United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 686_94_3003

Appeal No. EAT/686/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 30 March 1995

THE HONOURABLE MR JUSTICE BUCKLEY

MR J A SCOULLER

MR R TODD

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MISS N J REYNOLDS          APPELLANT

EXPRESS GIFTS LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR N BERRAGAN

(Of Counsel)

Barlow Rowland

Solicitors

18/24 St James Street

Accrington

Lancashire

BB5 1NY

For the Respondents MR R D HENDRY

(Consultant)

Collinson Grant Consultants

Colgran House

20 Worsley Road

Swinton

Manchester

M27 5WW


 


MR JUSTICE BUCKLEY: Miss Reynolds was employed by Express Gifts Ltd. in its Personnel Department from 13 July 1993 until 11 August 1993, when she was dismissed. In that particular department there was also employed a Jonathan Melia and Gladys Phare. Mrs Phare was the Recruitment and Training Manager, Mr Melia was the Personnel Officer. Miss Reynolds complained to the Industrial Tribunal sitting at Manchester, of sex discrimination by Mr Melia. No question arose as to the company's responsibility for his acts. Miss Reynolds gave evidence before the Tribunal. There was then a submission on behalf of the company that Miss Reynolds evidence raised no case to answer. The Tribunal accepted that submission and dismissed the claim. Miss Reynolds now appeals to this Tribunal.

For the purpose of ruling on the submission, the Tribunal accepted Miss Reynolds evidence. They found a course of juvenile and irresponsible behaviour by Mr Melia, which went unrestrained by the company and which caused considerable distress to Miss Reynolds. Examples of this, which we take from the Tribunal's Reasons are, that Mr Melia was the `office joker'; he made persistent hoax telephone calls; in particular, to Miss Reynolds; he gave her on one occasion a list of telephone numbers to ring, ostensibly about the firm's Christmas Party. It turned out that one number, the first one that Miss Reynolds rang, was that of the Samaritans, another was the Police Station. He deliberately misled Miss Reynolds as to the urgency of work in hand; which put her under unnecessary and unreasonable pressure, causing her distress. He told her that she reminded him of a former girlfriend and that is the reason he did not want her to have the job. He persisted in that type of conduct. When Miss Reynolds complained to a Mr Skellern, who obviously spoke to Mr Melia about this, causing Mr Melia to apologise, the behaviour nevertheless continued. Soon after that, Miss Reynolds received two further hoax telephone calls and comments from Mr Melia about her clothing, indicating that she dressed in a very dull fashion.

The Tribunal referred to Section 1 (1)(a) and 6 of the Sex Discrimination Act 1975, they also expressly referred to the European Recommendation and Code of Practice, which had been published in 1991 and they made, or gave, quotations from it. The conclusion, or decision that they reached, is set out in paragraphs 12 and 13, which we quote:

"12. Although what emerged was a picture of inconsiderate treatment by a fellow employee which went unrestrained by his superiors, the Tribunal were unable to conclude that this was in any way related to the sex of the applicant. The conduct was not of a sexual nature and the Tribunal could not conclude that the conduct was "based on sex" if the meaning of these words were taken to mean that the conduct was based on the fact that the applicant was a woman.

13. Clearly the applicant had suffered detriment in as much as she lost her job but it is not necessary for the Tribunal to reach this point since the Tribunal were unable to find on the facts that the unpleasant behaviour from which the applicant suffered was, to quote the words of Section 1 of the Sex Discrimination Act, "on the grounds of her sex".

Mr Berragon for Miss Reynolds, referred us to various cases including Oxford v Department of Health and Social Security 1977 [ICR 884], also Baker v Cornwall County Council [IRLR 194] 1990.

Neither of those cases raised directly the point that arises in this case, namely the position when an Industrial Tribunal is faced with a submission of no case to answer. That was not what had happened in these cases. There are helpful comments on the position generally. For example in the Oxford case, the Tribunal said in the judgment given by Mr Justice Philips that:

"It seems to us that was a very proper course to have adopted"

(that was reference to the course that happened in that particular case)

"and we would recommend it as being the course which in most circumstances is the right course to adopt. It further seems to us that while burden of proof lies upon the applicant, it can only be in exceptional or frivolous cases that it would be right for the Industrial Tribunal to find at the end of the applicants case, that there was no case to answer and that it was not necessary to hear what the respondent had to say about it."

In that case, the Tribunal had heard evidence. Earlier in the judgment, the Tribunal said, in

reference to an argument which had been raised before it on the burden of proof:

"We recognise the difficulties but there is no doubt that although the Act of 1975 is silent on the burden of proof, the formal burden of proof lies upon the applicant, that having been said, it should be recognised that in the course of the case, the evidential burden may easily shift to the respondent"

We draw attention to and would wish to commend the attitude adopted by the Industrial Tribunal in this case.

In Baker, the Court of Appeal referred, with approval, to guidance given generally on this topic, in two other cases, Khanna v Ministry of Defence [1981] IRLR 331 and Chattapani, Headmaster of Holloway School [1987] IRLR 487. Lord Justice Neil in his judgment with which the other two members of the court agreed, cited a passage from Mr Justice Browne-Wilkinson, as he then was, in Khanna to this effect:

..."direct evidence of discrimination is seldom going to be available and that, accordingly, in these cases the affirmative evidence of discrimination will normally consist of inferences to be drawn from the primary facts. If the primary facts indicate that there has been discrimination of some kind, the employer is called on to give an explanation and, failing clear and specific explanation being given by the employer to the satisfaction of the Industrial Tribunal, an inference of unlawful discrimination from the primary facts will mean the complaint succeeds."...

A citation to similar effect was made from Chattapani. Lord Justice Neil went on to indicate that he would strongly endorse the guidance given in those passages.

Mr Berragon submitted that the Tribunal here were wrong in law not to hear the Respondent's evidence. There can be no doubt that if called upon to rule on a submission of no case to answer, an Industrial Tribunal must do so. It cannot directly force a Respondent to call evidence. However, what this Tribunal and the Court of Appeal recognised at an early stage, was that it is not often easy to prove racial or sexual discrimination, in the sense of calling direct evidence of it. It will in the nature of things usually be found, if at all, by reason of inferences drawn from the primary facts. If Industrial Tribunals were to focus too much on primary facts and not enough on the inferences that can properly be drawn, the whole purpose of the legislation could often be defeated, by respondents calling no evidence.

In this case, the Tribunal found a persistent course of conduct of harassment of 

Miss Reynolds, causing great distress. There was no finding that Mr Melia had behaved in that way towards any male employee, although it is unclear to what extent that was investigated. There were the findings about references to Mr Melia's former girlfriend and the dull manner in which Miss Reynolds dressed. This matter and some further general harassment arose even after Miss Reynolds complaints and Mr Melia had apologised.  

Mr Hendry, to whom we are also grateful, who appeared for the Respondents, submitted that there was no evidence that the harassment was sex based. However, it seems to us that there is clearly enough, in the absence of any evidence from the Company, from which to draw the inference that Mr Melia's conduct arose and/or was persisted in, because Miss Reynolds is a woman.

The Tribunal were not apparently referred to, and certainly did not themselves mention the cases to which we were referred. That, of itself, does not of course mean that they did not have them in mind. However, we feel that paragraph 12 of their reasons, indicates that the Tribunal concentrated too much on the findings of primary fact and did not consider, as they should have done, the inferences that clearly could be drawn from them. They perhaps approached their task as if making a final decision in the case, as opposed to whether there was a case to answer. In all, we are satisfied that the Tribunal could not have directed themselves correctly as to the proper approach to the determination of whether there was a case to answer. That means, they went wrong in law. We reiterate that in discrimination cases, whether based on race or sex, it is seldom that submissions of no case should be upheld. It is of course for the judgment for the Industrial Tribunal, but they must approach the task correctly; that is, in accordance with the clear guidance which the cases give. It follows that we would allow this appeal and subject to any further submissions from either side, it seems to us that the matter should be remitted. Indeed, must be remitted, for a new hearing by a different tribunal. We cannot of course simply change the result because the Respondents would not then have the opportunity to which they are entitled, of calling their own evidence. They were not put to their election, perhaps surprisingly, by the Tribunal and thus are entitled to an opportunity of presenting their case.