unsupportable. The first interpretation arises from the use of the word "must". There was no factual basis for an inference that either Mr Brown or Mr Julian considered that the victim of sexual harassment must always be to blame. The second interpretation arises from the omission of any reference to the harassment being on the ground of the sex of the victim. I accept that it is unlikely that this interpretation would have been intended by the Industrial Tribunal; but if it was then it is obviously unsustainable as a matter of law.
53. For all these reasons I do not consider that the findings of the Industrial Tribunal set out in paragraphs 55 to 57 justify the conclusion set out in paragraph 58. How then did the Employment Appeal Tribunal come to a different conclusion? I have quoted their reasons in paragraph 42 above. It was suggested by Sir Christopher Slade in the course of argument that the stages in the reasoning might be summarised as being (1) Mr Julian regarded the Smith incident as being the fault of Miss Coyne, (2) Courts often encounter this attitude in cases of sexual discrimination, therefore (3) we, the Employment Appeal Tribunal, infer that the Industrial Tribunal must have regarded this as such a case. This analysis, with which, subject to one point, I agree discloses a logical fallacy. My point of disagreement relates only to the fact that the third step in the analysis is only reached expressly in the passage quoted in paragraph 10 above. It is not without interest that in the passages quoted in paragraph 9 above the Employment Appeal Tribunal did not find in terms that the attitude of Mr Julian was gender-based.
54. For all these reasons I do not think that the findings of the Industrial Tribunal justified their conclusion. Nor do I consider that the inference the Employment Appeal Tribunal drew as to the findings of the Industrial Tribunal were justified. In arriving at this conclusion I am differing from Sedley LJ whose experience in this field is so much greater than my own. I have reconsidered my conclusions and my reasons for them in the light of his judgment. But, with the greatest respect to him, I still adhere to my views. Accordingly, for my part, I would allow the appeal of the Home Office and dismiss the complaint.
Order: Appeal allowed; complaint dismissed; appellant to pay respondent's costs, not to be enforced without the further leave of the court; legal aid taxation of appellant's costs.
(Order does not form part of approved judgment.)