United Kingdom Employment Appeal Tribunal

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Cite as: [1994] UKEAT 576_92_505, [1994] UKEAT 576_92_0505

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BAILII case number: [1994] UKEAT 576_92_0505

Appeal No. EAT/576/92

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 5 May 1994

Before

THE HONOURABLE MR JUSTICE MORISON

MRS T MARSLAND

MRS M E SUNDERLAND JP

(1) INSITU CLEANING CO LTD

APPELLANTS

MRS DOREEN HEADS RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

APPEARANCES

For the Appellants MR A SUTCLIFFE

(Advocacy Manager)

Peninsula Business

Services Ltd

Stamford House

361/365 Chapel Street

Manchester

M3 5JY

For the Respondent NO APPEARANCE BY OR REPRESENTATION ON

BEHALF OF THE RESPONDENT

MR JUSTICE MORISON: After a four day hearing before the Industrial tribunal held at Newcastle upon Tyne, Mrs Heads' complaints of unlawful sexual discrimination and of unfair dismissal were, respectively, upheld and dismissed. The complaint of unlawful discrimination was made both against the employee who did the act complained of and Mrs Heads' employers, namely a Mr Michael Brown and Insitu Cleaning Company Ltd. It was conceded before the Industrial Tribunal that if Mr Brown had discriminated against Mrs Head, their employers were vicariously liable for his acts: paragraph 5 of the Decision [Section 41(1) of the Sex Discrimination Act 1975]. In this Judgment we shall refer to Mrs Heads as the employee, Mr Brown as Brown and the company as the employers.

The Industrial Tribunal's Decision was entered in the Register on July 21 1992. On August 20 1992 Brown and the employers appealed; and by a cross appeal, the employee appealed against the rejection of her complaint of unfair dismissal.

The brief facts relevant to this judgment are as follows. The employee was employed by her employers since March 24 1986, as an Area supervisor, responsible for supervising contracts which the employers had obtained for the cleaning of leisure and commercial premises. At the relevant time she was 43 years of age, with three sons, one of whom was approximately the same age as Brown. The employers are a relatively large company engaged in the contract cleaning business with 1200 staff of whom 300 are full time and 800 are women. Brown is the son of two of the employers' four directors.

The employee said that on three previous occasions Brown had made grossly offensive remarks to her of a sexual nature and then on the fourth occasion, on April 3 1991 in the presence of a director and another employee he said 'Hiya big tits'. She found this remark very distressing and it made her eyes fill with tears and her face flush with embarrassment. It would appear that neither of the other two people present heard the remark, although the other employee remembered her complaint to him immediately afterwards and the state she was then in; and the director remembered that she had made a complaint to him shortly after he returned to the room. Brown categorically denied he had made any such remark. When tackled about it the next day by his co-director, Brown's reaction was 'very alarming since he is an aggressive man'; the co-director was also shocked and annoyed.

Because Brown disputed what was said, the employers thought it would be fair to ask the employee to invoke the grievance procedure. Not surprisingly she did not want to do this but preferred that Brown should be spoken to informally and warned as to his future behaviour. The parties fell out over this and on April 17 1991 Mrs Head tendered her resignation, which was accepted.

The Industrial Tribunal's conclusions may be summarised in this way:

."in the absence of any corroboration, either direct or indirect" they found that none of the complaints in relation to the first three incidents had been proved: paragraph 3(b)

.The remark attributed to Brown by the employee had been said. They preferred her evidence to his on this point, saying that

"...Brown was a poor witness who did not treat either the hearing or the allegation against him with the seriousness which we would have expected had he not made the remark." paragraph 6

.A single act of sexual harassment may constitute detriment for the purpose of section 6(2)(b) of the Act, Bracebridge Engineering Co v Darby (1990) IRLR 3 EAT, provided that it was sufficiently serious. Having reviewed all the circumstances, the Tribunal concluded that the single remark was sufficiently serious to constitute detriment and therefore discrimination, and they specifically referred to the age difference between the parties: paragraph 7.

.In the light of Brown's denial that he made the remark, he could not have been spoken to informally and warned as to his future conduct, as the employee had wanted; the correct procedure was that which the employers had urged the employee to take, namely to invoke the grievance procedure, which the employee had refused to do: paragraph 8.

.The reason for the employee's resignation was her employers' insistence that she used the formal grievance procedure; and the employers attitude in this respect was entirely proper and therefore there was no breach of contract by the employer and, therefore, her claim for constructive dismissal failed: paragraph 9.

The Industrial tribunal left over the question of remedy and, as the parties were unable to come to terms, the matter came before the same Tribunal who assessed compensation. By a Decision entered in the Register on December 5 1992, which is not the subject of an appeal by either party, the Industrial Tribunal awarded the employee £750 for injury to her feelings, the only head of damage claimed, apart from aggravated damages which was rejected in principle. In reaching their Decision the Tribunal said that

"the successful complaint was based on a single act of verbal harassment on 3 April which undoubtedly caused considerable distress to Mrs Heads at the time .... the injury to her feelings, though very real, was certainly short-lived."

The grounds of appeal are discursive and the skeleton argument in support not so much a skeleton more an overweight discourse. We distil from these documents the following points:

.The remark was not sex related and therefore could not amount to direct discrimination on the grounds of sex. It is said that a similar remark could have been made to a man, for example in relation to a balding head or beard.

.On the facts, the employee did not suffer any detriment within the meaning of the Act: The case of Bracebridge is to be distinguished.

.On the facts as found, the tribunal were perverse to conclude that the one incident was so serious that it could of itself amount to sexual harassment: we were referred to the TUC publication: "Sexual Harassment at Work": to the DOE's Guide for Employers on Sexual Harassment in the Workplace and to the European Commission's Recommendation and Code of Practice on Measures to Combat Sexual Harassment.

We have no hesitation in rejecting each of the grounds of appeal. the first ground seemed to us to be absurd. A remark by a man about a woman's breasts cannot sensibly be equated with a remark by a woman about a bald head or a beard. One is sexual the other is not.

Whether the employee suffered any detriment is largely a matter of fact for the tribunal. Detriment means no more than disadvantage. For the bosses' son to make a sexual remark to a female employee nearly twice his age was calculated to and did cause distress which no doubt was a mixture of rage, humiliation and genuine embarrassment. This is a form of bullying and is not acceptable in the workplace in any circumstances. The wrong done was compounded by Brown's status, the aggressive way he responded to the complaint and his arrogant and dismissive manner at the Industrial Tribunal. As the document from the European Commission makes clear, such conduct is likely to create an intimidating, hostile and humiliating work environment for the victim.

Whether a single act of verbal sexual harassment is sufficient to found a complaint is also a question of fact and degree. It seems to be the argument that because the Code refers to 'unwanted conduct' it cannot be said that a single act can ever amount to harassment because until done and rejected it cannot be said that the conduct is 'unwanted'. We regard this argument as specious. If it were correct it would mean that a man was always entitled to argue that every act of harassment was different from the first and that he was testing to see if it was unwanted: in other words it would amount to a licence for harassment. The evidence shows that what was said by Brown was unwanted. If intention were relevant, and it is not, any sensible adult would know that the remark made would be unwanted, unless there were very exceptional circumstances. The word 'unwanted' is the essentially the same as 'unwelcome' or 'uninvited'. No-one, other than a person used to indulging in loutish behaviour, could think that the remark made in this case was other than obviously unwanted.

Accordingly we reject the appeal.

As to the cross-appeal, whilst we have some considerable sympathy with Mrs Heads we are not minded to say that the cross appeal should succeed. The grievance procedure may well not have been the most appropriate, but that does not render the employers' insistence that it be followed a serious breach of the employee's contract.

On the assumption that the respondent company would wish to ensure that such an incident does not recur, the lay members of this Tribunal suggest:

.The respondents adopt a separate procedure which deals exclusively with complaints of sexual harassment.

.Such a procedure should contain an informal first step which will enable complaints to be dealt with sympathetically before matters get out of hand. The experience of the lay members is that many women just want the harassment to stop and are not concerned to have the offender disciplined.

.Any complaint should be dealt with 'from the perception of the person aggrieved'.

Finally, it seems to us that the company will have little chance of eradicating sexual harassment unless and until those in authority demonstrate a sensible and mature attitude to the problem. We all express the hope that the person who caused offence in this case can be educated to understand the nature of his misconduct.

Accordingly, both the appeal and cross-appeal are dismissed.