United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	NO APPEARANCE BY OR ON BEHALF OF THE APPELLANTS
For the Respondent	MR ALLEN (Counsel) Messrs Lawford & Co Solicitors 102-104 Sheen Road Richmond Surrey TW9 1UF


 


MR JUSTICE MORISON (PRESIDENT): The relevant findings of the Decision of the Industrial Tribunal held at Brighton against which the employers, British Telecom, appeal are as follows:

1. Miss Williams, the employee and respondent to this appeal, is employed by British Telecom at their offices in Brighton. She worked in the Accounts Department. Her senior manager was Mr Paul Moore. She worked in a team which was predominantly female, but she was the only member from an ethnic minority background.
2. British Telecom have a system of staff appraisal which is carried out on a monthly basis, with a more detailed annual appraisal. For the 1993/94 annual appraisal, the employee was given very low marks. Having been appraised on paper [APR], employees are given a copy of their appraisal and, after a period of time to consider it in detail, an interview is held at which the views of the appraisers are discussed.
3. On 15 March 1994, Mr Moore held an interview with the employee to discuss her poor appraisal. She had asked for the meeting to be held that day, as she was about to go on holiday and wanted to get it over with before then.
4. It was alleged by the employee that Mr Moore was sexually aroused during the interview; that he was flushed and perspiring; that he stared at her legs and effectively trapped her in the room and that this conduct amounted to harassment contrary to Section 6(2)(b) of the 1975 Act. The Tribunal rejected the allegations that Mr Moore was sexually aroused and that he had stared at her legs and that he had trapped her in the room. They found that he was nervous, may well have perspired and shifted his eyes to the floor. They also found that he found the interview stressful, and that it was being held at a time not of his choice.
5. The Tribunal say that Mr Moore had not properly prepared himself for the interview; there was only one copy of the written appraisal and

"27. ... in reading the report together inevitably a physical proximity was involved which in these circumstances could appear threatening or distasteful. This was not an occasion to "cosy up" because the invasion of space distorts the relationship.

The inability to back up contentions in the APR with facts, which was a major cause of complaint by the Applicant at the interview, was going to imply prejudice. The length of the interview which varied according to [the] evidence between 1½ and 2 hours was, by either version, excessively long."

The Tribunal says this in paragraphs 28 & 29:

"These facts indicate unimaginative and insensitive management, but when placed in the context of the events described at paragraph 16, the fact that Mr Moore was not the Applicant's manager and the unexpectedly hostile review must have given the impression that Mr Moore was some kind of vengeful visitation. If that sounds an overstatement consideration must be given to the Applicant's otherwise extravagant reaction ..., this coming from "the very calm person" described by Mrs Fountain.

Mrs Fountain also told the Tribunal of the Applicant's immediate reaction after the interview in response to her question of why she had been so long. Miss Williams said "it was awful" and that she felt threatened. Mrs Fountain said she was surprised that a counselling interview should have that effect.

The Tribunal finds that:

(a) The choice of Mr Moore to conduct the interview;

(b) The absence of a third party;

(c) The failure to provide more than one copy of the APR;

(d) The proximity of the seating;

(e) The lack of preparation by Mr Moore;

(f) The excessive length of the interview

all contributed to an atmosphere which, having regard to the dominant management position of Mr Moore, was offensive to a reasonable person coming to an interview with the background relationship of the Applicant and Mr Moore and such a situation was sexually intimidating and it is understandable that the Applicant rationalised herself as being physically trapped."

Discrimination on the grounds of sex can take many forms. Sexual harassment is a particular form. Sexual harassment can best be defined as unwanted conduct of a sexual nature, or other conduct based on sex affecting the dignity of women and men at work. To affect a person's dignity on the grounds of sex will, as with other forms of sexual harassment, cause a detriment to that person. Thus, proof of sexual harassment, of whatever form, will satisfy the criterion Because the conduct which constitutes sexual harassment is itself gender specific, there is no necessity to look for a male comparator. Indeed, it would be no defence to a complaint of sexual harassment that a person of the other sex would have been similarly so treated: see Porcelli v Strathclyde Regional Council [1986] ICR 564.

In this case, the Industrial Tribunal correctly assessed that the substance of Miss Williams complaint of sex discrimination was sexual harassment. But the Tribunal rejected the basis upon which that allegation was made. They accepted Mr Moore's evidence that he was not sexually aroused. Either he was behaving inappropriately towards her for sexual reasons or he was not.

They have, instead, criticised the Manager for the way he conducted the interview and said that the 'situation was sexually intimidating'. It is not clear what the Tribunal meant by that phrase. There are references in the Decision to the Manager's lack of wisdom in not having a female in the room with him. That was not a suggestion made by the applicant herself or on her behalf. The suggestion came from the Tribunal itself. My colleagues and I are sure that it is neither required by law nor desirable in practice that employers should have female supervisors for female staff or to see that male managers are chaperoned when dealing with female staff. The Tribunal's suggestion is, we think, wholly misplaced, and could itself be regarded as an unjustified generalised assumption based on sex which the Act is designed to make unlawful. If, as would appear, the reason why the tribunal concluded that the interview was sexually intimidating was because there was no woman present and the interview took place in a confined space, we have to say their conclusion must be rejected.

Once the Tribunal had rejected the explicit complaints of sexual harassment the complaint should have been dismissed. Instead, the Tribunal went on to make a number of comments about the managerial performance of the Respondents and of Mr Moore in particular and to consider a different complaint, namely whether she was subjected to a detriment on the grounds of her sex in relation to her manager's appraisal of her and his alleged aggression during the interview. That is a different type of complaint from the one they had identified as being brought, and would have required careful consideration as to whether she was subjected to this conduct by reason of her gender. Such a complaint would have been difficult to sustain, given the markings she received, and unless there were grounds for believing that he behaved to her differently from his behaviour to male employees, such a complaint could not have been made out.

Allegations of unlawful discrimination of any kind are allegations of unpleasant conduct. In cases such as these, it is likely that parties will have strongly held conflicting views as to what took place. It is the more so when the allegation is of sexual harassment, as in this case. Accordingly, it is the duty of the Industrial Tribunal to make it clear in their decision precisely what facts they have found proved and precisely in what form the discrimination has been found proved. To make suggestions of improper conduct, without specific findings is unfair to both parties. Euphemisms should be avoided. We mention this because it seems to us that several of the expressions used by this Tribunal should be avoided in the future. By way of example we select the following:

"Cosy up": the statement that this was not the occasion to cosy up is a statement without substance, unless it is made clear that they are finding he did cosy up to her on such occasion, and what precisely they meant by cosy up.

"Vengeful visitation": it is suggested that Mr Moore "must have given the impression" that he "was some kind of vengeful visitation". Those are the Tribunal's own words. It would have been better if they had recorded what the complainant herself said.

"The background relationship of the Applicant and Mr Moore": is capable of more than one meaning in a sexual harassment case; and again, the parties are entitled to know precisely what is being said.

"Sexually intimidating": again in the context of a sexual harassment case what is meant by this phrase needed to be carefully spelt out so that the parties knew exactly what was involved in such a finding.

Whilst we are mindful of the considerable responsibilities which fall on the shoulders of the Tribunals, we have to say that this particular decision falls below the standard to be expected of them.

It seems to us clear that, on their own findings, the only conclusion which the Industrial Tribunal were entitled to reach was that the complaint of sexual harassment was not proved. In our Judgment, Mr Moore has been unfairly criticised in the Decision, largely, we suspect for not having arranged for himself a chaperone when he carried out the interview.

We allow the appeal and make a finding that the complaint of unlawful discrimination on the grounds of sex be dismissed.