United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 382_95_0607

Appeal No. EAT/382/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 6 July 1995

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR D J JENKINS MBE

MR R N STRAKER

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MR S BROWN          APPELLANT

UNIVERSITY OF CENTRAL LANCASHIRE          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MS JOANNE WOODWARD

(Of Counsel)

Messrs Jeff Brailsford, Rimmer & Co

1 Cross Street

Preston

Lancashire

PR1 3LT


 


MR JUSTICE MUMMERY (PRESIDENT): This is the Preliminary Hearing of an appeal by Mr Simon Brown against the decision of the Industrial Tribunal held at Manchester on 12 and 13 September 1994 and 9, 10 and 11 January 1995. The Tribunal heard complaints by Mr Brown in an originating application presented on 8 October 1993, that he had been unfairly dismissed by the Respondents, University of Central Lancashire and that he was a victim of sex discrimination. The claims were contested by the University. Their defence was that he had been dismissed for gross misconduct. Sex discrimination was denied. In the full reasons notified to the parties on 13 February 1995, the Tribunal unanimously decided that Mr Brown's complaints under Section 63 of the Sex Discrimination Act and Section 67 of the Employment Protection Act should be dismissed and failed. They dismissed his complaint that he had been unfairly dismissed from his employment.

Mr Brown appealed against that decision by a Notice of Appeal served on 27 March. In his Notice of Appeal he claims that there were errors of law in the reasoning of the Tribunal. The purpose of the Preliminary Hearing is to decide whether the Notice of Appeal raises any point of law which is reasonably arguable. If it does not, then there is no point in the matter being pursued to a full hearing.

Ms Woodward appeared for Mr Brown, one has made a number of submissions as to why there were errors of law in dismissing his claims on both heads. In order to understand those submissions, it is necessary to examine the findings of fact made by the Tribunal and at the legal directions contained in the decision, which they applied to those facts. The facts found by the Tribunal after a hearing over five days were these: Mr Brown had been employed since 4 October 1983 as a lecturer in the School of Computing & Electronics. At the time of his dismissal he was senior lecturer in that department. The University employs over 3,000 people at its site in Preston.

Difficulties were first encountered with Mr Brown when, in May 1992, the University became concerned at reports that he had a tendency to approach young female students. Notes were made on these reports by Miss Nicholson who was a course leader in the computer electronics department. The Tribunal recorded that she had formed the view that Mr Brown was losing touch with reality. In May 1993, Mr Brown wrote a letter to a female student. The Tribunal found that the letter was explicitly sexual and made it clear that he wished to form a relationship with her. The recipient of the letter approached a senior lecturer in computer studies who counselled her. There was no formal complaint at that stage, because the recipient did not wish to become involved in such procedures. The person who was counselling the recipient saw Mr Brown, pointed out to him the errors of his ways, and received an apology which was passed on to the recipient of the letter. She had been told, however, that if she felt she might be in some way prejudiced in forthcoming examinations because of this incident, she should pursue the matter with the students' counsellor. She was assured that an approach to her would be confidential. She later experienced some concern on these matters. She did go and see the student counsellor, who took her in turn to see a Mrs Merchant.

The Tribunal found that the University operated a sexual harassment policy, inherited from its predecessor Polytechnic. Under that policy and following a discussion between Mrs Merchant and the Rector, Mr Booth, a panel was appointed by the University's Equal Opportunities Committee. The purpose of the panel was to act as the first point of contact in issues relating to sexual harassment. Mrs Merchant chaired the panel. For the purposes of enquiring into the alleged sexual harassment caused by Mr Brown's letter, Mrs Merchant nominated two members of the panel to join her in interviewing Mr Brown and dealing with related matters. The other two persons were both senior lecturers; one a woman, Mrs Susan Field, the other a man, Mr Neil Berry.

On 2 July 1993, Mrs Merchant and Mrs Field interviewed Mr Brown. At the interview he accepted that he had written the letter. He stated that it was not intended to be offensive. His intent was to form a relationship with the recipient. He confirmed that he had not been encouraged in any way by the student and the whole tone of the letter, he said, was meant to be humorous. Statements were then obtained and sent on 16 July by Mrs Merchant to Mr Brown. She requested a meeting with him to discuss those statements. The meeting took place on 16 July. Detailed notes were made of the meeting. The Head of the computing department made a full report to Mrs Merchant on 14 July about Mr Brown, and the investigation carried out in relation to his suspension, operative from the time of the investigation on the instructions of the University Rector.

At the second interview with Mr Brown on 13 July by the Sexual Harassment Committee, Mrs Field was on holiday. Mr Berry was co-opted by Mrs Merchant. At that meeting Mr Brown was represented by a union official. Notes were made of the meeting, which were put in evidence before the Tribunal. The notes indicated that Mr Brown admitted his guilt about the letter. His representative was concerned that the investigation was continuing. Ultimately the three members of the Sexual Harassment Committee discussed the matter. Mrs Merchant and Mrs Field came to the conclusion that the only appropriate action was to recommend dismissal from the University staff, because of the undesirability of students being placed in such a position and the duty on the University for the care and welfare of all the students.

The Tribunal found that, although Mr Berry did not quarrel with that, he felt that a penalty less than dismissal might be appropriate. He made suggestions concerning the chaperoning of Mr Brown as a lecturer and banning him from any under-graduate activities. The other two rejected that proposal as being unworkable. Ms Woodward has produced the letter written by Mr Berry dated 13 July 1993, setting out his views on the matter. It does appear from that letter that he said this:

"I am not saying that I think dismissal would definitely be wrong and, if that was the end result, I would not seek to oppose it (even if I had the authority do so)."...

He said at the end of his suggestions, that in his view Mr Brown should not receive the Institution's most severe penalty, dismissal. He explained why he thought a final written warning was the appropriate step. The Tribunal found that Mr Brown had made a detailed statement about himself generally and his relationships, including the relationship with the student to whom he had sent the letter. On 22 July 1993, Mrs Merchant made a report to the Rector recommending dismissal of Mr Brown from his post. We have been shown a copy of that report by Ms Woodward. She pointed out that there is no mention in that report of the views expressed by Mr Berry in his memorandum to Mrs Merchant on 13 July.

Following receipt of the report, the Rector wrote to Mr Brown further to the suspension from duty, pending the outcome of investigations. He said:

"These investigations have now been completed and I have received a report from the Chair of the Sexual Harassment Panel.

The recommendation made to me is to consider your dismissal on the grounds of gross misconduct and I am minded to take such action against you. Before making my decision, I am required under the Articles of Government to offer you the opportunity of making representations to me, at which you may be accompanied by a friend, who may be a trade union representative, if you wish."

We have noted the procedure in the Articles of Government which, in relation to gross misconduct, provide that, before making the decision to dismiss, the Rector shall explain the reason for dismissal and give the employee the opportunity to respond. Following that there was some delay, but, on 29 July, Mr Brown had a meeting with the Rector. Mr Brown made representations to the Rector as to why he should not be dismissed. At the end of the meeting Mr Brown was informed that he was dismissed with effect from 31 October. That dismissal was confirmed in a letter from the Rector dated 29 July. He was informed that, if he wished to appeal, he should notify the University Secretary in writing. He did that. Mr Brown's representative arranged for him to be examined by a Consultant Psychiatrist. The University Secretary noted the request to have the appeal delayed until the psychiatrist's report was available, but a provisional date for the appeal at 7 October was fixed. The psychiatrist's report was received just before the date of the appeal. A postponement was requested. That was refused. It was considered that he had had ample time to prepare himself for the meeting. The documentation was before the Tribunal on that point.

The Appeals' Committee heard the appeal on 7 October. Through his representative, Mr Brown sought permission to adduce evidence at the hearing, but that was not in accordance with the appeals procedure and was refused. The University disciplinary appeals panel considered all the relevant material and rejected the appeal. He was notified on 11 October of that decision and the dismissal took effect from 31 October. Those were the facts upon which the Tribunal considered the two complaints. They dealt first of all with the complaint of sex discrimination. The Tribunal's conclusion was that there was no sex discrimination. They were referred to the relevant sections of the 1975 Act, relating to direct discrimination. They pointed out that the onus of establishing discrimination was on the person who alleged it. They then stated (and this has been a matter of criticism, so I quote directly from the Decision):

"But what a complainant must do is to create a strong inference of sexual discrimination which it is then for the respondent to refute. Here, there was no evidence whatsoever deduced by or on behalf of the applicant that anything that occurred in connection with the investigations into his alleged gross misconduct was connected with his gender. The applicant himself said that he had a "gut feeling" that he was being treated less favourably and harassed unduly because he was a male lecturer. But, both the dismissing officer and the chairperson of the Sexual Harassment Committee made it clear in evidence that exactly the same situation would have prevailed had the letter of proposition been written by a senior female lecturer to a young male student."...

The conclusion of the Tribunal was that there was no merit or substance in his allegation of discrimination on grounds of sex. They then dealt with the claim for unfair dismissal. Ms Woodward accepts that they correctly referred to the appropriate statutory provisions. As to Section 57(1) (the reason for dismissal), there was no dispute that there was conduct which was potentially fair as a reason for dismissal. It was then for the Tribunal to consider the application of Section 57(3). Having concluded that Mr Brown was dismissed for a reason under Section 57(1)(a), the Tribunal said that the question under Section 57(3) was whether the University, in treating that reason as a reason to dismiss him, acted fairly or unfairly having regard to all the circumstances, including the size and administrative resources of its undertaking and equity in the substantial merits of the case. The Tribunal referred to the well-known case of British Home Stores Ltd v Burchell and the three elements of that decision. First, that the employer must believe that there are grounds for dismissal, secondly, he must have reasonable grounds for that belief and thirdly, he must, at the stage when he formed the belief on those grounds, have carried out as much investigation into the matter as was reasonable in all the circumstances of the case.

The Tribunal in applying that test stated that it was satisfied that the University complied with all of these requirements. They dealt with various criticisms of the investigatory procedure carried out by and on behalf of the Rector. The particular complaint was that Mr Brown was not able to cross-examine any witnesses at the disciplinary hearing. The Tribunal went on to point out that the basis of the complaint against him was that he had written (and he had admitted having written), a letter which was very suggestive in a sexual way to a young second-year student and which caused her great embarrassment and anxiety. Having regard to the obligation of the University to take care of the welfare of all their students, male and female, this was absolutely unacceptable conduct from a senior lecturer. They noted that he had made an attempt to obtain names and addresses of females employed by the University, for whom he had no particular academic responsibility, and was quite open that his intention was to form friendships with them, with a view to having an affair with one or more of them.

They referred again to the fact that he had admitted writing the letter; though he disputed the interpretations placed upon it. The Tribunal, who read the letter, said that, having regard to its explicit nature, it was difficult to understand how any misinterpretation could have been put upon it. The Tribunal summarised various guidelines by reference to the decided cases about the fairness or unfairness of the disciplinary investigation. No criticism has been made at the way in which they formulated those guidelines. They came to the concluding paragraph where they said in paragraph 17:

"It would be difficult to imagine a more detailed and thorough investigation of this matter than that conducted by the respondent. Amongst the complaints of the applicant was the fact that he was suffering from some mental disorder at the time he wrote the letter which must have been obvious to the Authority and yet no account was taken of this. The medical report received from the psychiatrist, Dr Ansari, went far beyond what such a report should in fact incorporate, but in any event Dr Ansari did not accept that the applicant was suffering from some mental impairment, although it was accepted that he might have been suffering from something described as a mid-life crisis. In these circumstances, and particularly having regard to the thorough appeal which was conducted against the decision by the Rector to dismiss, the Tribunal came to the conclusion first that had there been any defects in the Rector's handling of the dismissal, such would have been remedied by the appeal hearing and, secondly, that the response of dismissal in the first place was well within the band of reasonable responses which an employer could make to these facts in the circumstances and that dismissal was justified on that account."

What is legally wrong with that Decision? As we see it, the Tribunal did all that a Tribunal is required to do. They listened to a great deal of evidence in a long hearing. They made clear findings of fact in relation to all the relevant matters, such as the conduct of Mr Brown, which had given rise to the actions against him. They made clear findings of fact about the various procedural steps taken by the University before reaching the decision to dismiss him and to dismiss his appeal against that decision. They referred to the correct statutory provisions in the Sex Discrimination Act and the Employment Protection Act. They referred in detail to the various guidelines laid down by the courts and tribunals in relation to what is a sufficient investigation of misconduct, prior to a decision to dismiss.

On a fair reading of this decision there was no legal error in it. We have heard detailed arguments from Ms Woodward as to possible legal errors in the decision. We deal first with her complaint about the way in which the complaint of sex discrimination was decided. She submitted that the Tribunal failed to apply Sections 1 and 2 of the 1975 Act correctly. The Tribunal had misdirected itself by saying that a complainant must create a "strong" inference of sex discrimination, which it is then for the Respondent to refute. The position is that a finding of discrimination may be made by a process of inference. An inference may be created by less favourable treatment, which it is then for the person who is given that treatment to explain. It is for the Tribunal to decide, in the light of that explanation, whether to infer that the less favourable treatment was on the grounds of sex or was on some other grounds, which would not be unlawful. The main point made by Ms Woodward was that it was not correct to use the word "strong". She also made the point that the composition of the panel, two female and one male with a female chair, combined with the decision to overrule the recommendation of the only male member, created an inference of discrimination.

In our view, that point does not reveal any legal error. It is for the Tribunal to decide in the first place, whether there was any less favourable treatment received by Mr Brown, than would have been received by a woman in similar circumstances. They came to the clear conclusion in the Tribunal that there was no evidence of less favourable treatment. Therefore, Mr Brown in his complaint of sex discrimination, never raised a prima facie inference of discrimination. The Tribunal accepted the evidence on behalf of the University and this is referred to in paragraph 6 of the Decision:

"... exactly the same situation would have prevailed had the letter of proposition been written by a senior female lecturer to a young male student."...

That is a clear finding that there was no less favourable treatment of Mr Brown. There was no question of a mis-direction by the Tribunal as to the proper application of Sections 1 and 2 of the 1975 Act.

For those reasons, there was no legal error in relation to the dismissal of the claim for sex discrimination. As to the claim that there was an error of law in the decision under Section 57(3), we were given an elaborate argument, taking in a number of points by Ms Woodward about Section 57(3). We say at the outset that there was no criticism by her of the guidelines laid down on the authority of the Burchell case or on the other cases referred to. Her main complaint was in relation to the way in which the investigation had been carried out. She submitted that the Tribunal had mis-directed themselves on this point. She referred to the provisions in the staff hand-book about the University's sexual harassment policy and to the function of the panel, consisting of one male and two female members of staff and the presentation by them of findings and recommendations. She emphasised that the role of the panel was advisory. It did not instigate disciplinary action. She submitted on that basis that it was not for the sexual harassment panel to make the recommendation they did: that Mr Brown should be dismissed. It therefore was not correct for the Rector to act upon that recommendation. She referred to the provisions about the disciplinary procedure and said that a disciplinary sanction should only be applied as a result of a properly conducted disciplinary interview. At every stage of the procedure, the employee should be advised of the nature of the complaint against him. If, following an investigation, a disciplinary procedure should be implemented, a disciplinary interview should take place at which the employee would be advised that the formal disciplinary procedure was being invoked and he would be given details of the complaint and arrangements in writing.

On this aspect, the complaint was that the panel had made a report recommending dismissal. The panel's report did not mention the views of Mr Neil Berry, the only male member of the panel. The Rector then wrote to Mr Brown about the recommendation for dismissal, saying that he was minded to take such action and that he was offering Mr Brown an opportunity of making representations, if he wished. It was said that this procedure and the procedure followed by the Rector at the meeting with Mr Brown, did not follow the procedure laid down in the University's own procedure and did not follow the contractual procedure which Mr Brown was entitled to have followed. In these circumstances the Tribunal had erred in law by misconstruing the contractual procedure. They had erred in law by wrongly concluding that a fair procedure had been followed and erred in law in holding that the Rector, when reaching the decision to dismiss, had a belief in Mr Brown's misconduct on reasonable grounds based on a reasonable investigation. If the Tribunal had applied their minds correctly to the position, they would have found that there were defects in the procedure. The result of these procedural defects would have been that there was no fair investigation of the matter before the decision to dismiss.

In addition to those points, Ms Woodward referred to the fact that the question relating to the psychiatric report on Mr Brown was not before the sexual harassment panel; it was not put by Mr Brown or his representative to Mr Booth at the time when the decision to dismiss was made. The appeal body, which dealt with the matter, had refused to accede to the application for a postponement, as requested and referred to in paragraph 4(r) of the Decision, and had, at the hearing of the appeal, refused the application to adduce other evidence. That was said to be a failure to apply Section 57(3) correctly. Section 57(3) requires the employer to look at all the circumstances. Mr Brown's psychiatric condition was one of the circumstances. It was pointed out that a possible psychiatric condition on his part was known to the University since May 1992, when Miss Nicholson made a report.

For all those reasons Ms Woodward submitted that the Tribunal's fundamental error of law was in the first sentence of paragraph 17 of the Decision, when they said it would be difficult to imagine a more detailed and thorough investigation of this matter than that conducted by the University. She said it was flawed in all the respects mentioned and therefore there is an arguable point of law on this appeal which should be allowed to proceed to a full hearing. We have discussed these points in detail with Ms Woodward. We have discussed them between ourselves before deciding what we should do. We have unanimously reached the conclusion that there is no arguable error of law in this decision. As we see it, the matter is simple. There was misconduct on the part of Mr Brown. It was not disputed by him that the letter which founded the misconduct was written by him to the person who received it. That is a conduct reason in Section 57(1). As to the procedure followed, in our view the Tribunal were entitled to come to the view they did, that this was a reasonable investigation. Mr Brown knew what the complaint against him was. He admitted writing the letter. He gave statements to the sexual harassment committee. They took statements from others which were shown to him. He knew what was said in the report made by that committee against him, when he went to see Mr Booth, the Rector. Before the meeting the Rector had not said he had dismissed him, but that he was minded to dismiss him in the light of the report. At the meeting Mr Brown was given a full opportunity to make representations against dismissal. The Rector allowed him to make the representations before he took the decision. There was then an appeal hearing which the Tribunal found as a fact was thorough.

In our view, there is nothing in this appeal. At the outset of her argument, Ms Woodward said she was not alleging perversity. What she was alleging was a mis-direction in law as to whether this was a reasonable investigation. Whether there is a reasonable investigation or not, is a question of fact. In our view, on the evidence before the Tribunal, they were entitled to come to the conclusion that this was a reasonable investigation. That is the only point in this appeal. It is not arguable. The appeal is therefore dismissed.