United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 711_95_1501

Appeal No. EAT/711/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 15 January 1996

THE HONOURABLE MRS JUSTICE SMITH

LORD GLADWIN OF CLEE CBE JP

MISS C HOLROYD

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OFFICE CLEANING SERVICES LTD          APPELLANTS

MRS S DICKINSON          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR D E CANNON

Group Industrial Relations

Manager

For the Respondent NO APPEARANCE BY OR

REPRESENTATION ON

BEHALF OF THE RESPONDENT


 


MRS JUSTICE SMITH: This is an appeal from the decision of an Industrial Tribunal sitting at London North on 16 May 1995. The unanimous decision of the Tribunal, so far as is relevant to this appeal, was that the Respondent had unlawfully discriminated against the Applicant by reason of her sex and was ordered to pay to the Applicant the sum of £8,528.93 by way of compensation.

The Respondent to this appeal, the employee (to whom I shall refer as Mrs D) had been employed by the Appellants as an Area Supervisor in their office cleaning business from 15 March 1994. When she was dismissed on 19 August 1994 she had not been employed long enough for an Industrial Tribunal to have jurisdiction to hear a complaint of unfair dismissal. In fact, she made a complaint that in dismissing her the employers had discriminated against her on the ground of her sex, in that they had treated her less favourably than they would have treated a man.

The background to the matter was as follows. In April or May 1994, Mrs D began to receive unwanted attention from a male colleague who worked in the same office as herself. In particular he indecently assaulted her on three occasions by putting his hand on her leg under her skirt. After some hesitation, she reported the matter to her immediate superior, a Mr Goodliffe. She asked him to keep the matter confidential, to which he agreed. She also asked that, if the man were to be disciplined, he should not be dismissed.

Mr Goodliffe, who was inexperienced in personnel matters, very properly sought the advice of Mr Cannon, the Respondent's Industrial Relations Manager, as to the conduct of a disciplinary hearing. Subsequently the Appellants conducted a disciplinary hearing in respect of the male colleague. The man admitted his misconduct and on 24 June 1994 he received a final written warning. He continued to work in the same office as Mrs D. She was not told the outcome of the hearing, but she was told that the man had been disciplined.

Soon after that, Mrs D found that everyone in the office seemed to know that she had made this complaint. She told the Tribunal, and they accepted, that she had been, in effect, sent to Coventry and that she had become the butt of sarcastic remarks. On 2 August 1994 Mrs D was driving another female employee to a different branch office when the other woman made some remarks about the complaint of sexual harassment. Mrs D found these remarks very distressing.

On 3 August, as the Industrial Tribunal found, Mrs D felt unwell and did not go into work. The Tribunal record in their findings of fact that on 3 August she had symptoms which her general practitioner first took to be due to diabetes. Her eyesight was blurred; she was tense and shivery. Mrs D did not have a telephone and on 3, 4 and 5 August, as the Tribunal found, she informed her employers, via a neighbour, of her inability to attend work. The Tribunal also accepted that she communicated on 8 August by telephoning in herself. They accepted that she sent a copy of a medical certificate for the attention of Mrs Rogers, who was the Regional Manager, to whom her line Manager, Mr Goodliffe would report. It appears that Mr Goodliffe told Mrs Rogers that he had not received that certificate.

On 18 August Mrs D received a letter advising her that her employers were no longer able to sustain her prolonged absence. She was dismissed. Complaint was made of her failure to submit the relevant documentation coupled with a lack of communication. It was Mr Goodliffe, her line Manager, who had taken the decision to dismiss her. Mr Cannon today accepts that it was a plainly unsatisfactory procedure that Mrs D should have been dismissed summarily without any hearing.

Before the Tribunal it was contended on behalf of Mrs D that she had been treated less favourably than a man would have been treated. It was pointed out that the male colleague, against whom she had made a complaint of sexual harassment, had been disciplined after a properly convened disciplinary hearing. She, on the other hand, had been disciplined and dismissed without any hearing at all. It was argued on behalf of the employers that the employee had been dismissed by reason of her conduct, in particular in respect of her long unexplained absence and by reason of her capability. As to the latter, there was no reference to capability in the letter of dismissal; no particulars were provided by the employer on the employee's request subsequently and there was no evidence before the Tribunal of any previous complaint. The Tribunal did not accept that Mrs D's capability had played any part in the decision to dismiss her.

As to Mrs D's misconduct, there was a dispute as to whether she had caused the neighbour to telephone in to explain the absence or had sent a medical certificate. In fact, the Industrial Tribunal preferred Mrs D's evidence but we do not think that this dispute was important for reasons which will later emerge. What matters, in our view and what mattered to the Tribunal in our view, is that a male colleague had had a proper disciplinary hearing and Mrs D had had none.

So far as the complaint of sex discrimination was concerned, before the Tribunal the employers argued that the dismissal was wholly unrelated to the complaint of sexual harassment. They argued that this was simply a summary dismissal for misconduct of an employee who was not in a position to complain of unfair dismissal.

The Tribunal thought that there was a causal connection between the dismissal and the complaint made by Mrs D of sexual harassment. They expressed the view that the employer had seized upon the opportunity to dismiss Mrs D because of her complaint of sexual harassment.

The nub of the Tribunal's decision is found at paragraph 4(h) of the extended reasons. They say this:

"4(h) From the unsatisfactory aftermath of the disciplinary proceedings against the male colleague and the manner in which the Applicant had been dismissed in sharp contrast with the clinical approach which the Respondent [employer] brought to the disciplining of the male colleague, we drew the inference that the Respondent had unlawfully discriminated against the Applicant by reason of her sex."

At this appeal, at which the Respondent has made no appearance, Mr Cannon for the employer, has argued that the Industrial Tribunal had been wrong to refuse an adjournment at the employer's request. Mr Cannon had written promptly to the Tribunal on receiving a hearing date. He explained that an important witness, in fact Mr Goodliffe, the dismissing officer, would be abroad at the time of the proposed hearing. That application was refused by the Chairman. Mr Cannon did not appeal that decision; instead he renewed his application at the hearing and again it was refused.

The Tribunal Chairman said this:

"Mr Cannon ... applied for an adjournment because one of his witnesses, ... was in Hong Kong. This [the application] was opposed by Mr Murray on behalf of the Applicant who pointed out that the same application had been made as long ago as January and that upon its refusal no further action had been taken by or on behalf of the Respondent. It was further clear from the file that the witness concerned had been in the UK within the last few weeks. Upon the application being further refused, Mr Cannon put in evidence an affidavit which had been sworn by the witness in question."

It is apparent, from the passage that we have read, that the Industrial Tribunal did not explain the reasons why the application for an adjournment was refused.

The Tribunal received Mr Goodliffe's evidence on affidavit. Mr Cannon has explained to us that that affidavit, which we have seen, was not complete; not all the relevant issues were covered as he, Mr Cannon, who was to conduct the case on behalf of the employers, had not had the opportunity to consult with Mr Goodliffe to explain to him what topics should be covered. However, on enquiry today, Mr Cannon has accepted that Mr Goodliffe would have been bound to admit that he had dismissed Mrs D without a hearing and without seeking the advice of Mr Cannon, in contrast to the way in which he had dealt with the sexual harassment matter.

Thus it seems to us that Mr Goodliffe's evidence could not have been of any assistance to the employers on the crucial issue. The fact is that these employers treated a male colleague differently from the way in which they treated Mrs D. The employers called no evidence to explain that difference in treatment or to show that they would have treated a male employee who was thought to be guilty of misconduct by reason of unexplained absences, in the same way as they treated Mrs D.

Today in argument, Mr Cannon suggested that the reason for the difference in treatment may have been that the male colleague had served for two years whereas Mrs D had not. Mr Cannon accepted that that would not have been an attractive argument to present to the Tribunal to explain the difference in treatment, although as it seems to us, it might have defeated the claim in sex discrimination.

It has been said many times that where a female Applicant shows a difference in treatment between herself and a male employee it is open to an Industrial Tribunal to draw an inference of sex discrimination. It may well be that there is no direct evidence of sex discrimination but in the absence of an explanation for less favourable treatment, it is open to the Tribunal to infer that the difference was on the ground of sex.

If an employer treats a woman differently by disciplining her without a hearing, when it is seen that they have conducted a hearing for a male employee who was to be disciplined, there is a likelihood that, unless they advance an explanation for that difference, unconnected with the sex of the two employees, there will be a finding of sex discrimination.

Here, the Industrial Tribunal also thought there was a causal link between the complaint of harassment and the employer's wish to dismiss. So it is not surprising to us that they drew the inference that the difference of treatment in this case was due to sexual discrimination. However, even without that causal link, we think that they would have been entitled to draw the inference that the different treatment was on the ground of sex.

When analysed in this way, Mr Cannon accepted that Mr Goodliffe could not have contributed anything to the important issues in the case. It was not he who could have explained that the difference in treatment was not related to the sex of either of the disciplined employees. Thus we do not think that the presence of Mr Goodliffe was at all crucial. In any event, the refusal of an adjournment is a matter for the Tribunal's discretion not to be interfered with unless it was plainly wrong.

In this case, it is unfortunate that the Tribunal did not explain their reasons for refusing the adjournment, although it may be implicit that they accepted the submissions on behalf of the employee. However, we do not think that this a case in which it could be said that the conclusion was plainly wrong. We decline to interfere with the decision on the ground of the refusal of an adjournment.

Thus the main ground of the appeal fails. Although other grounds were pleaded in the Notice of Appeal they have not been pursued in argument so far as liability is concerned.

Mr Cannon also sought to challenge the basis upon which compensation had been assessed. The Tribunal, after making an award for injury to feelings, awarded six months' loss of earnings on the basis that Mrs D earned £200 a week net. That is what she had claimed to be her usual earnings in her application. In their Notice of Appearance the employers had accepted the accuracy of those figures. Mr Cannon sought today to show that Mrs D did not regularly earn that sum. However, he accepted that he had not made a clear submission to the Tribunal below that the admission made in the Notice of Appearance had been erroneous.

It seems to us that in those circumstances this ground of appeal cannot be further advanced. The Tribunal acted upon the employers' admission. They were not told that the admission had been withdrawn and no clear evidence was advanced before them to demonstrate what the true earnings were.

In those circumstances the appeal against quantum must also fail.