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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Osibanjo ETE & Co v Pinnock [2002] EWCA Civ 1529 (8 October 2002)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1529.html
Cite as: [2002] EWCA Civ 1529
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE D M LEVY QC)
Strand London, WC2 Tuesday, 8th October 2002 |
||
B e f o r e :
LORD JUSTICE MANCE
____________________
| OSIBANJO ETE & CO | Applicant | |
| -v- | ||
| MS A PINNOCK | Respondent |
____________________
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
The Respondent did not appear and was unrepresented.
____________________
Crown Copyright ©
- LORD JUSTICE PETER GIBSON: The employers, Osibanjo Ete & Company, renew in open court their application, which I refused on paper, for permission to appeal from part of the order of the EAT on 11th June of this year. The EAT was holding a preliminary hearing of the employers' appeal from the decision of an Employment Tribunal in London South. The Tribunal, by a decision sent to the parties on 30th November 2001, found that the complaint by the employee, Alison Pinnock, of sex discrimination and victimisation was well-founded, and at a remedies hearing by a decision sent to the parties on 11th February 2002 the Tribunal ordered the employers to pay the employee £8,250 for injury to feelings, aggravated damages and interest and a little over £5,000 in respect of their costs. The EAT allowed the employers' appeal to go to a full hearing on the issue of quantum only.
- The facts as found by the Tribunal can be summarised thus. The employers are a firm of solicitors. Ms Pinnock commenced work with them on 22nd June 2000 as a temporary secretary supplied by an agency, and she was, as I understand it, a contract worker within section 9 of the Sex Discrimination Act 1975. She worked two and a half days a week for the employers. One of the partners, Mr Ete, in Ms Pinnock's first week made remarks about her body and clothes in a suggestive manner. He asked her whether she had a partner. She said that she had. He began to make comments that she was too young to have one partner and that she should leave room for one more man. Ms Pinnock told Mr Ete that she did not like his comments and that he should stop. A Mr Opara, who was a trainee solicitor with the employers at the time, made other suggestive comments. He would ask her whether she had sex during the weekend and suggested she would make a good stripper. Ms Pinnock complained to Mr Ete twice about that.
- On 14th July 2000 Ms Pinnock was offered a permanent post after Mr Ete agreed that the comments to her would stop. She started her permanent employment on 17th July. Mr Osibanjo, another partner, then began to make suggestive remarks to her about her clothes, her appearance and her body. She complained to him and to Mr Ete about Mr Osibanjo's treatment of her, though her complaints were not taken seriously. Mr Ganda, an outdoor clerk employed by the employers, also made advances to her, but she and Mr Osibanjo remonstrated with Mr Ganda and he stopped. Other matters of complaint were that Mr Osibanjo made comments about her suggestive of oral sex. Mr Osibanjo would put his hand on her back and arm on a number of occasions, despite her complaints about that.
- On 11th or 14th August 2000 Ms Pinnock was asked to retype a bill of costs, but after some time passed Mr Ete found she had not completed that task. He became annoyed with her. She walked out 20 minutes early. On 15th August Mr Osibanjo told Ms Pinnock that because of problems with her work she was to be dismissed.
- In a letter of 16th August she was told that it had been decided that her employment was to be terminated with immediate effect. The majority of the Tribunal found that Mr Osibanjo had implied that one way of avoiding dismissal would be if she granted him sexual favours and that he made a proposition to her to that effect. The Tribunal found that Ms Pinnock did refuse to carry out a legitimate instruction and walked out of the office and that her actions constituted serious misconduct but that her complaints about sexual harassment played a part in her dismissal.
- On 1st November 2000 she presented her originating application.
- The Tribunal in its Extended Reasons was very critical of the employers' conduct of the proceedings. The employers had indicated that they would call five witnesses and, although the Tribunal said that it would be reading all the witness statements in advance, it was not told that the employers had no intention of calling one of the witnesses. Mr Osibanjo was also to give evidence after lunch on the second day. He was not present at 2.00 p.m. A ten minute adjournment was granted. At 2.25 he was still not present. Another witness was called. His evidence was completed at 2.35. Still Mr Osibanjo was not present. He only arrived at 2.45, when he did not apologise and gave a reason for his delay which the Tribunal found extremely unlikely. At the end of the second day counsel for the employers assured the Tribunal that the employers' last witness, Mr Opara, would attend promptly at 10.00 a.m. the next day. At 10.00 a.m. Mr Opara was not at the Tribunal. Counsel said that he had just spoken to Mr Opara on the phone: Mr Opara was on a bus somewhere and would be about twenty minutes. The Tribunal concluded that the employers had tested its patience to its limit. It was minded to proceed directly with closing submissions, but it accepted the suggestion of Ms Pinnock's counsel that Mr Opara's statement should be admitted but given reduced weight because it had not been tested in cross-examination. The Tribunal then proceeded with hearing the closing submissions. Mr Opara arrived just after 10.30 a.m., but the Tribunal refused to hear his oral evidence.
- The Tribunal allowed one witness for Ms Pinnock, a Ms Ahmed, to give oral evidence on the second day even though, in contravention of an interlocutory order for the exchange of witness statements not later than 21 days before the hearing, no witness statement from Miss Ahmed had been prepared, nor was one made available until the Tribunal ordered that it be produced before the hearing on the second day.
- The Tribunal accepted the evidence of Ms Pinnock. It rejected the employers' evidence as unsatisfactory. It found that the employers had fabricated certain documents. The Tribunal concluded that there had been sexual harassment of Ms Pinnock, that remarks of a sexually suggestive nature had been made, which would not have been made had she been a man, and that she had suffered a detriment. It also concluded that there were two reasons for dismissal, one being that she had constantly complained about the remarks made to her of a sexually suggestive nature, and the dismissal was victimisation. It also found that a further reason for her dismissal was her refusal to carry out work and her walking out of the office. It further concluded that the employers' treatment of Ms Pinnock amounted to a continuing act under section 76(6)(b)of the 1975 Act culminating in her dismissal and it held that the claim was in time.
- The EAT dismissed the employers' appeal on liability. The grounds of appeal in the Appellant's Notice, which was filed in time, merely asserts that Ms Pinnock was dismissed for gross misconduct and that the employers found the Tribunal's decision that she was dismissed because of her complaint of sexual harassment perverse in view of the facts. Those facts were not specified. However, amended grounds of appeal were lodged on 12th August and the employers wish to rely on those grounds.
- Mr Richard Travers for the employers has advanced six arguments in his skeleton argument. Before us today he has concentrated on just three of them, though I do not understand him to be abandoning any of the other three. He said in his skeleton argument that the Tribunal was wrong to find the acts of sexual harassment amounted to an act extending over a period for the purposes of section 76(6)(b), and that to the extent that the employers had knowledge of the harassment they took steps to prevent it and referred to Mr Osibanjo remonstrating with Mr Ganda. I do not think that this ground has a real prospect of success. It is clear that the conduct of Mr Ete and Mr Osibanjo, both partners, was the subject of complaint, as was the conduct of Mr Opara. Further, the Tribunal found the atmosphere at the employers was such that members of staff would have felt it acceptable to make suggestive comments, having seen and heard the partners making similar comments to female staff.
- Second, it is said by Mr Travers that there was no act of sexual harassment which occurred between 1st August and Ms Pinnock's dismissal on 16th August. He complains that no dates of the events of sexual harassment are given in the originating application. But in it Ms Pinnock refers to an almost continual campaign of sexual harassment. Further, the employers never sought particulars of her complaint. It is said that there is an implicit finding that the acts of harassment continued after 1st August, but it argued that such finding was perverse because there was no evidence. We have not been provided with any notes of evidence and it is therefore difficult for Mr Travers to make good that allegation. In any event, the propositioning of Ms Pinnock at about the time of her dismissal with the suggestion that if she was prepared to give sexual favours she could avoid dismissal seems to me a plain act of sexual harassment. It is also said that the dismissal preceded that propositioning. There is no finding to that effect, and to my mind it is apparent from paragraphs 41 and 42 of the Extended Reasons that the finding of the majority of the Tribunal was that Ms Pinnock would avoid dismissal by granting the sexual favours. That implies that the propositioning preceded the dismissal. Further, the dismissal letter of 16th August suggests that it was only then that she was immediately dismissed. This ground also has no real prospect of success.
- Third, it is said that because 25% of the reason for dismissal was attributed by the Tribunal to Ms Pinnock's own misconduct the dismissal was not less favourable treatment. That ignores the fact that the preponderant reason for dismissal was her complaint about sexual harassment. Again there is nothing in my view in this point.
- I then come to the three matters on which Mr Travers addressed us today. Complaint is made about the admission of Ms Ahmed's evidence, in particular because she was present at the hearing on the first day and so could tailor her evidence to coincide with that of Ms Pinnock. But the Tribunal specifically noted that fact and took it into account. In my judgment it is impossible to say that there is a real prospect of success on this point, particularly when one has regard to what apparently was the largely unchallenged and brief evidence which Ms Ahmed gave, a point to which I will revert shortly.
- The fifth ground is that the refusal to allow Mr Opara to give oral evidence was perverse. I have already recounted the circumstances in which the Tribunal refused Mr Opara's oral evidence. That was a case management decision which in my judgment was open to the Tribunal in the circumstances of the case and there is no real prospect of this court interfering with that decision.
- Lastly, Mr Travers seeks to rely on fresh evidence from Ms Ahmed. There has been put before us a witness statement dated 10th June in which she says that she has suffered under the weight of her conscience and wishes to retract the evidence she gave to the Tribunal. She explains that she only gave her evidence in the way she did because she was under pressure from Ms Pinnock whom she did not want to lose as a friend. We are not provided with Ms Ahmed's original witness statement and, as I have said, we have no notes of evidence. No explanation is given of how she came to provide the further witness statement. I am not persuaded that the new evidence, if given, would have an important influence on the result. Ms Ahmed appears to have given evidence before the Tribunal for only twelve minutes. The Tribunal records that there was little cross-examination, and from what is recorded as having been the submission of counsel for Ms Pinnock the substance of what she was saying was not challenged in cross-examination. It is true that the Tribunal says that it accepted Ms Ahmed's evidence, but it lists three matters only which it records she said. She had confirmed that lunch was taken at desks; she witnessed an incident when counsel visiting the employers' offices made a remark to Ms Pinnock in a Nigerian language which she was told meant: "I have married her, she is mine"; and she confirmed the general atmosphere at the employers' offices. The Tribunal regarded these as "background points". They seem to me to be entirely peripheral. The behaviour of counsel cannot be attributed to the employers, and there is nothing to indicate the Tribunal thought it an important matter.
- In my judgment Ms Ahmed's evidence, if admitted, does not satisfy the well-known Ladd v Marshall tests. I do not regard it as likely to have an important influence on the result of the case. There must also be serious doubts as to Ms Ahmed's credibility in what she says in her unsworn witness statement in view of her earlier evidence, which was no doubt given on oath.
- For these reasons I am not persuaded that the appeal would have a real prospect of success. No other compelling ground for allowing the appeal to go ahead having been given, I would dismiss this application.
- LORD JUSTICE MANCE: I agree and, having listened to the detailed reasons which my Lord has just given, I do not consider that there is anything that I should usefully add.
Tuesday, 8th October 2002