United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MISS J MULCAHY (of Counsel) Instructed by: Mrs G Howard 34 Lyndale Avenue Childs Hill London NW2 2QA


 


MR JUSTICE MAURICE KAY: This is preliminary hearing of an appeal by Thanet College against a decision of the Industrial Tribunal held at Ashford in Kent on 6th and 7th May 1997.

The background to the case is that 'C' taught at the College, where he was a lecturer in photography. In the course 1994 he had a pupil named 'B' and it came about that she made a complaint about his behaviour in the Autumn 1994. She made that complaint to her course tutor. He interviewed her and she complained of 'C' having persistently asked to take a photograph and having visited her at home during the Summer vacation. The tutor then interviewed 'C' who had told him that he would reassure 'B'. The tutor had finally spoken to both parties again and had asked them the matter had been settled. Both had said that it had been settled to their satisfaction.

In 1996 'B' then raised the same allegations on an informal basis with Mrs Wood. By that time the College had an anti-harassment policy in place, and Mrs Wood was one of nine advisors appointed under that policy. She organised a meeting of 'C' and 'B', and after the meeting she wrote to both of them with her report. It stated:

"The Tutor concerned was made aware of the situation by the student in my presence and apologised and it was agreed between the two parties concerned, that in the future there would be no physical, verbal or written contact by the Tutor to the student. This was accepted by the student and the situation is therefore regarded as closed."

The anti-harassment policy includes procedures for both informal and formal complaint of sexual harassment by students. Sometime after Mrs Wood's involvement, 'B' raised the matter again. This time through solicitors who wrote to Mrs Wood on 29th May and 14th June. At all times the matters of complaint were the original ones going back to 1994. They did not involve any further complaint of improper activity by 'C' towards 'B'.

The letter from the solicitors indicated that 'B' now wished to make a formal complaint about these matters. The upshot was that the head of personnel, Mrs Lees, instigated an investigation into the matter. It is described by the Industrial Tribunal as a "thorough investigation".

The outcome was that after a three day hearing 'C' was dismissed and his subsequent internal appeal was unsuccessful.

One of the matters considered by the Industrial Tribunal was whether the College had satisfied the well-known test laid down by the Appeal Tribunal in British Homes Stores v Burchell [1978] IRLR 399. The Industrial Tribunal considered that the formal investigation satisfied the test in that Mr Burney, the person who made the ultimate decision, did have a genuine belief in 'C's responsibility for the act alleged by 'B'. He did have reasonable grounds for that belief and he had carried out a reasonable investigation into the matter.

It is clear that no part of that final formal investigation looked at in isolation was defective. The big question for the Industrial Tribunal was whether there ought to have been a formal investigation at that stage at all.

It is never appropriate to attempt read the decision of an Industrial Tribunal as if one were construing the words of a statute. It is abundantly apparent to us that the decision of the Industrial Tribunal that 'C' was unfairly dismissed, is based substantially on a finding that it was unfair to raise the formal procedure at all when it was raised in June 1996, however fairly it was subsequently administered.

In reaching their conclusion, the Industrial Tribunal made a number of observations. They include references to the College's anti-harassment policy and also to the EC code. Miss Mulcahy submits that what the tribunal said about the anti-harassment policy and the EC code is not in all respects correct. She submits that the tribunal was wrong to state that the anti-harassment policy did not follow the EC recommendations and code, and was further wrong to observe that the code:

"recommends the institution by a complainant of a formal procedure only if the unacceptable conduct continues or if it is not appropriate to resolve the problem informally."

The error to which she refers in that latter respect is that the EC code in addition to referring to informal resolution being inappropriate or informal attempts of resolution having been refused, goes on to refer to "where the outcome has been unsatisfactory". Nothing resembling those words appears in the relevant part of the decision. Miss Mulcahy suggests that this is an error sufficient to amount to an appealable point of law in this appeal tribunal.

She couples that observation with a further submission that the Industrial Tribunal did not take account or sufficient account, of a change of circumstances between the original informal complaints and the subsequent formal complaint. The changes in circumstance to which she refers are firstly, the evidence of 'B' to the effect that she had recently felt fresh and intensified trauma as a result of the original acts complained of; and secondly, the fact that other girls had made similar complaints. We say for the sake of completeness, that the complaints of the other girls were considered by the disciplinary procedure on the same occasion as 'B's complaint, and the complaints of the other girls were not upheld.

It is plain to us that neither the anti-harassment policy of the College nor the EC code deals specifically with a situation whereby informal investigation has resulted in an outcome which was at the time satisfactory to all parties, but which nevertheless contemplates a further and additional formal procedure thereafter.

We do not consider that it is arguable that the present circumstances can be brought within the compass of circumstances "where the outcome has been unsatisfactory". Miss Mulcahy is driven to submit that that can be construed as meaning unsatisfactory to the complainant on a subsequent occasion after the passage of time. We do not accept that submission and we have regard also to the fact that the contents of the code are in any event recommendations and are not conclusive as to whether or not a particular procedure has been properly invoked on a particular occasion.

It is clear from the words of the decision of the Industrial Tribunal that they considered it unfair for 'C' to be subjected to the formal procedure on this third occasion. We refer to two passages. The first is as follows:

"14. ... The complainant had pronounced herself satisfied with the outcome of the informal procedure, on two occasions and she had apparently accepted Mrs Woods' report in March that the situation was regarded as closed."

A little later:

"15. ... Finally, two months later, ['B'] decided to have a third go. This time thought, she invoked the formal policy. Thus it was that ['C'] was put in triple jeopardy. This time, however, the result was the termination of his employment."

We read the Industrial Tribunal as thereby comprising a decision to the effect that the unfairness which was ultimately found was in permitting the formal complaint to be processed at the time and in the circumstances in which it was.

Miss Mulcahy says that the language of "triple jeopardy" is inappropriate because there was no jeopardy until the third occasion when the disciplinary procedure was invoked for the first time. We disagree with that submission.

Although the earlier stages were not disciplinary in their nature, it seems to us beyond doubt that there are disadvantages and detriments which accrue to an employee when complaints are made and processed, even informally and absent the risk of disciplinary sanction. The matter had to be looked into by one of 'C's colleagues on the first occasion, by Mrs Wood on the second occasion, and even if the outcome on both occasions seemed to have included admissions on the part of 'C', were not recorded anywhere. There is, in our judgment, inevitably a detriment in the procedure.

We have come to the conclusion that the finding of unfairness in this case was a finding that was undoubtedly open to the Industrial Tribunal and we do not consider it arguable to submit to the contrary. The Industrial Tribunal was entitled to take into account the fact that it was a stale claim and that there was, in the language of the tribunal "triple jeopardy".

The ultimate finding of the Industrial Tribunal was that 'C' had been treated unfairly, not so much because of the time of the alleged harassment, but "because the respondent revisited the same allegations again and again". We consider that that is a conclusion which they were perfectly entitled to come to on the evidence before them.

It follows from what we have said that we do not consider that perusal of the College's anti-harassment policy and the EC code affords any arguable ground of appeal in this case. We do not consider that the use of the words "triple jeopardy" can be construed in a manner giving rise to any arguable ground of appeal. The reference to "change in circumstances" as the basis for an appeal seem to us not to provide a foundation upon which a successful appeal could be mounted because the change in circumstances in reality amounted, so far as 'B' was concerned, to little more that a reassessment of her position in the light of developments personal to her and subsequent to the previous decision.

Finally, Miss Mulcahy submits that she has an arguable ground based on perversity. The alleged perversity being that once the Industrial Tribunal had found that the College had satisfied the test laid down in British Homes Stores v Burchell, it was perverse to proceed to find that the dismissal was unfair. We do not accept that submission. We have already made it clear that our interpretation (which we consider to be the only appropriate interpretation of the language of the decision) is that whilst they were finding that the procedure was meticulously carried out once it was instigated, they were finding, more importantly, that it should never have been instigated at all at that particular point in time. That, in our judgment, was not and cannot be said to have been a matter of perversity. It was well within the range of decisions open to the Industrial Tribunal. Looking at the matter narrowly by reference to each of the proposed grounds of appeal put forward and looking at the matter widely in relation to the eventual decision of the Industrial Tribunal, we are unanimously of the view that this decision is not one that gives rise to any points of law that are arguable in the sense of having any significant prospect of success if the matter were to go to a final hearing.

Accordingly, in all the circumstances, we shall not permit the appeal to proceed beyond this stage, and it is dismissed herewith.

In dismissing it, we express our gratitude to Miss Mulcahy who has made her submission with considerable skill and economy.