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Cite as: [1994] UKEAT 785_92_1711

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BAILII case number: [1994] UKEAT 785_92_1711

Appeal No. EAT/785/92

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 17th November 1994

Judgment delivered on 14th February 1995

Before

THE HONOURABLE MR JUSTICE MUMMERY

MR J R CROSBY

MR D G DAVIES

MISS E A WATERS APPELLANT

THE COMMISSIONER OF POLICE OF THE METROPOLIS RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

APPEARANCES

For the Appellant MR R ALLEN

(of Counsel)

Messrs Barnett Sampson

Solicitors

30B Wimpole Street

LONDON W1M 7AE

For the Respondents MISS M CARSS-FRISK

(of Counsel)

The Solicitor

Metropolitan Police Service

New Scotland Yard

Broadway

LONDON SW1H 0BG

MR JUSTICE MUMMERY (PRESIDENT) This is an appeal against the Decision of the Industrial Tribunal held at London (South) on 11th August 1992. For Full Reasons notified to the parties on 17th September 1992 the Tribunal unanimously dismissed a complaint of sex discrimination contrary to the Sex Discrimination Act 1975 ("the 1975 Act") brought by Miss Eileen Waters, a woman police constable, against the Commissioner of Police of the Metropolis ("the Commissioner").

At the Tribunal hearing both parties were represented by Counsel. On the appeal new counsel, Mr Robin Allen, was instructed on behalf of Miss Waters to argue that the decision of the Tribunal was flawed by errors of law identified in the grounds set out in the Notice of Appeal dated 28th October 1992.

The main ground of appeal concerns the correct interpretation and combined effect of S.4(1)(d), S.6(2)(b) and S.41(1) of the 1975 Act in relation to a claim of victimisation. The precise terms, structure and context of the statutory provisions will be examined in detail later. All that need be said by way of introduction is that S.4 of the 1975 Act contains provisions designed to protect those who seek to enforce, rely on or promote the operation of the 1975 Act and to ensure that they are not deterred from doing those things by fear that they may be victimised for so doing. Section 4 makes it unlawful for a discriminator to treat a person less favourably than he treats or would treat other persons by reason that the person victimised has done one or more of a number protected acts: for example, bringing proceedings under the 1975 Act or giving evidence or information in connection with proceedings. As was pointed out in Cornelius v. The University College of Swansea [1987] IRLR 141 at 145, a complaint under S.4 is not one of discrimination on the grounds of sex, but of victimisation by reason of conduct of the type specified in the section.

The course of the proceedings

The unusual course of the proceedings before the Industrial Tribunal has generated a regrettable degree of misunderstanding, contention and grievance which should not be allowed to cloud the clear issues for decision on the appeal. The proceedings took the following course:

(1) Miss Waters presented an Originating Application as long ago as 26th September 1991. She stated her complaint as follows:

"Victimisation - removal of my active POLSA qualification on 1.7.91"

(The POLSA list contains the names of specially trained officers used in relation to important police searches for terrorist bombs and so on).

Miss Waters alleged that the "victimisation is part of ongoing harassment, which started in 1988 when I made formal allegations of assault against an officer of the Metropolitan Police Force".

(2) The Originating Application, which contained an inexplicable reference to the Race Relations Act, was amended and supplemented by particulars settled by counsel dated 5th July 1992. The particulars consisted of 13 paragraphs, the last of which stated

"(13) By reason of the matters aforesaid, the applicant has suffered victimisation, contrary to section 4(1)(d) of the Sex Discrimination Act 1975".

In the preceding paragraphs it was alleged that Miss Waters was employed by the Commissioner as a woman police constable; that by reason of the 1975 Act he was responsible for the actions of his employees/officers; that in the autumn of 1987, after she had completed her initial training as a police constable at Hendon Police College, she was posted to Harrow Police Station as a probationer police constable; that on 15th February 1988 she was seriously sexually assaulted by a male police officer of Harrow Road Police Station; that she reported the assault to three different police officers in February, March and April 1988 as well as to a welfare officer; that on 7th May 1988 she completed a crime sheet regarding the assault; and that she was interviewed about the assault by the Criminal Investigation Branch 2 and her injuries were photographed. She alleged

"6. ... no criminal proceedings or disciplinary proceedings have been instituted against the alleged perpetrator of the assault.

7. By reason of the matters aforesaid the applicant has alleged that the respondent and/or its servants or agents committed an act/acts which amounted to a contravention of section 6(2)(b) of the Sex Discrimination act 1975."

The rest of the particulars dealt with Miss Waters' transfer to Marylebone Police Station, to her passing the POLSA training course and to her removal from the POLSA list in July 1991. She was informed that her removal was on "medical grounds", but she alleged that she had no medical problems and that her removal "was due to her earlier allegation of sexual assault."

(3) The Commissioner's grounds for opposing the claim admitted the removal of Miss Waters' name from the POLSA list, but denied that Miss Waters was assaulted; or that he was liable for any such assault or for anything done by employees or officers which was not done in the course of employment of such employees or officers. It was alleged that the conclusion of an investigation by an internal enquiry was that the assault was unsubstantiated and that the CPS decided that criminal proceedings were not justified. The Commissioner denied that the decision to remove Miss Waters from the POLSA list was in any way related to the fact that she had made an allegation of sexual assault. The allegation of victimisation was denied.

(4) The hearing before the Industrial Tribunal was fixed for 11th August 1992. On the previous day the Commissioner's solicitor wrote to the Industrial Tribunal informing them that counsel for the Commissioner would be taking a preliminary point and asking the Tribunal to deal with that matter formally as a preliminary issue. The point was that the male officer, who was the subject of the allegation by Miss Waters, "was not acting in the course of his employment or in the execution of his duty at the time of or in relation to the alleged incident." It was asserted that, if that point was accepted, Miss Waters' case must fail. A copy of that letter was faxed to Miss Waters' counsel. Reference was made in a covering letter to the preparation of agreed bundles. Nothing was said in the letter about an agreed statement of facts.

The Tribunal hearing

At the Tribunal on 11th August counsel for the Commissioner produced to counsel for Miss Waters a typed draft of an agreed statement of facts "for the purpose of determining whether the acts of which the applicant complained would amount to contravention of the Sex Discrimination Act 1975." The draft was amended by agreement between counsel and handed to the Tribunal. It appears from the recital of agreed facts in the Full Reasons that counsel agreed further matters during the course of the hearing. As a result of the agreement between counsel no oral evidence was given to the Tribunal by either side.

After stating that an unsuccessful attempt was made by counsel for Miss Waters to strike out the Notice of Appearance which, in its amended form, was not received until 7th August 1992, the Tribunal recorded that counsel for the Commissioner asked the Tribunal to decide a preliminary point which, if successful, would enable the Tribunal to dispose of the case. Counsel for Miss Waters was stated to have agreed to that course. The Tribunal then set out the following facts as agreed by the parties.

(a) The Applicant joined the Force on 11th May 1987. She was posted to Harrow Road Police Station in October 1987.

(b) Whilst posted to Harrow Road Police Station, the Applicant lived at Robert Mark Section House, where she had a room. (In answer to a question from the Chairman, it was stated that the house in which she lived was owned by the Respondent, but she was not required to live in it).

(c) On Sunday 14th February 1988, the Applicant had come off duty at 2 p.m. and gone to her room. In the early hours of 15th February 1988, at about 2.30 a.m. a male police constable, who was also posted at Harrow Road Police Station, came to the Applicant in her room. The Applicant and the male PC decided to go for a walk together in Hyde Park, and then returned to the Section House.

(d) The assault(s) of which the Applicant complained is/are alleged to have taken place in the Applicant's room after the Applicant and the male PC returned from their walk in Hyde Park to the Applicant's room.

(e) Neither the Applicant nor the male PC had been on duty immediately prior to, or were on duty at the time of, the alleged assault(s). The PC had been off sick and the Applicant had had a rest day.

(f) There is nothing in the Applicant's or the PC's contract of employment which gives any extended meaning to the expression "on duty".

The Tribunal's Decision

On the basis of the agreed facts the Tribunal found in favour of the Commissioner and dismissed the complaint for the following reasons:-

(1) Miss Waters' complaint was of victimisation contrary to S.4(1)(d) ie she had made an allegation that the Commissioner had committed an act of discrimination contrary to S.6(2)(b) and that, by reason of that allegation, the Commissioner had treated her less favourably than he had treated or would treat other persons.

(2) In order to succeed Miss Waters had to show that she had alleged that the discriminator (the Commissioner) or any other person had committed an act which "would amount to a contravention of this Act".

(3) Her case was that in 1988 she alleged that she had been sexually assaulted by a male police officer. She had to show under S.6(2)(b) that the assault, if established, would amount to discrimination by the Commissioner by subjecting her to some detriment. Under S.41(1) of the 1975 Act she also had to show that the alleged act of assault was committed by the male police officer "in the course of his employment". If the alleged acts were not committed by the police officer in the course of his employment, Miss Waters had not alleged an act of discrimination by the Commissioner contrary to S.6(2)(b) and her complaint of victimisation had no legal basis.

(4) The alleged act was not committed in the course of the male police officer's employment. It took place in the middle of the night when both Miss Waters and the male police constable were off duty. The act was not committed at the constable's place of employment and, assuming it took place at all, it was deliberate, unauthorised and unlawful. In brief, the Commissioner could only be guilty of a contravention of the 1975 Act if he was vicariously liable for the alleged act. He was not vicariously liable. There was no allegation by Miss Waters, for the purposes of S.4(1)(d), that the Commissioner or any other person had "committed an act which would amount to a contravention of this Act."

The statutory provisions

The rival submissions on the appeal rested on three sections of the 1975 Act:-

1.Section 4(1) A person ("the discriminator") discriminates against another person ("the person victimised") in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has -

...

(d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act or give rise to a claim under the Equal Pay Act 1970,

or by reason that the discriminator knows the person victimised intends to do any of those things, or suspects the person victimised has done, or intends to do, any of them.

Subsection (1) does not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith.

2.Section 6(2) 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 -

(a) in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or

(b) by dismissing her or subjecting her to any other detriment.

3.Section 41(1) Anything done by a person in the course of his employment shall be treated for the purposes of this Act as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval.

The Appellant's submissions

The Notice of Appeal raised two main grounds developed by Mr Allen in oral argument and skeleton submissions:-

(1) The Industrial Tribunal misconstrued Miss Waters' case. In particular it had failed to consider whether the Commissioner's failure to take disciplinary or criminal proceedings against the male police officer would be a breach of the 1975 Act.

(2) The Tribunal misinterpreted S.4(1)(d) of the 1975 Act by wrongly requiring Miss Waters to demonstrate that her complaints were actually made out both in law and fact.

Misconstruction of the Appellant's case

Mr Allen pointed out that Miss Waters' case in the Originating Application was that her removal from the POLSA list was victimisation which occurred not only by reason of her allegation that she had suffered a serious sexual assault but also because she alleged that complaints made by her in relation to the assault were not acted upon by the Commissioner. The Tribunal's decision was based solely on the allegation of assault and wrongly disregarded the allegation that nothing had been done by the Commissioner about her complaint. The allegation in the Originating Application had never been abandoned. The Commissioner's failure to act on that complaint or his rejection of it was in the course of his employment and would, therefore, constitute the commission of an act by him which "would amount to a contravention of" the 1975 Act. Mr Allen also identified the danger in deciding, on the day of the hearing, that the preliminary issue procedure should be adopted and then proceeding to decide the difficult question whether an act was in the course of employment without a full enquiry into all the facts. As illustrated by the case of Irving v. Post Office [1987] IRLR 289, the question whether an act is outside the sphere of employment or is an unauthorised mode of doing an act which an employee is authorised to do may be difficult. Further, in consequence of adopting the preliminary issue procedure, the Tribunal had viewed the issue too narrowly, without a full appreciation of either the context in which the allegation was made or of the issues before it.

For the following reasons we reject Mr Allen's arguments as failing to disclose any error of law on the part of the Industrial Tribunal.

(1) Mr Allen accepted that, although, in his submission, the Tribunal's decision was wrong, there was no error of law on the part of the Tribunal in acting on the agreement of counsel that a preliminary issue should be decided on the basis of agreed facts and on the basis that the case would be determined in the Commissioner's favour if he were successful on that issue. Counsel had agreed that the issue was the construction of S.4(1)(d) and its application to the agreed facts.

(2) We agree with Mr Allen that there are dangers in the preliminary issue procedure. As the Tribunal is, subject to certain provisions, the master of its own procedure, it was not bound to act on the agreement of counsel. In cases which go to jurisdiction, such as disputes about time limits, it is appropriate to adopt a preliminary issue procedure, even if it involves taking evidence relevant to the main issues as well as to the preliminary issue. The preliminary issue procedure is less appropriate in cases where the isolation of a point of law or fact separates it from the context of the whole case and involves a risk of distorting the dispute, eg by restricting the scope of enquiry to such an extent that the Tribunal reaches a decision without a full appreciation of the case as a whole. There are dangers in parties agreeing facts and in the Industrial Tribunal acting on the basis of agreed facts. The risks are greater where one or both parties are unrepresented and fail to appreciate the significance of facts included in or excluded from the statement. The risks even exist where both parties are represented by counsel, especially where the facts are agreed hastily at the last minute on the day of the hearing. We suggest that it is preferable for facts to be agreed before the hearing, after both sides have had adequate time to consider the implications of the agreement.

In the present case the Tribunal had a discretion to proceed by way of preliminary issue and agreed facts. They were satisfied that the procedure and facts had been agreed by counsel. It was no part of Mr Allen's case that counsel in fact failed to reach an agreement or that Miss Waters' counsel had exceeded her authority in making the agreement or in omitting certain facts from the statement. In our view, there was no error of law on the part of the Tribunal in exercising its discretion to act on the basis agreed by counsel.

(3) Further, there was no error of law on the part of the Tribunal in failing to consider whether the Commissioner's failure to take disciplinary or criminal proceedings was a breach of the 1975 Act. That allegation was not an issue put before the Tribunal. Miss Waters' case in the Originating Application was that her removal from the POLSA list was due to her earlier allegations of sexual assault. It was not contended in the Originating Application that her removal from the POLSA list was due to an allegation made by her that the Commissioner had failed to act on her complaint. It is true that she contended that no criminal or disciplinary proceedings had been taken, but she did not contend in her Originating Application that she had been victimised by reason of an allegation of failure to institute proceedings. No such allegation or complaint was included in the agreed statement of facts on which the Tribunal was asked to decide the matter as a preliminary issue. As already explained, there was no error or law on the part of the Tribunal in deciding the case on the basis agreed by counsel.

The construction question

The context in which the construction question arises is that Miss Waters contends that her employer, the Commissioner, has discriminated against her by subjecting her to detriment (ie by removing her name from the POLSA list) and that he has done so because she alleged that he had committed an act which would amount to a contravention of the 1975 Act within the meaning of S.4(1)(d).

The structure and language of S.4(1)(d) raises two relevant questions:-

(1) What act did Miss Waters allege that the Commissioner had committed? and

(2) Would the act alleged to have been committed by the Commissioner amount to a contravention of the 1975 Act?

In our view, the Tribunal answered both questions and correctly interpreted and applied the Act to the agreed facts.

The answer to the first question is that, on the agreed facts, the only act which Miss Waters alleged that the Commissioner had committed was a deemed vicarious act. He was alleged to be the employer of and to be responsible for the actions of the male police officer accused of assaulting Miss Waters.

The answer to the second question is that that vicarious act would not amount to a contravention of the 1975 Act unless it was done by the police officer "in the course of his employment" within the meaning of S.41(1). It is only in those circumstances that, for the purposes of the 1975 Act, the act of the employee is treated as done by the employer, as well as by the employee. As the Tribunal decided that, on the agreed facts, the alleged assault was not done in the course of the police officer's employment, the Commissioner is not treated as having done that act. It follows that Miss Waters has not alleged that the Commissioner has committed an act which would amount to a contravention of the 1975 Act.

We note that her allegation that the male police officer had committed the assault does not fall within S.4(1)(d) because the assault by him, though it would be a serious criminal offence, if established, would not amount to a contravention of the 1975 Act. The fellow police officer was not Miss Waters' employer or in any other position in which he would be liable for discrimination in the employment field.

In brief, we accept the contention of the Commissioner that, in the case of an act allegedly committed by an employee, S.4(1)(d) of the 1975 Act only applies to a case where the act, if established, is one for which the employer would be vicariously liable and therefore treated as if the act of the employee had been done by the employer as well. It is only in those circumstances that there would be an act of the employer amounting to a contravention of the Act. For example, if the allegation made by the person victimised was that the assault had been committed on her by a person who was not and never had been an employee of the alleged discriminator, no question could arise of victimisation under S.4(1)(d).

The contrary submissions

Mr Allen argued for a contrary construction. He argued that S.4(1)(d) should be construed generously to the complainant and that the construction adopted by the Industrial Tribunal seriously undermined the purpose of the legislation. The Industrial Tribunal should have adopted a purposive approach, construed S.4(1) consistently with the purposes of the 1975 Act and, so far as it was possible to do so without distorting the language of that Act, in conformity with the provisions of the Equal Treatment Directive No.75/117. Those purposes include the promotion of equality of opportunity, the rendering of discrimination unlawful and the protection from victimisation of those who make bona fide complaints of a breach of the legislation. Section 4(1) should be construed in such a way as to protect complainants by reassuring them, at the point of the complaint, that they can confidently make a complaint or allegation without fear of adverse consequences or reprisals. At the point of complaint it is difficult for the complainant to know whether the allegation is or is not a protected act, especially if it turns upon such difficult legal concepts as to whether the act of an employee was or was not committed in the course of his employment.

Mr Allen made particular reference to the principle of equal treatment in Article 2.1 of the Directive to the effect that

"The principle of equal treatment shall mean that there shall be no discrimination whatsoever on grounds of sex either directly or indirectly ..."

He referred to Article 7 which provides that

"Member States shall take the necessary measure to protect employees against dismissal by the employer as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment."

Mr Allen emphasised the width of the words "within the undertaking" compared with the concept in the 1975 Act "in the course of employment".

The difficulty with these broad submissions is to know quite where they lead on the wording of S.4(1)(d). The section uses language which imposes a requirement that the act which the person victimised alleges has been committed by the discriminator is one which "would amount to a contravention of this Act". We are unable to find anything in the purpose of the Act or in the terms or purpose of the Directive or in any decision of the European Court of Justice which would entitle us to disregard that requirement. That requirement is that the act which the discriminator is alleged to have committed is an act of unlawful sex discrimination. The act alleged in this case was not one of unlawful sex discrimination, either by the Commissioner or by the alleged assailant. No point is taken in the Notice of Appeal or in argument on the appeal that the act of assault was one for which the Commissioner was vicariously liable under S.41(1).

As we understand Mr Allen's submissions, an allegation is a protected act within S.4(1)(d) if it is one that could properly be made by reference to the law and that the protection of that section should not be limited to "those who have got it all right" at the time when the allegation is made. That submission amounts to a substantial re-writing of the provisions which cannot be justified as statutory interpretation, even by reference to the terms of the Directive.

Conclusion

For all the reasons stated there was no error of law by the Industrial Tribunal. This appeal is dismissed.