United Kingdom Employment Appeal Tribunal

BAILII case number: [1993] UKEAT 62_93_1405

Appeal No. EAT/62/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 14th May 1993

Before

THE HONOURABLE MR JUSTICE WOOD MC (P)

MRS E HART

MISS C HOLROYD

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MISS L WADMAN          APPELLANT

CARPENTER FARRER PARTNERSHIP          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MS C PURKISS

Counsel

Free Representation Unit

13 Gray's Inn Square

LONDON

WC1R 5JP

For the Respondents MISS M BOWRON

Counsel

Messrs Park Nelson

1 Bell Yard

LONDON

WC2A 2JP


 


MR JUSTICE WOOD (PRESIDENT): By an Originating Application dated 19th May 1992 Miss Wadman alleged unfair dismissal by her employers who are Carpenter Farrer Partnership, a partnership of architects.

Her dismissal, in effect, because she did not have the two years qualification, was an allegation of sexual discrimination.

The hearing took place at Brighton on Wednesday 11th November 1992 before an Industrial Tribunal under the Chairmanship of Mr Warren. Miss Wadman, the Applicant, was represented by Counsel. The Partnership were represented by a solicitor.

The Tribunal reserved its decision which was promulgated on 27th November 1992. Her application failed and she now appeals. Having reserved its decision the Tribunal set out a document of some 9 pages in length. It recites the fact that the Applicant, aged 19, started her employment in July 1991, and that her employment terminated on 22nd April 1992. It then set out in all but its last four paragraphs, the evidence from each side. The evidence covers numerous complaints which Miss Wadman was making. They have been grouped under various headings by Miss Purkiss, her Counsel: personal insults; pressure to change her appearance; rude remarks; pin-up pictures on the wall; leering at her legs and some general sexist remarks denigrating women. It is also right to note that towards the end of her period of employment she was suffering, as the medical report show, from clinical depression. The reasoning, as we have already indicated, is contained in three paragraphs towards the end of the decision. They are short and it is simplest if we just refer to them. Paragraph 29 reads:

"29 The Applicant claims that she has suffered direct discrimination contrary to Section 1(i)(a) of the Sex Discrimination Act and we have purposely set out in this Decision the full evidence from both parties.

30 We reserved our Decision so that we would be able to give very detailed and full consideration to the evidence, particularly bearing in mind that the parties recollection of events differ considerably between the Applicant and the Respondent. Taking all of the evidence into consideration we believe that the Applicant has exaggerated the situation a little in giving evidence, and that the Respondents have played down some of the incidents. The Tribunal are conscious that it is not necessary for the Applicant to prove that the Respondents by their actions intended to sexually discriminate against the Applicant but if the conduct complained of amounts to sexual discrimination and the Applicant complains of it, then the intention of the Respondent is immaterial. In this particular instance having given very careful thought to this matter, and even if we were able to accept the evidence of the Applicant in its totality, we believe that whilst it certainly amounted to sexual harassment, we do not believe that the conduct amounted to sexual discrimination and we therefore find the application fails.

31 In particular we were mindful that despite all the Applicant tells us happened, she still wished to retain her job, and in fact sought help from her mother in persuading Mr Farrer not to dismiss her."

They comment at the end about the Respondents is that they did not handle the situation well even on their own evidence.

The basic requirements of a decision of an Industrial Tribunal have been considered by the Court of Appeal in Meek v. City of Birmingham District Council [1987] IRLR 250. The facts of that case are immaterial for our present purposes, and the well known passage is from the leading judgment given by Lord Justice Bingham, as he then was, in paragraph 8 of the decision. That paragraph reads thus:

"It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be a sufficient account of the facts of reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises . . ."

Bearing that in mind, it is important to see what the law is which should have been applied by this Industrial Tribunal and whether it directed itself sufficiently on the law, or indeed, whether we are able to see from their decision what direction the Tribunal, in fact, gave itself. The only reference to the law is in those passages which we have already cited, paragraph 29 and a short passage about intention in paragraph 30.

The relevant statutory provisions are those contained in Section 6(2)(b) and Section 1(1)(a) of the Sex Discrimination Act 1975. Section 6(2) reads:

"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) . . .

(b) by dismissing her, or subjecting her to any other detriment."

and this being a case of direct discrimination the relevant provision in Section 1(1)(a):

"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 leading case of Porcelli v. Strathclyde Regional Council [1986] ICR 564 was cited to the Industrial Tribunal although not mentioned in their decision. The facts of that case were that the Applicant, a woman, was one of three laboratory technicians employed at a school. The others were male who pursued a campaign against her, which included acts of a sexual nature, so that she applied for and was granted, a transfer to another school. She complained under the provisions of the 1975 Act with which we are also concerned. An Industrial Tribunal found that she had been discriminated against by the two male laboratory technicians, but it concluded that although their conduct subjected the applicant to a detriment they would have treated a male colleague, whom they disliked, just as unpleasantly. Thus it could not be said that the employers, through the two male technicians, had treated her less favourably than they would have treated a man within the meaning of Section 1(1)(a). Miss Porcelli appealed and her appeal was allowed. The defendants, the respondents, appealed to the Court of Session; that appeal was dismissed. In the headnote the Court held:

"that although the male technicians had adopted a course of conduct against the applicant because they disliked her and wished that she would leave the school, section 1(1)(a) of the Sex Discrimination Act 1975 was concerned with the treatment meted out to an applicant not with the motive for that treatment; that, accordingly, it was irrelevant that the treatment had no sexual related motive or objective but it was material whether the applicant had been treated by the male technicians less favourably than they would have treated a man that they similarly disliked; that, since part of the treatment meted out to the applicant was a form of unpleasant treatment that was only meted out because she was a woman, the applicant succeeded."

There are a number of passages to which reference has been made. It is important to note that although not in the specific findings of the Tribunal, the Court of Session had before it evidence of complaints made which were accepted to be valid complaints and they clearly were of a sexual nature. The learned Lord President (Lord Emslie) at page 568H clarifies the issues, where he says:

"I am happy to record that we at least begin our task with the advantage that the parties to the appeal were at one in submitting, correctly in my opinion, that, as it applies to the facts of this case, section 1(1)(a) gives rise to two questions: (first) was the applicant subjected by Coles and Reid to treatment on the ground of her sex (ie because she was a woman) and (second) if so, was she treated less favourably than the man with whom she falls to be compared would have been treated by these men."

Later, on page 569G he refers to:

"The industrial tribunal reached their decision by finding that Coles' and Reid's treatment of an equally disliked male colleague would have been just as unpleasant. Where they went wrong, however, was in failing to notice that a material part of the campaign against the applicant consisted of sexual harassment, a particularly degrading and unacceptable form of treatment which is must be taken to have been the intention of Parliament to restrain. From their reasons it is to be understood that they were satisfied that this form of treatment - sexual harassment in any form - would not have figured in a campaign by Coles and Reid directed against a man. In this situation the treatment of the applicant fell to be seen as very different in a material respect from that which would have been inflicted on a male colleague, regardless of equality of overall unpleasantness, and that being so it appears to me that upon a proper application of section 1(1)(a) the industrial tribunal ought to have asked themselves whether in that respect the applicant had been treated by Coles (on the ground of her sex) `less favourably' than he would have treated a man with whom her position fell to be compared."

Lord Grieve deals with the issues in two passages, each of which are, in our judgment, are most helpful in approaching some of these difficult cases. At page 572F he says this:

"Counsel on both sides of the Bar, submitted, in my opinion correctly, that the first question which had to be asked and answered in a case such as this, was `What was the nature of the treatment which was meted out to the complainer'? The next question in a case such as this, where there is no man in a similar position to the complainer against whose treatment by the employer that accorded to the complainer can be compared, is `Was the treatment meted out to the complainer less favourable than would have been meted out to a man in a similar position to her'? If that question is answered in the affirmative the final question is: `Was the treatment, or any material part of it, meted out to the complainer less favourable on the ground of her sex'? I quote the words of the section, but in what I have to say I propose to use the phrase `because she was a woman."

Then in guidance on the approach for tribunals the learned Lord says this at page 573C. He is dealing with the submissions of the learned Dean of Faculty and he says:

"the Dean of Faculty emphasised, and with respect, I think quite rightly, that the most important thing to identify in cases of this kind was the nature of the treatment complained of. It is the treatment of men and women in employment which the statute is trying to regular and control. Some forms of treatment can be clearly identified as being meted out on the ground of a person's sex, others cannot. The treatment accorded to a person can be identified and considered in its context, unlike the reasons for the dislike of one person by another. If some aspects of the treatment of a woman has sexual connotations, and other aspects have not, you should not consider the former in isolation. In this case the treatment accorded to the applicant included a variety of things, some sexually related, some not. What is clear from the findings of the industrial tribunal, so the submission continued, is that while the treatment which the tribunal considered would have been accorded to the notional man in the applicant's position would have been no less unpleasant than that accorded to the applicant, it would not have included any sexual harassment. That is a fair inference from the sentence quote above to the effect `The specific nature of the unpleasantness might well have been different but would have been in our view no less unpleasant.' The nature of the treatment, in so far as it harshness or unpleasantness was concerned was not the criterion. In making a comparison between the treatment accorded to a woman, and that which would have been accorded to a notional man as regards favourability, a conclusion could be reached that one was no less favourable than the other, but that was not necessarily an end of the matter. In order to decide whether there had been a breach of section 1(1)(a) consideration still had to be given - to use the Dean of Faculty's words - to the weapons used against the complainer. If any could be identified as what I called `a sexual sword,' and it was clear that wound it inflicted was more than a mere scratch, the conclusion must be that the sword had been unsheathed and used because the victim was a woman. In such a circumstance there would have been a breach of section 1(1)(a). That, it was submitted is the case here. The industrial tribunal had concentrated on the unpleasantness of the treatment meted out to the applicant and compared it with the unpleasantness of the treatment which they considered would have been meted out to a man whom his colleagues had disliked as much her colleagues disliked the applicant. That was a question of fact; but the question which had to asked after that conclusion had been reached was `Was the treatment, or any part of it, which was meted out to the applicant less favourable, than that which would have meted out to the notional man because the applicant was a woman'? The answer in this case, having regard to the findings listed above as (4) and (5), must be in the affirmative. The tribunal had applied the wrong test in relation to favourableness."

Those submissions were accepted by Lord Grieve.

Lord Brand towards the end of his judgment also has useful guidance. At page 576C he says:

"The primary question in terms of section 1(1)(a) of the Act is not `Was there sexual harassment?' but `Was the applicant less favourably treated on the ground of her sex than a man would have been treated?' If that question is answered in the affirmative, there was discrimination within the meaning of the Act and it was conceded by counsel for the employers that, in the present case, if there was discrimination, it was to the detriment of the applicant.

It is clear from the findings in this case that unpleasant campaign to which the applicant was subjected by Coles and Reid included significant elements of a sexual character to which a man would not have been vulnerable. The motive of the campaign was dislike of the claimant. Its purpose was to driver her out of the school. Assuming, as the industrial tribunal found, that a man in the applicant's shoes would have been the victim of unpleasant treatment at the hands of Coles and Reid, that treatment, although in all other respects the same as that meted out to the applicant, would not have included the behaviour which was sexually offensive to a woman.

The purpose of the Act is to regulate treatment. The Dean of Faculty submitted that the test of whether section 1(1)(a) had been complied with depended on what was done and not on motive. I agree with that submission. It follows that, if a form of unfavourable treatment is meted out to a woman to which a man would not be vulnerable, she has been discriminated against within the meaning of section 1(1)(a). That is this case."

Those passages, in our judgment, are most helpful guides for industrial tribunals, who, as we know, are being faced quite often, with allegations of what has been called "sexual harassment". Bearing in mind the accuracy with which the correct questions must be answered, it is nevertheless of assistance to see how the phrase "sexual harassment" is being understood in the present state of the law. "Sexual harassment" is not a definitive phrase in law, and it may be helpful to note recent moves within Europe. There have been recommendations which the European Commission have adopted. We have been helpfully referred not only to the recommendation but also to the Code of Practice on measures to combat sexual harassment which is attached to it. Article 1 reads as follows:

"It is recommended that the Member States take action to promote awareness that conduct of a sexual nature or other conduct based on sex affecting the dignity of women and men at work, including conduct of superiors and colleagues, is unacceptable if:

(a) such conduct is unwanted, unreasonable and offensive to the recipient;

(b) a person's rejection of or submission to such conduct on the part of employers or workers (including superiors or colleagues) is used explicitly or implicity as a basis for a decision which affects that person's access to vocational training, access to employment, continued employment, promotion, salary or other employment decisions; and/or

(c) such conduct creates an intimidating, hostile or humiliating work environment for the recipient;

and that such conduct may, in certain circumstances, be contrary to the principle of equal treatment within the meaning of Articles 3, 4 and 5 of Directive 76/207/EEC."

That is more commonly known as "Equal Treatment Directive". In the Code of Practice there is a definition, it reads thus:

"Sexual harassment means `unwanted conduct of a sexual nature, or other conduct based on sex affecting the dignity of women and men at work'. This can include unwelcome physical, verbal or non-verbal conduct."

That definition may also be of some assistance to tribunals in considering these matters. However, it is perhaps important, and we would comment, that harassment indicates a degree of repetition rather than a single act, although every case will depend upon its own facts, and that stress has been laid under Article 1 on the working environment.

However, provided that a tribunal has directed itself accurately on the law, and put to itself the correct question in UK Law then the issue is one of fact. The tribunal sees and hears the witnesses; the importance of that was stressed in a decision of this Tribunal Wileman v. Minilec Engineering Ltd [1988] ICR 318. The tribunal will look at all the surrounding circumstances; the personalities; the vulnerability of the personalities and indeed, the degree of severity of the incidents complained of, bearing in mind the phrase of Lord Grieve about "mere scratches".

That being the approach which we believe, and indeed it is submitted, that this Industrial Tribunal should have brought to the problems before it, we turn to this decision itself. There are no findings of primary fact. There is no sufficient direction in law from which we can ascertain what the Tribunal had in mind as the principles to be applied. There is no definition of the issues to be tried. Doing the best we can and bearing in mind the comments made in Meek, we find ourselves, and indeed listening to the submissions it seems that it is scarcely argued to the contrary, quite unable to analyse the thinking of this Tribunal. Merely to set out the evidence on both sides is in our judgment, is insufficient to enable us to analyse the reasoning. It is said that almost all the evidence of the Applicant must have been accepted because of the comments made. Yet, in fact there is clear indication that on some issues, the evidence of one side being preferred, on another, the evidence of the other side. We repeat, there are no primary facts found. It may be that in that comment about exaggeration, the Tribunal wished to take a kindly view and not to embarrass more than they had to. I am afraid that there come occasions where tribunals must not be afraid to find the facts if they do not accept the evidence of a witness, even though he or she may be suffering from clinical depression.

It follows therefore that we are quite unable to find facts upon which we could reach our own conclusions, we must not take the place of the industrial jury, and this matter must be remitted to be heard before a different tribunal as directed by the learned Regional Chairman. This case was, as we have said, a decision promulgated in November 1992. It has been brought on as fast as we are able with our present problems of delays and we would urge the learned Chairman to try to arrange that the re-hearing takes place at the earliest possible opportunity.

The appeal therefore, is allowed, and the matter remitted to be heard before a differently constituted tribunal.