United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 671_94_1912

Appeal No. EAT/671/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 19 December 1994

THE HONOURABLE MR JUSTICE HOLLAND

MR D G DAVIES

DR D GRIEVES CBE

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BRITISH RAILWAYS BOARD          APPELLANTS

MR H P JONES          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR W NORRIS

(of Counsel)

The Solicitor

British Railways Board

Macmillan House

PO Box 1016

Paddington Station

London W2 1YG

For the Respondent MR R BLOOM

(Solicitor)

Messrs Jacksons

1-15 Queens Square

Middlesbrough

Cleveland TS2 1AL


 


MR JUSTICE HOLLAND: We have before us an appeal by the employers from a decision of an Industrial Tribunal sitting at Middlesbrough on 15 November 1993 and 4 May 1994.

The finding of that Tribunal was:

"The unanimous decision of the Tribunal is that the Applicant was unfairly dismissed."

The essential facts giving rise to this matter are short and somewhat distressing. The Applicant, Mr Jones, was the Station supervisor at Middlesbrough. He had been in the employ of the Appellants from 1974 and held that position at the time of his dismissal on 21 July 1992.

The circumstances giving rise to his dismissal start on 11 June 1992 when an 18-year-old trainee, also an employee of the Appellants, Elaine Hubbard, made a complaint to the retail manager, Mr Mark Driver, which complaint was to the effect that the Applicant had sexually harassed her. Having had the complaint made to him orally, Mr Driver took from Miss Hubbard a statement. That statement reads as follows:

"Approximately June 1991 - possibly earlier - Despatch office at Middlesbrough

I had finished work and was going back at approximately 2130 hours to pick up belongings from my locker. I went into the Supervisors office first to get the key. Instead of the key being given to me, Peter came and let me in himself and followed me in, the door then slammed shut (locked). I went over to my locker, bent down to collect my belongings and immediately he was behind me with his arms around my waist. He pulled me towards him from behind, as I struggled to get away I ended up facing him in the same position because he wouldn't let go. He started to say how nice my hair was and started to play with it. When I did get free, I moved to the opposite end of the room to put my belongings into my bag. He followed me down and again grabbed me by the waist in front, pushing his penis against my leg. I told him to get off as my boyfriend was waiting in the car. I then walked to the door and in order to open the door which has a Yale Lock, I had to put my belongings on the floor. Whilst doing so he was behind me again with his arms around me pulling me on to him. I left the room in a state and got into the car where I told my boyfriend what had happened and stopped him from going to see Peter.

Approximately March/April - Supervisors Office

Peter started talking to me and walking towards me at the same time. I started stepping backwards, ending up being backed into a corner where on finishing his conversation, instead of turning and walking away he pushed against me unnecessarily before turning and walking away.

As well as physical incidents, verbal remarks are made:-

Don't you think I'm fit for my age, shall I show you how fit I am.

Feel my muscles, aren't they good for my age.

He also often comments on how I look."

The subsequent chronology was as follows. On 12 June, Mr Driver had an interview with the Applicant. Unhappily, although notes were taken of that interview, those notes were subsequently lost. The end result, however, was that a letter was sent by Mr Driver to the Applicant in these terms:

"GROSS MISCONDUCT

Following your interview today you are charged with gross misconduct under Section A of the Rule Book Clause 2.1. following complaints of sexual harassment and sexual assault.

You must report to the Retail Manager's Office, Room 18 of these offices on Tuesday, 16th June at 1100 hours. You will be placed under investigatory suspension, on standard rate of pay, until this time.

You may be accompanied by a spokesman at the hearing and you may also call witnesses."

In the event that disciplinary hearing started on 24 June. At the hearing, the Applicant was represented by the Divisional Secretary of the RMT, Mr McGregor. The hearing started with Mr Driver reading out the statement of Miss Hubbard and then inviting Mr McGregor to make his submissions. Mr McGregor, on behalf of the Applicant, registered an immediate denial that any sexual assault or harassment had taken place. He then went on to take a further point. That further point was effectively as follows: given that Miss Hubbard had put the scene of the assault as an office that had been locked until, she said, the Applicant unlocked it, Mr McGregor raised an issue as to whether the Applicant was ever in a position to open the door of that office at that time. It would seem, having regard to the notes taken of this hearing, that the initial point was as follows: it was said that the door to the office required opening, first, by means of a numerical combination being applied to the lock and, secondly, by use of a Yale key. The Applicant was saying that whereas he had a key, he did not know the combination of numbers. Given the force with which this point was taken, Mr Driver decided to adjourn the hearing in order to carry out further investigation. That investigation was to be focused on this matter of the opening of the door. It was further to be focused upon the circumstances in which Miss Hubbard was still at the premises at 21.30 hours. Mr Driver had already discerned a problem in resolving the first of the two issues in that it seemed that during the intervening period there had been a change in the arrangements at Middlesbrough Station and an immediate practical test of the door in question was not open to him.

On 20 July 1992, this hearing was reconvened. Mr Driver opened this adjourned hearing by recording that he had adjourned this matter previously in order to answer two questions:

"1. What reason did the lady in question have to be in Middlesbrough Station at 21.30 hours.

2. Why was there a need for Mr Jones to accompany her to the Despatch Office."

Mr Driver then told the meeting:

"... that subsequently he had spoken to the lady who had stated that she had been at work earlier in the day, and couldn't get into the Despatch Office and came back later (she was a Rail Trainee at this time).

Mr Driver had also spoken to Mr Gibson, a Supervisor at Middlesbrough who had confirmed there was a numeric lock and a yale lock and that after normal office hours it required two people to enter.

This confirmed what Mr Jones had said at the beginning of the hearing held on 24th June 1992."

The balance of that hearing on that day was substantially focused upon what seemed to be a continuing issue, namely, the capacity of the Applicant at the material time to open this door. Reading the notes it would seem that there was a development in the position adopted by the Applicant so that he was now saying that he did not have a key for the door in question. The balance of that hearing centred on that issue and the notes record the conclusion to the matter in these terms:

"Following the recess, Mr Driver said he had listened carefully to what had been said, and had read back through the notes of the first hearing, he said although there was some doubt about the existence of a key, having spoken to a Supervisor a key did exist in the office. He saw no reason why the lady should lie, and felt the case against Mr Jones was proven. Mr Driver said his decision was to dismiss Mr Jones and that would take effect from today."

Pausing there, we interpose the observation that the hearing on both days had focused throughout upon the alleged initial incident, that was the incident of 1991 which was said to have taken place in the Despatch Office. There is no reference at all in the notes to any investigation into any alleged subsequent incident and we have every reason to think that the notes are accurate as to this feature.

We then return to the chronology. In the event the Applicant decided to take advantage of the appeal procedure that was available to him with the result that an appeal was heard at York on 21 July 1992 by Mr S K Baker, the retail manager. That appeal itself required an adjourned hearing, that in turn took place on 21 September 1992.

We need not follow the course of that appeal hearing, suffice it for us to note that it centred almost entirely upon the issue as to whether the Applicant, as supervisor, had a key for this door at the material time. In the end, Mr Baker, according to the note, found that he was satisfied that there was a key available in the supervisor's office. He was further satisfied that the alleged incident of 1991 had taken place and, in the result, the appeal was dismissed.

In those circumstances the Applicant made the complaint to the Industrial Tribunal alleging unfair dismissal. In its approach to the appeal, the Industrial Tribunal directed itself as to the appropriate law in paragraph 7 of its full reasons as provided to the parties on 7 June 1994. That paragraph reads:

"The Tribunal reminded itself that the appropriate approach in cases of this type is that set out in British Home Stores Ltd - v - Burchell 1978 IRLR379. The Tribunal also adopted the approach set out in the case of Iceland Frozen Foods Ltd - v - Jones 1982 IRLR439 namely that in applying Section 57(3) of the Employment Protection (Consolidation) Act 1978 the Tribunal must consider the reasonableness of the employer's conduct and not whether they the members of the Industrial Tribunal consider the dismissal to be fair. In judging the reasonableness of the employer's conduct an Industrial Tribunal must not substitute its decision as to what was the right course to adopt for that of the employer, and the Tribunal did not substitute its own view. The Tribunal acknowledged that there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view and another might reasonably take another. This was the approach which the Tribunal adopted."

It then went on to proceed as it perceived that it was directed to by British Home Stores Ltd v Burchell and, in particular, by a passage in the judgment of this Tribunal at 380. That reads:

"What the Tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the grounds of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating those three matters, we thin k, who must not be examined further. It is not relevant, as we think, that the Tribunal would itself have shared that view in those circumstances. It is not relevant, as we think, for the Tribunal to examine the quality of the material which the employer had before him, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being `sure' as it is now said more normally in a criminal context, or, to use the more old-fashioned term, such as to put the matter `beyond reasonable doubt'. The test, and the test all the way through, is reasonableness; and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion."

Here the Industrial Tribunal sought to apply that passage as follows:

"8 In applying the test set out in the case of British Homes Stores - v - Burchell the Tribunal asked itself the relevant questions:

(a) Did the Respondent have a genuine belief that the Applicant was guilty of the misconduct?

The Tribunal accepted that both Mr Driver and Mr Baker did have such a genuine belief.

(b) Were there reasonable grounds for such a belief?

The Tribunal considered that there were reasonable grounds for Mr Driver believing that the Applicant had been guilty of the misconduct from the account given by Elaine Hubbard and from her distressed state in recounting the incident.

There were reasonable grounds for Mr Driver to believe that in those circumstances Elaine Hubbard had not made up the account and no evidence of malice was found.

(c) Did the employer carry out as much investigation into the matter as was reasonable in all the circumstances of the case?

It was in relation to this aspect that the Tribunal did not consider that the Respondent had carried out a reasonable investigation."

The initial challenge made by Mr Norris on behalf of the Appellants centred upon this series of findings. His essential point was this: that there was what he described as a logical inconsistency. The matter is put very clearly in the relevant passage in the notice of appeal as follows:

"There is a clear logical inconsistency in this case in that the Industrial Tribunal found that Mr Driver and Mr Baker had reasonable grounds for a genuine belief that the Applicant was guilty of the misconduct ... but went on to find that no reasonable investigation had been conducted. This was a case where the only effect or value of an investigation would be in establishing whether there were or were not reasonable grounds of such belief as the investigator formed in relation to any allegation. The Industrial Tribunal could not therefore have decided that there were reasonable grounds for Mr Driver and Mr Baker's belief if they had not in fact carried out reasonable investigation before formulating their belief in the Applicant's guilt."

In developing these submissions before us, Mr Norris draws attention to the words cited from British Homes Stores Ltd v Burchell and particularly the words:

"at the stage at which he formed that belief on those grounds".

Thus it is, submits Mr Norris, given this logical inconsistency, there was a plain misdirection as to law. Further, or alternatively, the conclusions in terms of answers to the questions 2 and 3 were perverse, that is, they were answers that no reasonable tribunal, properly directing itself as to law, could arrive at upon the evidence put before it.

As to this submission by Mr Norris, this Tribunal has indeed been concerned with this passage that is cited and, in particular, as to the respective significance of the three questions that are posed. We say candidly that we have not found it easy to follow and apply that passage, notwithstanding that we recognize that it has been followed and approved, in particular, by the Court of Appeal, in W Weddel & Co Ltd v Tepper [1980] IRLR 96. That Court of Appeal approval inevitably means that, so far as it is material, it is binding upon us.

All that said, in the course of argument, we tried and failed, notwithstanding the help of Mr Norris, to think of factual circumstances which could give rise to differing answers to questions 2 and 3. If it is difficult to think of circumstances in which one answer could be given to question 2 and a different one to question 3, then we have difficulty, respectfully, in understanding why there are there two questions and not one.

In the result, however, we have reminded ourselves that this passage is not an end in itself but simply a guide to construing and applying s.57 Employment Protection (Consolidation) Act 1978 and we further remind ourselves that, during the years that have intervened since British Homes Stores Ltd v Burchell the scope of that section has been extensively considered in reported cases and, in the result, it may be easier to follow the section itself without having the assistance that otherwise might be provided by British Homes Stores Ltd v Burchell.

Certainly, in this case, what we propose to do is to test the approach of this Industrial Tribunal by reference, first, to its findings of fact and, secondly, by applying thereto the terms of s.57. If that course reveals the logical inconsistency that Mr Norris submits is there, then so be it, there was a misdirection. If, on the other hand, the findings of this Tribunal sit easily with s.57, then the matter falls to be resolved on the basis that that passage does not serve to guide us in the particular circumstances of this case.

Turning to s.57, the first concern is whether there were findings that sufficed to establish the requirements of s.57(1) (2) and (3). So far as material, they read:

"(1) In determining for the purposes of this Part whether the dismissal of an employee was fair or unfair, it shall be for the employer to show -

(a) what was the reason (or, if there was more than one, the principal reason for the dismissal, and

(b) that it was a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held.

(2) In subsection (1)(b) the reference to a reason falling within this subsection is a reference to a reason which -

...

(b) related to the conduct of the employee ...

(3) Where the employer has fulfilled the requirements of sub section (1), then ... the determination of the question whether the dismissal was fair or un fair, having regard to the reason shown by the employer, shall depend on whether [in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and that question shall be determined in accordance with equity and the substantial merits of the case.]"

Turning to the findings made by the Industrial Tribunal, it is common ground that those findings suffice to satisfy the requirements of subsections (1) and (2): the Appellants had shown what was the reason for the dismissal and that reason related to the conduct of this employee.

Thus far, there can be no complaint as to the directions given by the Tribunal for its approach to this matter.

One then turns to subsection (3) and as this Tribunal directed itself in the passage cited at paragraph 7. The concern raised by that subsection is as to whether dismissal was within the band of reasonable responses open to a reasonable employer. As to this, it is necessary to remember that this was a case in which there was a straight conflict of fact as between Miss Hubbard, on the one hand, and the Applicant on the other hand. Given, therefore, this initial dispute, it is manifest that dismissal could not be within the band of reasonable responses to the employee's conduct open to a reasonable employer without an investigation. Thus it is, by another route, one comes to the findings of the Tribunal in (b) and (c) and thus it is, we think, looking at the matter overall, this Tribunal correctly directed itself as to the appropriate approach, dealing specifically with 57(3), by way of its sustained response to the third question it perceived as posed by British Homes Stores Ltd v Burchell.

We are fortified in that approach by the way in which this Tribunal directed itself, by noting that having set out its answer to the third question, then in paragraph 9 of the reasons, it found as follows:

"Accordingly applying Section 57(3) of the 1978 Act and having regard to the reasons shown by the Respondent, the Respondent did not act reasonably in treating the allegation by Miss Hub bard as a sufficient reason for dismissing the Applicant, taking into account equity and the substantial merits of the case. Accordingly the dismissal was unfair."

In short, whereas Mr Norris is plainly able to point to what appears at first blush to be an inconsistency, reflecting either a misdirection or a perverse decision, in the event, moving away from the guidance given by the case, to s.57 itself, we are entirely satisfied that the requirements of that section, that is, of the law, were satisfied in the approach of the Industrial Tribunal to the facts that were put before it.

Mr Norris, in a conspicuously clear and vigorous address, then took up another line of argument in that he urged before us that the approach of the Industrial Tribunal was, for other reasons, perverse. He took two particular points. First, he submitted that in focusing solely upon the alleged incident of 1991 and in not considering the other matters complained of by Miss Hubbard in the initial statement, then the Tribunal had perversely narrowed the field of its inquiry so as to undermine irrevocably the whole of its finding. Second, he submitted that the Industrial Tribunal had failed to give appropriate weight to the assessment made by Mr Driver of the respective credibility of Miss Hubbard and the Applicant, an assessment which was entirely favourable to Miss Hubbard and hostile to the Applicant. In essence, he would put the matter rhetorically. Given that that assessment was made, given that that was an assessment he would submit was open to Mr Driver, in those circumstances, not only do you have the requirements of 57(1) and (2) satisfied but you also immediately have a fair dismissal as defined by 57(3).

Turning to those respective arguments and, in particular, to the first, this Tribunal would entirely agree that the allegations as to misconduct on the part of the Applicant with respect to the period after June 1991, were plainly important and, indeed, arguably more important for the purposes of a decision as to dismissal, than the initial incident itself but we note that that was not the way in which the matter was put to the Industrial Tribunal.

Doing the best we can to discern the way in which the matter was put to that Tribunal, it seems plain to us that the conduct relied upon for the purposes of s.57(2) was the incident of 1991 and did not embrace any subsequent activity on the part of the Applicant as might have been referred to by Miss Hubbard in her initial statement. It may well be, further, that this was no oversight by the experienced Counsel who appeared for the Appellants before the Industrial Tribunal but reflected a realization on his part that any dismissal that was based upon the subsequent conduct, could not be justified as fair by reference to s.57(3), given that there had been no apparent investigation at all into that aspect of the matter and given that it certainly had not come up as a topic at either the disciplinary hearing or the appeal. It may well be that he appreciated that he could only justify dismissal if it was focused upon the 1991 incident.

Thus it is that we are entirely satisfied that there is no criticism to be made of the Industrial Tribunal for focusing upon the early incident alone. The fact that they did so throws a very unhappy light upon the force of the investigation and serves, if anything, to underpin their decision that the investigation was so impaired that the dismissal became unfair.

Turning to his second point, it is plain that the assessment made by Mr Driver should have been a material matter in the conduct of this investigation and in the decision to dismiss, yet further in the decision to reject the appeal against dismissal. That said, it can only be in one factor and the unhappy feature of the investigation, as it appears in the documents before us, is that this became a very minor matter indeed, outweighed by what otherwise might appear as the peripheral issue, namely, the question as to whether or no the Applicant, as supervisor, had access to a key. One may comment that, if in the event, the matter had been dealt with purely on the basis of credibility, then that might have put some strength to this investigation, which it lacked given the fact that over a prolonged period of time, it progressed down another and quite different route, so as to seemingly come to a conclusion adverse to this Applicant. True it is that it was the Applicant's representative who raised this issue of the key but it was for the Respondents to conduct the disciplinary hearing and the appeal and to ensure that by both hearings there was before them sufficient material to make an assessment as to the appropriate response and it was not for the Applicant's representative, as it were, to dictate the parameters in which the matter fell to be considered.

Thus it is again that we cannot fault the Industrial Tribunal for not giving the prominence that is contended for with respect to the assessment made by Mr Driver of the respective credibility.

Thus it is, having given careful consideration to the arguments advanced by Mr Norris, we found ourselves driven to dismiss this appeal.

Before departing from this case, we would respectfully suggest that the Appellants would benefit from a reappraisal of the record of their own investigation as set out in pages 35-57 inclusive of our bundle, to see what lessons can be learned in order to guide other managers in their approach to the investigation of sexual harassment complaints and to disciplinary hearings based upon such. It is very easy for criticism to be made in hindsight but that criticism can be made constructive. Manifestly, Mr Driver found himself in a new and distressing situation as, presumably, did Mr Baker. Would they not have been helped to have guidance as to what to look for, what and how to investigate? We would suggest that an initial and continuing focus on the precise nature of the complaint and on the circumstances that caused the complaint to be made, would have prevented the investigation from being sidetracked by the essentially peripheral issue, namely, that relating to the key. We would suggest that taking a conscious step from the finding of fact to a decision to dismiss would have focused the mind on the position of this employee and the significance of whatever had been proved in the context of an otherwise unblemished 18-year record and on the potential for further like incidents if his employment continued.

These are no more than the early reactions of this Tribunal, following upon like criticisms made by the Industrial Tribunal. Careful deliberation by the Appellants could produce lasting and more pertinent guidance to help managers in this new and difficult area.

Our observations are for us reinforced by the passage in the Commission Code of Practice on Sexual Harassment of 27 November 1991, paragraph 5(b), sub-paragraph 4 of which reads:

"Investigations. It is important to ensure that internal investigations of any complaints are handled with sensitivity and with due respect for the rights of both the complainant and the alleged harasser. The investigation should be seen to be independent and objective. Those carrying out the investigation should not be connected with the allegation in any way and every effort should be made to resolve complaints speedily. Grievances should be handled promptly and the procedure should set a time limit within which complaints will be processed with due regard for any time limits set by national legislation for initiating a complaint through the legal system.

It is recommended as good practice that both the complainant and the alleged harasser have the right to be accompanied and/or represented, perhaps by a representative of their trade union or a friend or colleague; that the alleged harasser be given full details of the nature of the complaint and the opportunity to respond, and that strict confidentiality be maintained throughout any investigation into an allegation. Where it is necessary to interview witnesses, the importance of confidentiality should be emphasized.

It must be recognized that recounting the experience of sexual harassment is difficult and can damage the employee's dignity. Therefore, a complainant should not be required repeatedly to recount the events complained of where this is unnecessary.

The investigation should focus on the facts of the complaint and it is advisable for the employer to keep a complete record of all meetings and investigations."

Drawing attention to this passage, we acknowledge that we have had the advantage of perusing the Appellant's own policy on sexual harassment but our concern is to underline the supplemental help given by that passage to those concerned to giving effect to that policy. That supplemental help, supported by what lessons that can be learnt from this particular case, may serve to help others of the managers of the Appellants in dealing with this very unhappy problem, should it arise again.