United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 146_93_1402

Appeal No. EAT/146/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 14th February 1994

Judgment delivered on 17th March 1994

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR D A C LAMBERT

MRS M E SUNDERLAND JP

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MRS M BOWLES          APPELLANT

(1) ROBERT KING

(2) ORIN ENGINEERING LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MISS RUTH DOWNING

(of Counsel)

Messrs Royce & Co

Solicitors

Tandridge House

High Street, Mayfield

East Sussex TN20 6AL

For the Respondents MR JONATHAN SWIFT

(of Counsel)

Messrs Southorns

Solicitors

Seymour House

The Courtyard

Denmark Street, Wokingham

Berkshire RG11 2BB


 


MR JUSTICE MUMMERY (PRESIDENT) Introduction This is an appeal from a decision of the Industrial Tribunal sitting at Reading on 30th and 31st March and 9th, 10th and 11th September 1992. Over those five days the Industrial Tribunal heard evidence from Mrs Marion Bowles and six witnesses in support of her claim of sex discrimination against Mr Robert King, a director of Orin Engineering Ltd by whom Mrs Bowles was employed in secretarial work from 14th December 1987 to 13th December 1990. The Industrial Tribunal also heard evidence from Mr King, his wife and five other witnesses challenging Mrs Bowles' allegation that she had been subjected to sexual harassment, victimisation and sex discrimination over the three year period of her employment.

For the Full Reasons expressed in its unanimous decision notified to the parties on 6th January 1993, the Industrial Tribunal rejected Mrs Bowles' complaint of sex discrimination. Mrs Bowles was dissatisfied with the decision and gave notice of appeal on 8th February 1993. The ground of her appeal, which has been ably presented by Miss Downing, with the support of a 39 page skeleton argument, is that the decision of the Industrial Tribunal was perverse in the sense discussed and analysed by this Tribunal in East Berkshire Health Authority v. Matadeen [1992] ICR 723 at 731-738. The crux of Miss Downing's submission was that this decision cannot stand because it so "offends reason" and is "so very clearly wrong" that no reasonable Tribunal could have reached it. The rejection of Mrs Bowles' claim was an impermissible option and her complaint should be remitted to a different Industrial Tribunal for a complete rehearing.

Before this Tribunal examines the findings of fact made by the Industrial Tribunal, in the light of the evidence before it and the relevant legal principles, a word of caution should be noted at this early stage. In the judgment in East Berkshire HA v. Matadeen (supra) Wood J said, in relation to perversity as a free-standing ground of appeal,

"It is likely to be a very rare occasion upon which the Appeal Tribunal can interfere on this ground and it should caution itself against so doing and in particular to be careful not merely to substitute its own view for that of the Industrial Tribunal." See p.737F.

It has been said in many cases that it is not a sufficient ground for allowing an appeal that the Appeal Tribunal would have reached a different conclusion on the facts reached by the fact-finding Tribunal.

On p.738D-F of the judgment Wood J. returned to the need for caution.

"I have cautioned the members against interfering with decisions of industrial tribunals. They cannot interfere merely because they disagree. They cannot interfere even if they feel strongly that the result is unjust, though in this latter case it may be that on a careful analysis of the true reason lying behind such a view is that the decision flies in the face of properly informed logic."

With those comments in mind, we now turn to examine the facts of this case, the course of the proceedings, the findings of the Tribunal and the submissions of the parties.

The Facts

Orin Engineering is a small company which carries on the business of staff consultancy, placing skilled personnel in employment. The company operates from Mr and Mrs King's home and employs four or five people, including Mr and Mrs King.

Mrs Bowles began her employment with the company on 14th December 1987. She did secretarial work. At the time when she took the job she was warned about Mr King's bawdy language. Mrs Bowles' complaint is that for the next three years she was subjected to a campaign of sexual harassment. It is unnecessary to examine the details of the complaint. In brief, the complaints are that between December 1987 and December 1989 Mrs Bowles was subjected to degrading comments by Mr King and to a sexual assault in the office. She and her two daughters went back to live with her husband from whom she was separated when it was learnt that he was suffering from terminal cancer. He died on 7th April 1990. On three occasions after that, in April, July and October 1990 Mrs Bowles alleges that she was sexually assaulted by Mr King. The last of the incidents in October 1990 occurred when she went to see Mr King about her salary increase. She alleged that he made a sexually offensive remark and several days later visited her house and made advances which she spurned. Her case is that Mr King finally appeared to accept that his attentions were unwelcome. Relations between them deteriorated. Mrs Bowles says that she was subjected to victimisation down to the date when she was dismissed on 13th December 1990. The unpleasantness and abuse continued after she left.

Mr King denies the allegations.

The Pleadings

Mrs Bowles made her allegations in a complaint presented to the Industrial Tribunal on 15th May 1991. She complained of both unfair dismissal and sex discrimination. Both complaints were out of time. The first point taken by Mr King in the Notice of Appearance dated 3rd July 1991 was that the application had been brought out of time. In addition, he stated in the Notice of Appearance that -

(1) Mrs Bowles was not dismissed, but had left her employment voluntarily, and

(2) Mrs Bowles misappropriated a cheque for £1,255.32 without his authority and had falsely asserted that the cheque was for three months' pay in lieu of notice.

The allegations of sex discrimination were denied.

The Industrial Tribunal decided the question of jurisdiction as a preliminary issue in July 1991. For reasons notified to the parties on 26th July 1991, the Tribunal unanimously decided that Mrs Bowles' complaints were made out of time; that, in the case of the unfair dismissal claim, it was reasonably practicable for Mrs Bowles to have presented her claim within the three months time limit; but that in the case of the complaint of sex discrimination, it was just and equitable to allow her claim to be heard.

The sex discrimination claim was heard by a differently constituted Industrial Tribunal which made the following findings of fact.

(1) Mrs Bowles did not misappropriate the cheque for £1,255.32. That cheque, which was drawn on the company's account with the Bank of Scotland and dated 13th December 1990, was paid to Mrs Bowles on termination of her employment. The Tribunal accepted her entire evidence on that point and rejected Mr King's allegation of misappropriation as "quite unjustified" and "unfounded".

(2) Mrs Bowles was dismissed from her employment by Mr King on 13th December 1990. The Tribunal rejected Mr King's contention that she had left of her own accord.

(3) As regards Mrs Bowles' allegations of degrading comments, the Tribunal found that Mr King's language was

"... broad and sometimes bawdy, that he addressed all his staff, male and female alike, in the same way."

(4) Mrs Bowles was warned about Mr King's language when she joined the firm. She came to accept it. The Tribunal stated

"She took part in the general relaxed atmosphere of the office as did the other members of staff."

(5) The Tribunal did not accept the allegation made by Mrs Bowles that Mr King had assaulted her in the office, by attempting "to paw" her.

(6) The Tribunal decided that, on the balance of probabilities, Mrs Bowles failed to make out her case on the three alleged sexual assaults by Mr King out of the office. The Tribunal commented that

"Mrs Bowles continued to work for Mr King's company and in his presence, up to 13th December 1990, and to join in staff outings and holidays and to within a month of the latter date, to have lunch with him on a regular basis."

"26. It is for the applicant to make out her case on a balance of probabilities and in our view she has failed to do so."

(7) In deciding that Mrs Bowles' claim for sex discrimination failed in respect of the three alleged assaults, the Tribunal commented on the evidence given by witnesses called by her, namely Mrs Farthing, Mr Dennis, Mrs Collins, Mr Hewitson and on written statements given by a Richard Backhouse and Louise McBarnet.

Submissions on behalf of Mrs Bowles

In her excellent argument on behalf of Mrs Bowles, Miss Downing accepted that claims of this kind depend on whether the complainant's evidence is accepted or rejected and that an appeal cannot be brought to this Tribunal solely on the basis that the Industrial Tribunal ought to have rejected evidence which it accepted. Miss Downing submitted that this case was not simply a question of deciding whether Mrs Bowles' evidence should be preferred to that of Mr King. She identified a number of other issues in the case relevant to the overall decision. The following detailed submissions were made by reference to the findings in the decision and to the relevant passages in the Chairman's Notes of Evidence.

(1) The Tribunal had no hesitation in rejecting Mr King's allegation that Mrs Bowles had misappropriated the cheque for £1,255. The allegation was made with no evidence to support it. The Tribunal also rejected Mr King's allegation that Mrs Bowles had not been dismissed, but left of her own accord. In these circumstances it was submitted that there had been a consistent and concerted attempt by Mr King to lie about the circumstances in which Mrs Bowles' employment by the company terminated. The evidence of Mr King and his witnesses on that point should, therefore, have been treated with caution insofar as that evidence related to the alleged acts of sexual harassment.

(2) Despite detailed evidence about the alleged acts of harassment occurring in the company's office prior to April 1990, the Industrial Tribunal never actually found as a fact whether or not sexually explicit remarks were made by Mr King directly to Mrs Bowles or not. In the absence of such a finding, the Tribunal was not in a position to put Mrs Bowles' complaints of sexual harassment in the proper context. Detailed criticisms were made of the particular facts highlighted in the part of the decision in which the Tribunal said it did not accept Mrs Bowles allegations that Mr King had attempted to paw her in the office: in particular, the reference to the small size of the room and the evidence of other witnesses that Mr King did not call Mrs Bowles or other female members of the staff to his desk for dictation. The approach of the Tribunal to the alleged incidents in the office was criticised as "unduly artificial". It was submitted that the Tribunal had considered the allegations "in isolation on a narrow band of the evidence". The Tribunal had not paid proper regard to the evidence of Mrs Bowles' witnesses about her complaint to them with respect to assaults after April 1990. In brief, it was submitted that it was perverse of the Tribunal to reject Mrs Bowles' complaints about the act of harassment before April 1990.

(3) As regards the acts of harassment alleged to have occurred outside the office after the death of Mr Bowles in April 1990, detailed reference was made to the Notes of Evidence given by various witnesses. It was accepted that the Tribunal ultimately had to weigh the veracity of Mrs Bowles' word against Mr King's. The overall criticism of this part of the decision was that the Tribunal had failed in its duty to make clear findings of fact, to give reasons for its decision and to explain to the party who had lost, Mrs Bowles, why she had lost. It was argued that it was unrealistic of the Tribunal to expect to find corroborative evidence of the actual advances and assaults. As regards the conflict of evidence, it was unsatisfactory for the Tribunal simply to say that Mrs Bowles failed to make out her case on a balance of probabilities. The Tribunal should have gone into more details to say expressly whether they believed her or not in respect of each detailed allegation of what Mr King had said and done. The Tribunal did not state why it considered it likely that Mrs Bowles had chosen to concoct the allegations. It was not simply a question of Mrs Bowles' evidence. There was oral evidence from four other witnesses called by her and evidence in witnesses statements. The submissions made detailed reference to the notes of the oral evidence. In summary, it was submitted that Mrs Bowles was able to produce to the Tribunal witnesses who confirmed that at least eight months before her employment terminated, she had made complaints similar to those included in her notice of application to the Tribunal. The witnesses who were called by her were respectable and largely disinterested. Miss Downing asked rhetorically "How could it be reasonable to reject their evidence out of hand?" It was perverse of the Tribunal to reject Mrs Bowles' evidence and that of her witnesses, unless the Tribunal concluded that she had set out to frame Mr King as early as April 1990 or had concluded that Mrs Bowles' witnesses colluded with her. The Tribunal had not made any such findings. How then could the Tribunal fail to find that it was more likely than not that Mr King had assaulted and harassed Mrs Bowles? The Tribunal ought to have found that those acts had taken place and that acts of harassment had also occurred prior to April 1990. The Tribunal had rigidly separated two series of events in a manner which was artificial and not conducive to a sensible or realistic approach to the evidence overall.

(4) In support of those detailed submissions Miss Downing referred to the duties of an Industrial Tribunal as described in the judgment of this Tribunal in British Gas Plc v. Sharma [1991] ICR 19 at pp.38 and 39. It was the duty of the Tribunal to look at the whole of the evidence in order to decide whether or not, on the balance of probabilities, the complainant has proved the case. As part of that process the Industrial Tribunal would need to find primary facts and draw inferences from them. Disputes about primary facts would have to be resolved by regard to questions of credibility, probability and all the circumstances of the case. In this case the Industrial Tribunal had failed in its essential duty of finding primary facts and drawing inferences from them. In those circumstances, it was perverse of the Tribunal to reject Mrs Bowles' claim.

(5) Finally, although the Industrial Tribunal found that Mr King's language was "broad and sometimes bawdy, addressed to all staff, male and female alike", the Tribunal failed to consider Mrs Bowles' entitlement to have her sensibilities treated separately from those of the office as a whole. As was observed by this Tribunal in Wileman v. Minilec Engineering Ltd [1988] ICR 318 at 326,

"... sexual remarks [made] to a number of people [have] to be looked at in the context of each person. All the people to whom they are made may regard them as wholly inoffensive; everyone else may regard them as offensive. Each individual then has the right, if the remarks are regarded as offensive, to treat them as an offence under the Sex Discrimination Act 1975."

This Tribunal agrees that remarks of the kind made by Mr King and described by the Tribunal as "broad and sometimes bawdy" may constitute serious sex discrimination and cause real detriment to the victim of that discrimination. There is a serious risk of that happening in a situation, such as this, where the complaints are made by an employee about the employer himself or someone in a position of responsibility. An employee may not be well placed to complain about the behaviour of the employer or immediate superior. The employee may be frightened of losing her job. In some cases she may be frightened of the person making the remarks. It is important to recognise, as was said in the case of Wileman at p.326G that

"... there will be situations in which no complaint is made and the matter is borne with increasing irritation and distress but borne because the applicant does not want to make a fuss."

Industrial Tribunals should, in such cases, be careful to investigate a situation in which a complainant may have been forced by circumstances to put up with discriminatory conduct without complaint.

The industrial members of this Tribunal consider that it is the indisputable responsibility of an employer to set professional standards, both in the operation of the business and the conduct and behaviour of the employees, one to another and as a whole. In businesses where small numbers of employees of both sexes work in close proximity to each other, good non-discriminatory practice should be positively encouraged as a company policy and by personal example of the senior executive.

The President agrees with those observations.

Conclusions

We have carefully considered the submissions made by Miss Downing. We intend no criticism when we say that her address and her written submissions would have been a first-class closing speech to the Industrial Tribunal at the hearing. However, as indicated earlier in this judgment, this Tribunal must be constantly on its guard against interfering with a decision of an Industrial Tribunal on the ground that it simply does not agree with the decision. It may be that if the members of this Tribunal had heard the case, the decision on the facts would have been different. There was evidence before the Tribunal on which it could have decided that Mr King had committed acts of sex discrimination. That is not, however, the question on this appeal. The question is whether, in rejecting Mrs Bowles' complaint, the Tribunal came to a conclusion which no reasonable Tribunal would have reached on the material before it. Does the Tribunal's decision offend reason? Is it an impermissible option?

In our judgment, the decision of the Tribunal was not perverse. There is no error of law on which an appeal lies to this Tribunal. The following points have led us to this conclusion.

(1) The question of sex discrimination was one of fact dependant on the credibility of the individual witnesses and the weight to be given to that evidence. The Industrial Tribunal, unlike this Tribunal, is in the unique position to decide those matters in its observation of the witnesses when they are examined and cross-examined. The Tribunal spent five days hearing evidence. The members of the Tribunal had the opportunity of seeing both Mrs Bowles and Mr King examined and cross-examined. They unanimously came to the conclusion that Mrs Bowles had failed to make out her case on sex discrimination.

(2) The criticism that the Tribunal did not deal in detail with the specific incidents of bawdy talk and sexual assaults must be seen in the overall context of the duty of a Tribunal in finding facts and stating reasons. As was stated by Lord Justice Eveleigh in Varndell v. Kearney & Trecker Marwin Ltd [1983] ICR 683 at 693, there is no duty on an Industrial Tribunal to analyse all the facts and arguments on each side, with reasons for rejecting the arguments of one side and reasons for accepting the facts relied on in support of the conclusion. It may be helpful for the Tribunal to give a summary of the evidence, but it is under no duty to recite the evidence in detail or to subject it to close analysis and make findings on each disputed question of fact. The duty of the Tribunal is to state the reasons for its decision with clear findings of the primary facts on which there has been a conflict of evidence and of the inferences drawn from them.

(3) The Tribunal made findings of fact in this case which are sufficiently clear and detailed to support the decision to reject Mrs Bowles' complaint. That complaint related solely to sex discrimination. She was not entitled to pursue the claim for unfair dismissal because that complaint was out of time. The outcome of the sex discrimination complaint depended essentially on whether the Tribunal accepted the evidence of Mrs Bowles or that of Mr King. The complaints were of three kinds - verbal harassment, physical harassment in the office and sex assaults out of the office after April 1990. The Tribunal came to clear findings of fact in relation to each set of allegations.

(a) As to verbal harassment, the Industrial Tribunal found that Mr King's language was broad and bawdy but that Mrs Bowles not only "came to accept it": "she took part in the general relaxed atmosphere of the office as did the other members of staff." There was evidence before the Tribunal to support this view, rather than the view that Mrs Bowles was frightened to complain of language which she found discriminatory and distressing.

(b) As to the allegations of physical harassment in the office, the Tribunal stated that it did not accept them. In our view, that is a clear statement of preference for the evidence of Mr King to the evidence of Mrs Bowles. In reaching such a conclusion, it is not necessary for the Tribunal to state in terms that it disbelieved Mrs Bowles on this point. It is sufficient if it says that it does not accept her evidence and therefore finds that, on the balance of probabilities, she has failed to make out her case.

(c) As to the more serious physical harassment outside the office, the evidence given by other witnesses was considered in detail. It is clear from paragraph 25 that the Industrial Tribunal took the view that, in considering whether or not to accept Mrs Bowles' allegations, it was influenced by the fact that she continued to work right up to 13th December 1990 in Mr King's presence and to join in staff outings and holidays and to have lunch with him regularly.

(4) As to the criticisms made of the Tribunal's treatment of the credibility of other witnesses, this is a matter within the exclusive province of the Industrial Tribunal. This Tribunal is in no position to say whether the Industrial Tribunal has made a sound assessment of the credibility of those witnesses. We have not seen them. In any event, none of those witnesses could give first-hand evidence of the acts which Mrs Bowles alleged had been committed by Mr King. In the end, it was always a question of who was to be believed - Mrs Bowles or Mr King. The Tribunal preferred the evidence of Mr King. We have been unable to detect any error of law or perversity in that conclusion.

(5) As to the submission that Mr King was guilty of verbal harassment and that the Industrial Tribunal had failed to consider whether that harassment was discriminatory and detrimental to Mrs Bowles, the Tribunal made a clear finding in paragraph 17 of its decision that Mrs Bowles took part in the "general relaxed atmosphere of the office". In our judgment, that is a clear enough indication that the Tribunal concluded, as a matter of fact, that Mrs Bowles was not discriminated against and did not suffer detriment by reason of Mr King's language.

For these reasons, the appeal is dismissed.