At the Tribunal
Before
HIS HONOUR JUDGE J BULL QC
MR D G DAVIES
MR D GRIEVES CBE
Transcript of Proceedings
JUDGMENT
PRELIMINARY HEARING
Revised
APPEARANCES
For the Appellant IN PERSON
JUDGE BULL QC: In this case Mrs Jean Ann Hawkins appeals to us ex parte, by way of preliminary hearing, against the decision of the Industrial Tribunal which sat at Cardiff on 18 May 1992 whereby they dismissed complaints by her of both unfair dismissal and sexual discrimination. Full Reasons for those decisions were sent to the parties on 1 July 1992. Mrs Hawkins has been courteous enough to travel all the way here to appear in this court today although solicitors have not appeared on her behalf they have written letters to this Tribunal dated 11 and 12 October 1993 both of which we have read and considered in detail.
In the High Street at Swansea is a public house known as the `Adam & Eve' at which Mr John Pierce is the tenant and holds the licence from the Justices pursuant to the Licensing Act 1964. His son Stephen Pierce worked for his father at that public house in a number of capacities including bar man and also book-keeper responsible for keeping records of wages and the necessary statutory deductions by way of PAYE and National Insurance.
This Appellant, Mrs Hawkins, was also employed as a bar assistant and had been so employed since March 1986. Mrs Hawkins made a number of complaints about the conduct of the son of the licensee, Mr Stephen Pierce, towards her at that public house of which she gave full details and which she claimed amounted to sexual harassment. There is no point in going through the list of items that she alleged but we have read them and we are united in our condemnation of the abhorrent conduct of that man as found by the Industrial Tribunal. We are fully aware of the deep and lasting hurt which such behaviour can cause and also of the extreme reluctance of those, like Mrs Hawkins, who are subject to it, to make complaint. It is quite clear from the findings of fact of the Industrial Tribunal that Mrs Hawkins was wholly blameless. She did not encourage such conduct in any way whatsoever.
We regret that we are unable to adjudicate upon any personal claim which she may have against the man who treated her in this way.
Mrs Hawkins further claimed that there were some errors in the book-keeping by Mr Stephen Pierce which resulted in some underpayment to her of National Insurance Contributions. The Industrial Tribunal found that this error was discovered by the Appellant only after she had left her employment. She alleged that as a result of all these matters she was constructively dismissed. That was a contention which the Industrial Tribunal could not uphold and by paragraph 3 of her Notice of Appeal there is no appeal against the finding that she was unfairly dismissed in these circumstances. The appeal is limited to the matters under the Sex Discrimination Act of 1975.
We have looked at these matters with great care. It is important that we point out that Parliament has required us only to look at matters of law for the Industrial Tribunal are the judges of the facts. They have to arrive at the facts, and they have to apply the appropriate tests in law to those facts. The issue in this case is whether the conduct of Mr Stephen Pierce was an unauthorised or prohibited mode of doing an act which he was authorised to do in the course of his employment, in which case the employer is prima facie responsible; or whether on the other hand Mr Stephen Pierce's conduct was independent and quite outside the course of his employment, for which the employer is not responsible. In approaching this issue, the Industrial Tribunal applied tests which in summary are those set out in the oft quoted remarks found in Irving v The Post Office [1987] IRLR 289 at p.290 where Lord Justice Fox adopted the general statement of the law which is found in Salmond on Torts and approved by the Privy Council, in Canadian Pacific Railway v Lockhart [1942] AC 591, the passage cited at p.599 which is in these terms:
"It is clear that the master is responsible for acts actually authorised by him; for liability would exist in this case, even if the relation between the parties was merely one of agency, and not one of service at all. But a master, as opposed to the employer of an independent contractor, is liable even for the acts which he has not authorised, provided they are so connected with acts which he has authorised that they may rightly be regarded as modes - although improper modes - of doing them. In other words, a master is responsible not merely for what he authorises his servant to do, but also for the way in which he does it ...On the other hand, if the unauthorised and wrongful act of the servant is not so connected with the authorised act as to be a mode of doing it, but is an independent act, the master is not responsible: for in such case the servant is not acting in the course of his employment, but has gone outside of it".
We can find no error of law in the way in which the Industrial Tribunal approached this case using this test which they set out in their reasons. It is in the nature of the finding of facts and decisions upon them that those are matters entirely for this Industrial Tribunal.
Therefore we have to say, with reluctance, because we do wish to emphasise the way in which we condemn behaviour such as this, that we are unable to allow this appeal and we are bound on the Preliminary Hearing not to allow it to proceed because there is no point of law raised. For that reason this appeal must be dismissed.