United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 683_93_0405

Appeal No. EAT/683/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 4th May 1994

Before

THE HONOURABLE MR JUSTICE MUMMERY (PRESIDENT)

MR J D DALY

MR T C THOMAS CBE

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MISS A STEWART          APPELLANT

CLEVELAND GUEST (ENGINEERING) LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant Ms T GILL

(of Counsel)

Vereena Jones

Solicitor

Equal Opportunities Commission

Overseas House

Quay Street

MANCHESTER M3 3HN

For the Respondents NO APPEARANCE BY OR REPRESENTATION ON BEHALF OF RESPONDENTS


 


MR JUSTICE MUMMERY (PRESIDENT) This is an appeal from the decision of the Industrial Tribunal held at Manchester on 3rd March and 26th April 1993. For full Reasons notified to the parties on 21st July 1993, the Tribunal unanimously decided that the Respondents, Cleveland Guest (Engineering) Ltd ("the Company") did not discriminate against the Applicant, Miss Annette Stewart ("Miss Stewart") on the ground of her sex in the course of her employment

"...by subjecting her to a detriment, namely by continuing to permit the display of pictures of partially clothed and nude women in her workplace when they knew that the display was offensive to her or by failing to deal with her complaints properly or at all."

Miss Stewart was dissatisfied with that decision and appealed, with the support of the Equal Opportunities Commission, by a Notice of Appeal dated 16th August 1993. The only grounds of appeal pursued at the hearing were that the Industrial Tribunal had misunderstood or misapplied to the facts of the case the decision of the Court of Session in Porcelli v. Strathclyde Regional Council [1986] ICR 564 and that the decision of the Tribunal dismissing Miss Stewart's complaint under the Sex Discrimination Act 1975 ("the 1975 Act") was perverse in the sense that no reasonable Tribunal, acting on the facts found and in accordance with the law, would reach that decision.

Miss Stewart argued her case in person before the Industrial Tribunal. On this appeal Miss Stewart had the benefit of representation by Ms Gill. That representation was also of benefit to this Tribunal since, with the assistance of a well structured outline argument, Ms Gill presented the case with care and skill. Unfortunately, this Tribunal suffered from the disadvantage that the Company chose not to appear or be represented. We have not, therefore, had the advantage of hearing argument against Ms Gill's submissions. The extent of that disadvantage can only be fully appreciated by those who sit daily deciding applications and appeals which, in this area of law, are sometimes novel and difficult.

The Company did not pursue its own appeal against the decision reached by the Industrial Tribunal at the same hearing that Miss Stewart was unfairly dismissed. We were informed by Ms Gill that the reason for the Company's loss of interest and failure to participate further in these proceedings is that it has gone into Receivership. There has been a further hearing on remedies at which, we are told, Miss Stewart was awarded £11,000 for unfair dismissal.

In these circumstances this appeal is solely concerned with a short, but by no means easy, point on sex discrimination.

The Law

The relevant law is contained in three sections of the 1975 Act and in one judicial decision.

Section 1(1)(a) of the 1975 Act provides that -

"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."

By virtue of S.5(3) a comparison of the cases of persons of different sex under S.1(1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.

Discrimination in the employment field is dealt with in Part II of the 1975 Act. By virtue of S.6(2)(b) 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

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

It is unnecessary to refer to any of the provisions relating to indirect discrimination since that point has not been pursued as a ground of appeal.

All the words used in the provisions quoted are ordinary English words. They are not terms of art. They are not given any special statutory meaning by the interpretation section in the 1975 Act.

The only authority cited on the interpretation of these provisions is the decision of the Court of Session in Porcelli v. Strathclyde Regional Council (supra). In that case, as in this case, there were complaints of acts of sexual harassment of a woman by fellow male employees at work. On the complaint against the employers of unlawful discrimination on the ground of sex contrary to S.1(1)(a) and S.6(2)(b) the Industrial Tribunal found the conduct of the male employees subjected the applicant to a detriment, but rejected the complaint of sex discrimination on the grounds that it could not be said that the employers, through the male employees, had treated the woman employee less favourably than they would have treated a man within the meaning of S.1(1)(a). The applicant successfully appealed against that decision to the Employment Appeal Tribunal. The employers unsuccessfully appealed against the decision of the EAT to the Court of Session. Ms Gill submitted that an important similarity between that case and this case is that the Industrial Tribunal accepted Miss Stewart's allegations that she had been subjected to detriment, but rejected the allegation that the Company had discriminated against her by treating her less favourably than it would have treated a man in the same circumstances.

The three judgments in Porcelli contain an illuminating analysis of the relevant provisions of the 1975 Act. The following points on the interpretation of the provisions are relevant to the present case.

(1) In a case of alleged sexual harassment the relevant question, in statutory terms, is

"Was the applicant less favourably treated on the ground of her sex than a man was or would have been treated?"

As Lord Brand observed at p.576C

"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."

(2) That primary question can be helpfully broken down into three separate but inter- related elements.

(a) Treatment

What was the treatment meted out to the Applicant?

(b) Comparator

Was the treatment meted out to the Applicant less favourable than was or would have been meted out to a man in a similar position to her?

(c) Sex

Was the treatment, or any material part of it, meted out to the Applicant less favourable on the ground of her sex ie, "because she was a woman"?

See Lord Grieve at p.572 E-H. Thus,

"... 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 S.1(1)(a). See Lord Brand at p.576 F-G.

(3) The provisions are concerned with less favourable treatment on the ground of sex, not with the motive or objective of the person responsible for the treatment. As the Lord President observed at p.569 D-E

"... Although in some cases it would be obvious that there is a sex related purpose in the mind of a person who indulges in unwanted and objectionable sexual overtures to a woman or exposes her to offensive sexual jokes or observations that is not this case. But it does not follow that because the campaign pursued against the applicant as a whole had no sex relative motive or objective, the treatment of the applicant ... which was of the nature of "sexual harassment" is not to be regarded as having been "on the ground of her sex" within the meaning of section 1(1)(a)."

The Facts

The decision of the Industrial Tribunal examines Miss Stewart's complaints with conscientious thoroughness. It is not necessary to repeat the details of the decision.

It was not in dispute that Miss Stewart was employed by the Company at an establishment in Great Britain, namely, a factory which manufactured aeroplane parts. The Company employed between 130 and 140 people, including about 20 women. Miss Stewart was employed in the Inspection Department as an inspector from November 1989 until her dismissal on 2nd March 1992.

The Tribunal accepted Miss Stewart's complaint that the Company had, through its male employees, subjected her to detriment within the meaning of S.6(2)(b) of the 1975 Act, but rejected her complaint of discrimination. On this appeal Ms Gill argued that the conclusion on detriment was a correct finding of fact on which she relies and which has not been challenged by the Company, but asserts that the conclusion on discrimination was perverse.

The detriment relied upon took two forms.

(1) Miss Stewart had to work in areas of the workplace where fellow male employees displayed pictures of naked and semi-naked women which she genuinely and reasonably found offensive.

(2) When Miss Stewart made a complaint about the display of the pictures to the management of the Company, they failed

(a) to deal with the complaint properly or within a reasonable time; and

(b) to deal with the hostility to and ridicule of Miss Stewart by the others when they knew about her complaint.

None of those matters is in dispute on this appeal. Those heads of detriment constitute a contravention of the 1975 Act, however, only if they involved discrimination. The Tribunal rejected the complaint of direct discrimination on the ground that Miss Stewart had not established that the Company had treated her less favourably than they had treated or would treat a man. The decision of the Tribunal on this point may be summarised as follows.

(1) Display of pictures The display of the pictures was "neutral". The Tribunal said

"A man might well find this sort of display as offensive as the applicant did ... We are driven to the conclusion that the nature of the treatment by way of display of the pictures would have been the same to men and women."

(2) Treatment of complaint As regards the Company's treatment of Miss Stewart's complaint about the display of the pictures, the Tribunal concluded that the Company "would have treated a man just as badly whether he was complaining about the display of nude women or nude men." There was, therefore, no question of less favourable treatment of Miss Stewart on the ground of her sex.

The Appellant's Submissions

In support of the Appeal Ms Gill made the following submissions on behalf of Miss Stewart.

(1) Findings of Fact

The Industrial Tribunal made many findings of fact relevant to the complaint of sex discrimination. Miss Stewart worked in a predominantly male environment. The Company allowed the male employees to display calendars and other pictures of naked or semi-naked women all around the factory and even encouraged this practice by distributing calendars of that kind for display. Apart from an isolated retaliatory display by Miss Stewart of a calendar with pictures of naked or semi-naked men, there was no similar practice for the display of such pictures of men. The "culture" or attitude of mind prevalent in the Company's workplace was illustrated by evidence of incidents involving assaults, ridicule and suggestive remarks directed at Miss Stewart, though not the subject of the sex discrimination proceedings. Her complaint to the management of the Company was that she believed that photographs of this kind influenced the attitude and behaviour of men towards women by portraying women as playthings for men. Her complaint to management, coupled with a request for the discreet removal of the pictures, was treated by the Company's works manager and managing director as so trivial as to be not even worth reply. Even after further complaints based on sex discrimination, the works manager refused to accept that Miss Stewart had a genuine complaint. Her feelings were so strong on the matter that she became upset and was away from work suffering from depression. Miss Stewart went to her Union and the convenor raised a complaint on her behalf. The Company then took the material down, but no explanation was given to the workforce as to why the pictures were being taken down. Some of the women employees went to the works manager and said that they had no objection to the pictures. It became known that Miss Stewart had caused the removal of the pictures with the result that there was so much hostility to her that she resigned fearing victimisation if she returned to work. In reply to her letter of resignation the managing director denied that the pictures were sexually explicit or highly offensive and stated that the Company believed that there was nothing wrong with the pictures on display.

(2) Tribunal Conclusions on Discrimination

On those facts the Tribunal came to the conclusion that Miss Stewart genuinely found the display of the pictures offensive and that she was reasonable in her complaint. She suffered a detriment. The Company failed to deal with her legitimate complaint properly within a reasonable period and failed to deal with the hostility to and ridicule of her by others when they knew about it. The conditions in the workplace that had prevailed over a number of years tended to be suggestive of the treatment of women as sex objects, not as people. Management had encouraged a general ethos that was male oriented.

On the other hand, the Tribunal found that the display of pictures was not aimed at women or a particular woman. No man had complained of the display. In an important passage in paragraph 37 of the Decision the Tribunal stated -

"... We come to the conclusion that the display itself was neutral. A man might well find this sort of display as offensive as the applicant did. ..."

The Tribunal therefore concluded that the treatment by way of display of the pictures would have been the same to men and women. In paragraph 40 of the Decision the Tribunal dealt with the treatment of Miss Stewart's complaints about the display of pictures and concluded that the Company "would have treated a man just as badly whether he was complaining about the display of nude women or nude men." For all those reasons the Tribunal held in paragraph 43 of its decision that the Company was not liable for any discrimination in relation to the general display of the pictures.

(3) Perversity

It was argued that the Tribunal erred in law in finding that the treatment of Miss Stewart was not less favourable to her on the ground of her sex. Reference was made to the EC Commission Code of Practice on sexual harassment which includes, in the range of behaviour which constitutes sexual harassment, "conduct which creates an intimidating, hostile or humiliating working environment." (paragraph 2). It was argued that it was perverse of the Tribunal to conclude that the display of pictures was not aimed at women and was sexually neutral. The display was of women in a sexually explicit fashion in a workplace where most of the workers were men and where there was a prevalent attitude of the men epitomised by remarks and conduct which treated women as sex objects. The display was "gender specific", operating in a "gender specific environment" where women, not men, were exposed to the treatment complained of by Miss Stewart.

It was also perverse of the Tribunal to conclude that a man might well find this sort of display as offensive as Miss Stewart did. A man's objection to such a display would be based on other grounds (eg. moral grounds), not on the ground of his sex. As the pictures depicted women, and not men, a man, even one who objected to the pictures, would not have found the pictures offensive in the same way as Miss Stewart did. The display was not in an environment where men were in the minority nor in an environment where men, as against women, were subjected to suggestive remarks. The true position was that, in the words of Lord Brand in Porcelli v. Strathclyde Council (supra) at p.576F, this form of treatment was unfavourable to a woman because she was more vulnerable to it than a man was. The conduct of the Company fell within the definition of sexual harassment contained in paragraph 2 of the EC Code of Practice as "unwanted conduct of a sexual nature or other conduct based on sex affecting the dignity of women and men at work." "The essential characteristics of sexual harassment is that it is unwanted by the recipient and that it is for each individual to determine what behaviour is acceptable to them and what they regard as offensive." The behaviour permitted and encouraged by the Company was unacceptable to Miss Stewart. She made her views known to the Company. The Company failed to accept that her complaint was other than trivial. The Company allowed the treatment to continue until a complaint was received from the Union. The continuance of the treatment after Miss Stewart's complaint constituted sexual harassment.

Finally, the conclusion that a man would have been treated as badly as Miss Stewart if he had complained about the display of nude women did not determine the issue whether the Company treated Miss Stewart less favourably than they treated a man by the display of pictures. If the display of the pictures was less favourable to Miss Stewart on the ground of her sex, the fact that a man who complained of the display would be treated the same as Miss Stewart was irrelevant to determining whether, in respect of the display, the Company discriminated against Miss Stewart.

Although the other acts of individual employees complained of by Miss Stewart were held not to be in the course of employment of the employees concerned, they all formed part of the prevalent attitude in the workplace constituting a hostile working environment for women.

For all those reasons Ms Gill submitted that this Tribunal should reverse the decision of the Tribunal, find that there had been discrimination against Miss Stewart on the ground of her sex and remit the matter to the Industrial Tribunal for a decision on remedy.

Conclusions

We have reached the conclusion, after careful consideration of Ms Gill's arguments, that no error of law on the part of the Industrial Tribunal has been demonstrated. In the words of paragraph 2 of Ms Gill's Skeleton Argument the main issue in this appeal is whether the display of the pictures of women "in the circumstances of this case constituted less favourable treatment of the appellant on the ground of her sex." It cannot be stated too emphatically that the decision in every case of this kind must turn on its particular circumstances. It is important to state what this case does not decide. The decision to dismiss this appeal does not mean that it is never an act of sex discrimination for a company to allow its male employees to display pictures of that kind in the workplace. A decision to allow this appeal would not mean that such an employer would in every such case be liable for sex discrimination. The crucial point is to clarify the legal position by stating that whether or not there has been less favourable treatment of a woman on the ground of her sex must depend upon the particular facts of every case.

The reasons for dismissing this appeal are briefly as follows:

(1) The Industrial Tribunal correctly directed itself on the relevant law. Reference was made to the case of Porcelli. The Tribunal correctly directed itself to the relevant factors identified in that decision: the Tribunal identified the treatment as continuing to permit the display of the pictures and failing to deal with Miss Stewart's complaint properly. The Tribunal asked whether that treatment was less favourable to Miss Stewart than it was or would have been to a man. It held that it was not.

(2) Whenever an appeal is based on the perversity ground, this Tribunal must be extremely cautious not to conclude that the decision of the Industrial Tribunal is flawed because the Appeal Tribunal would have reached a different conclusion on the evidence or thinks that another Industrial Tribunal would have reached a different conclusion on the evidence. An appeal should not be allowed on this ground simply because the Employment Appeal Tribunal disagrees with the Industrial Tribunal as to the justice of the result, the merits of the case or the interpretation of the facts. This Tribunal should only interfere with the decision of the Industrial Tribunal where the conclusion of that Tribunal on the evidence before it is "irrational", "offends reason", "is certainly wrong" or "is very clearly wrong" or "must be wrong" or "is plainly wrong" or "is not a permissible option" or "is fundamentally wrong" or "is outrageous" or "makes absolutely no sense" or "flies in the face of properly informed logic". This variety of phraseology is taken from a number of well-known cases which describe the circumstances in which this Tribunal (and higher Courts) have characterised perversity. The result is that it is rare or exceptional for an appeal to succeed on the grounds of perversity. The reason why it is a heavy burden to discharge is that it has been recognised by those with wide experience and practical wisdom that there are many factual situations arising in the field of industrial relations, including sex discrimination, in which different conclusions may be reached by different tribunals, all within the realm of reasonableness. It is an area in which there may be no "right answer". The consequence of this approach, also approved in cases of high authority, is that it is not appropriate or fruitful to subject the language of the decision of the Industrial Tribunal to "meticulous criticism" or "detailed analysis" or to trawl through it with a "fine tooth comb". What matters is the substance of the Tribunal's decision, looked at "broadly and fairly" to see if the reasons given for the decision are sufficiently expressed to inform the parties as to why they won or lost the case and to enable their advisers to identify an error of law that may have occurred in reaching the conclusion. Viewed in that way, the decision of the Industrial Tribunal is not perverse.

(3) We recognise that in this area no one is better placed to make a decision on the facts of a particular case than the Industrial Tribunal. It heard evidence from the witnesses, saw the material which Miss Stewart found to be offensive and considered the detailed arguments on the law and the facts. There is, of course, room for disagreement among different groups of people, such as Tribunals, as to what is or is not less favourable treatment and as to the extent to which women in the workplace are vulnerable to such treatment.

A lesson to be learnt from this case is that it is crucial that complaints of the kind made by Miss Stewart are not treated as trivial. They should be taken up, investigated and dealt with in a sympathetic and sensible fashion. In most case, if not all, it should be possible, by a combination of sensitivity and commonsense, so to arrange matters that the reasonable wishes of all those concerned are accommodated. If they cannot be and the result is proceedings of this kind, it is for the Tribunal, as the "industrial jury", to hear all the evidence and decide the case. This Tribunal only has jurisdiction to determine an appeal against the decision of the Tribunal if there is an error of law. If the error of law relied upon is the argument that the Industrial Tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the facts and law, would have reached, an overwhelming case to that effect must be made out. That case has not been made out here. The appeal will, therefore, be dismissed.