United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS K O'NEILL Legal Officer USDAW 188 Wilmslow Road Fallowfield Manchester M14 6LJ
For the Respondent	MR JOHN BOWERS (of Counsel) Messrs Gordons Wright & Wright Solicitors 14 Piccadilly Bradford BD1 3LX


 


JUDGE BYRT QC: This is an appeal against a decision of the Industrial Tribunal sitting at Leeds over a period of some four days, the last of which was 4 April 1996 when they unanimously dismissed the Applicant's claims for constructive dismissal and under the Sex Discrimination Act. The Applicant now appeals.

The Respondents are a subsidiary of a supermarket chain to whom they supply food products, such as bacon, cheese and sausages. The Appellant began working for them in August of 1993 as a production assistant. The Appellant had a physical relationship with her line manager, Shane Green, over a period of some three or four months and when that came to an end in about May 1994, their official relationship at work deteriorated. She received a number of anonymous telephone calls at her home. She assumed they were from Mr Green. That allegation was put to him and he denied it. His attitude towards her changed. He would not talk to her, not even, apparently, to give orders to her as to what she should do in the course of her work. On another occasion, at about the same time in May, Mr Green grabbed hold of the Appellant's lapels and pushed her up against a wall. On another occasion, he pulled her chair backwards so that she fell. On another occasion, he pulled her chair away. There was another instance when the Appellant was waiting for her tea break and Mr Green put his arms around her neck, kicked her ankles apart and caused her to fall. Unhappily, perhaps one might say, the Appellant made no complaints to her employers about any of this happening. She says that she was just too frightened.

In June 1994 she took an overdose, and in consequence everything came to light. She told everything to her parents and her parents made representations to her employers. As a result, the Appellant went down to see Jane Varley who, apparently, was one of the Respondent's counsellors. She had a meeting with her and then a meeting with Tony Sykes, who was the factory manager. In time, Mr Green was seen by management and it seems that, without actually admitting to any specific instances, he accepted he had messed around with the Appellant and been guilty of horseplay.

The outcome was that the Appellant was transferred to another section of the factory, namely to the cheese room and Mr Green was left with his responsibilities in his original position. If one was talking about good industrial practice, one would have thought that that was the wrong way of handling matters in a situation of this sort. Indeed, this solution is contrary to what was set out in the Respondent's own special complaints procedure where it is made quite plain that it is the harasser and not the individual harassed, who should be moved.

In any event, having taken the matter to management, and having accepted the transfer to the cheese room, the Appellant says matters did not end there. Although there is no specific instance where Mr Green physically harassed her again, she says that when she went to the canteen at the tea break Mr Green would often be there and he would stare at her intensely with a view to embarrassing and intimidating her. Although the Industrial Tribunal made limited findings relating to this next period between July 1994 to July 1995 it is apparent from what they said in the reason that they found this conduct continued throughout that period.

During those months, the Appellant was absent from work on several occasions and on a couple of these management called her in with a view to giving her a warning about her absenteeism but, again, and it is one of the agreed facts of this case, the Appellant made no mention of the intimidatory conduct she felt Mr Green was still subjecting her to. This was the situation that continued right up until 29 June at mid-day when the Appellant felt she had just had enough and as a result she walked out of her job because, as she said, she could not face Mr Green any longer.

On 18 July she went to see her own doctor and he wrote a certificate to the effect that she was suffering from anxiety symptoms which were affecting her health and he recorded a statement which he derived from the Appellant that this was the result of harassment by a male colleague. On 26 July the Appellant contacted her Union and the same day went down and saw management at the factory. She saw a Mrs Stanger, who was the Respondent's special complaints counsellor. As a result of relaying her further complaints to Mrs Stanger, Mrs Stanger initiated a thorough investigation.

There were further meetings between the Appellant and the Respondents, and, in particular, there was a meeting on 11 August when the Appellant tended upon the Respondents, together with her aunt and her Union representative. The Respondents were represented by a Mrs Leslie and a Mrs Brennan. One of them was the store personnel manager of the premises at which the Appellant was working at the time. The other was a store personnel manager from another store altogether. As a result of the discussions which took place on that occasion, it was indicated to the Appellant that they would have to investigate the matter further but, in the meantime, they wanted her to resume work. They did, however, counter this with the offer that they were prepared to alter her shift so that she attended for work at times totally different from Mr Green. Alternatively, they offered a move to their Victoria store.

It was at this point that the Appellant's Union representative said that the Appellant did not wish to work for the Respondents any longer and indicated to them that she had obtained a job elsewhere.

Essentially, those are the facts as found by the Industrial Tribunal.

Dealing with the claim that the Appellant had been subjected to sexual discrimination, the Industrial Tribunal began its considerations by directing itself on two particular aspects Firstly, they satisfied themselves about the provisions of section 1(1)(a) of the Act of 1975 and, secondly, they directed themselves to the burden of proof which they decided fell upon the Appellant. This she had to discharge according to the balance of probabilities.

The Industrial Tribunal found on the facts that Mr Green may have been a bully but he did not discriminate between whom he bullied. He bullied other men as well and, in particular, there was another man, a Michael Garside, whom they cited as a victim in June 1994. When he was bullied he was also removed to another department and Mr Green given an informal warning. In cross examination, the Appellant admitted that Mr Green would harass others whom he considered weak, not necessarily women. The Industrial Tribunal came to a finding that the Appellant had not been treated differently by Mr Green because she was a woman. In other words, that she had not been treated less favourably than she would have been had she been a man and, accordingly, there was no need for the Respondents to raise the defence which they had referred to in their notice of appearance under s.41(3) of the Act.

So far as the allegation of constructive dismissal is concerned, the Industrial Tribunal directed itself that the Appellant had to prove that the Respondents were in breach of contract of a fundamental nature. It found that in May, as soon as the Appellant had complained to the Respondents, the Respondents had taken the allegation seriously, implemented their special complaints procedures and transferred the Appellant to another section. They then attached importance to the fact that it did not seem that the Appellant had made any further complaint until the complaint she made in July 1995. At that point, they concluded that very shortly after, she had resigned before the investigation which had been initiated, had been completed. Specifically, they made mention of the fact that she was offered alternative positions of employment on 11 August but that these were rejected by the Appellant or by her representatives on her behalf.

The finding of the Industrial Tribunal was that there was no evidence here of a fundamental breach being proved. On the contrary, they felt that the Appellant had resigned instead and, accordingly, they dismissed the claim for constructive dismissal.

Miss O'Neill, who has argued this case vigorously on behalf of the Appellant, made a number of points in relation to the claim under the Sex Discrimination Act. She frankly conceded that there was no sexually explicit ingredient in any of the bullying acts that had been alleged against Mr Green. She said that the discriminatory element had to be inferred from certain accepted facts, the first being that there had been a physical relationship between Mr Green and the Appellant, that that had come to an end and that almost contemporaneously with the ending of that relationship the bullying had commenced. She went on in her argument to say that that led to the irresistible conclusion that Mr Green bullied the Appellant because the relationship had ended and she submitted that to treat her this way, for this reason, is to subject the Appellant to less favourable treatment on the ground of her gender. She further said that, if this was not wholly acceptable to the Tribunal, the facts she had relied upon, effectively transferred the burden of proof from the Appellant to the Respondents. She accepted in argument that in law the burden would not transfer but she said that in practice it would. Where there was prima facie evidence of sexual discrimination or acts that could be relied upon as constituting sexual discrimination, the burden then passed to the employers to give an explanation which was innocent of an offence under the Act. The Respondents, she said, had called no evidence offering such an explanation. She stressed that they had not called Mr Green. She says that the Tribunal should have found an irresistible link or nexus between the ending of the physical relationship and the commencement of the bullying, and the fact that they did not accept that conclusion, showed that they had come to a perverse finding. That was her basic submission.

Mr Bowers, who has argued the case for the Respondents, has said that the only submission he need make in relation to this case, is dependant upon a straightforward construction of the terms and the wordings of s.1 of the Act, that in a case of this sort, it was unnecessary and inappropriate to add words to the section or, indeed, put any gloss upon them. He said that, so far as the allegation of perversity is concerned, that was an inappropriate plea in this instance because this Tribunal had no notes from the Chairman of the Tribunal below and without such notes it is impossible to substantiate a charge of perversity. In addition to that, he said that it was impossible to say there was no evidence upon which the Industrial Tribunal could have come to the conclusion that it did when the Appellant herself said that Mr Green harassed others, not necessarily women but people he thought to be weak or, indeed, when there was the evidence about Mr Garside relating to the complaints that he made in June 1994, showing that he also had been the victim of bullying by Mr Green.

So far as this Tribunal is concerned, we are satisfied that the submissions made by Mr Bowers in regard to the contentions that the Industrial Tribunal had acted perversely, are the right submissions. We think, having regard to the absence of any record of the evidence given before the Industrial Tribunal, and having regard to the findings of facts which are set out in the Industrial Tribunal's reasons, it is impossible for us to say that there is no evidence upon which the Industrial Tribunal could have come to the conclusion that it did.

Whilst accepting that, we have also given thought whether, instead of being perverse, the Industrial Tribunal just failed to ask the right question for it would clearly be a misdirection of law if the Tribunal had said to themselves: Mr Green bullied the Appellant but he had a propensity to bully anybody and, therefore, he has not treated this woman less favourably than he treats or would treat a man. Quite plainly, the Tribunal has to consider the particular facts of the individual case and then apply the appropriate test to those facts.

The test, as it is set out in s.1(1) of the Act, are unambiguous and simple to apply to the facts of this case. We accept Mr Bowers' contention that it would be wrong to paraphrase them or, indeed, to put extra words into the section or add a gloss. In all the circumstances, we do not think that the Industrial Tribunal misdirected itself in the question that had to be asked and, accordingly, we find that there is no grounds for holding that the wrong test was applied.

In the circumstances, therefore, we dismiss the appeal against the Industrial Tribunal's decision when they disallowed the Appellant's claim under the Sex Discrimination Act.

We would just like to this, however, before leaving this particular part of the case. No one should interpret what we have said in coming to this conclusion that this is a charter for bullies. All we are saying is that, in the circumstances of this case, the Sex Discrimination Act does not provide the remedy. There are an abundance of tools in the armoury of employers for dealing with bullies in the workplace and for the maintenance of good industrial practice. It is quite clearly important that they should be used and that the employers should be vigilant for this sort of offence and deal with it firmly. This Company, the Respondents, had a code in which the procedures for dealing with this sort of problem are well set out. We trust that by now that code is being implemented.

I turn now to the claim relating to constructive dismissal. In this instance the Appellant terminated her own employment. That is an accepted fact. Miss O'Neill has accepted that and she has accepted that to establish her claim for constructive dismissal she has to show that the Respondents were guilty of a repudiatory breach of their contract with the Appellant. That is a breach of a term which goes to the root of the contract, evidencing an attention to bring the contract to an end.

Miss O'Neill, in arguing this matter, said that the term she relied upon as having been breached is an implied term. The implied term was that the employee shall be afforded a workplace free from bullying. Mr Bowers accepted that a term of that sort would be implicit in any contract of employment but qualified it by saying that it could not be an absolute duty, of course, unless imposed by statute. He said it had to be qualified by the additional words to the effect that the employees would take reasonable steps to ensure that there was no bullying. We accept Mr Bowers submissions in that respect but what Miss O'Neill would then say is the Respondents did not take reasonable steps to ensure that the Appellant was not subjected to bullying. She says that whilst the Respondents sought to deal with this matter initially in May 1994, they dealt with it inadequately on that occasion. First of all, she stressed that the Appellant herself was moved from her place of work to another section, notwithstanding the fact that she was the victim herself. Furthermore, she says that no disciplinary action on that occasion was taken against Mr Green. She says that having had a report and carried out an investigation, the Respondents should, if nothing else, have followed up with close monitoring of the activities of Mr Green.

Mr Bowers says that necessarily in the furtherance of this responsibility, the Respondent, must rely heavily upon the help of the potential victim. He says that she accepted the May 1994 solution and moved to the cheese room, and that what happened thereafter between May 1994 and 26 July 1995 was that the Appellant absented herself from work on a number of occasions. This conduct of hers was the subject of warnings from her employers, and on each occasion, doubtless, she would have been asked for the circumstances in which the absences had taken place. It is an accepted fact that the Appellant refrained on each such occasion from indicating to the Respondents that she was still being the victim of intimidation and embarrassment by Mr Green. Mr Bowers says that when, on 29 June, the Appellant left her employment, she did so without explanation until a month later, 26 July and it was only then that the Respondents were alerted to the continued problem this lady had had to face up to over the months. What he then says is that, as in May 1994, so at the end of July 1995, the employers used their best endeavours to investigate the matter and put it right if they could.

Miss O'Neill says that one thing that is plain is that when eventually the Appellant left her place of employment on 29 June she did so because she could not continue working there any longer. There is, I think, strong evidence to suggest that that might have been the case. She then ascribes the fact that her client had had to do that to the lack of care, the lack of effort that had been made by the employers to ensure that the Appellant was relieved of this continued embarrassment of intimidation.

So far as her contentions are concerned, again, she argues that the conclusion that the Industrial Tribunal came to to the effect that there had been no such fundamental breach but that the Appellant had resigned, was a perverse finding and based upon a misdirection of law by the Industrial Tribunal.

The Industrial Tribunal directed itself on the issue of law, both in paragraphs 2 and 12 of their reasons, making express reference to one of the leading authorities on fundamental breach, namely, Western Excavating Company Limited v Sharp [1978] ICR 221.

We are satisfied that the Industrial Tribunal directed itself correctly on the issues of law which arose in this matter. It would seem, perhaps that their phrasing of the test as set out in paragraph 10 is somewhat loosely put together but we are satisfied that it was corrected by their directions as set out in paragraph 12. We then have to ask ourselves whether the evidence that was in front of the Industrial Tribunal justified the conclusion they came to, to the effect that there was no breach of the fundamental term of the contract. We have to say that, in our view, there was such evidence. That is not to say that had we been sitting as the Industrial Tribunal, we would not have been able to criticise the conduct of the Respondents in any particular, but that is not our role and cannot be so. The question is whether there was evidence before the Industrial Tribunal which would entitle them or enable them to come to the conclusion that they did. We have to say that there was and therefore cannot find that the Industrial Tribunal had been guilty of perversity. On the contrary, there was ample findings in their reasons to justify the conclusions they came to.

Accordingly, we must also dismiss this appeal on the claim for constructive dismissal.