United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR DUGGAN (of Counsel) Messrs Withers Solicitors 12 Gough Square London EC4A 3DA


 


JUDGE PETER CLARK: This is an appeal by the employer, A, against a majority decision of the Bedford Industrial Tribunal sitting on 30th July and 15th August 1997, that the applicant below and respondent to this appeal, B, had been discriminated against on the grounds of her sex.

The critical issue was one of fact. B complained that she had been subjected to sexual harassment, including acts of sexual assault by a fellow employee, Mr E. E denied the allegations. The majority of the tribunal believed B's account; the minority member believed E and thought that B had fabricated the allegations. Accordingly, the Industrial Tribunal found by a majority that A was vicariously liable for the acts of E, amounting to unlawful sex discrimination. A failed to establish the statutory defence under s. 41(3) of the Sex Discrimination Act 1975.

How, in these circumstances does A set about appealing a finding of fact? In two ways, submits Mr Duggan.

First he contends that the tribunal placed the onus of proof on A to disprove the allegations made by B whereas the burden of proof lies on the complainant to establish unlawful discrimination.

It is said that the onus lay on B to prove the dates when the acts of discrimination, set out paragraph 6 of the tribunal's extended reasons dated 2nd October 1997, took place. Some of the dates given, as the tribunal found, were Sundays when B and E were not at work. Thus she did not discharge the onus of proving her case. Indeed, at paragraph 6(e) of the reasons the majority find that the particular incident there set out happened on 26th January 1997, which was a Sunday. Further, the majority found that E could not provide an explanation as to why B should make up the allegations against him, as opposed to the explanation put forward by other witnesses called on behalf of A, namely that she held a grudge against E because he had caused her to get into trouble with the manager C; and further, a Mr Kaye, whom B had said was present at the incident on 26th October 1997, said that he saw nothing untoward. Mr Duggan submits that it is standing the burden of proof on its head for the Industrial Tribunal majority to take the view that it is incredible that B would have named that person as a witness to the incident of which she complained when he was subsequently called and did not support her case.

We shall dispose of the first contention straightaway. We are quite satisfied that the majority did not decide the issue of credibility between B and E on the burden of proof. They weighed up those witnesses and the evidence which they gave in the setting of the surrounding circumstances and other evidence given and preferred to believe B's account that the incidents had occurred rather than E's denial. We do not regard the incorrect date in paragraph 6(e) of the reasons as vitiating the remaining majority findings in that paragraph. In the same way the minority member carried out the same exercise and preferred the account given by E and rejected that of B. Both were equally permissible conclusions, in our view, for a tribunal of fact.

It was for B to prove her complaint of discrimination; she could only do so in this case if her evidence was accepted. It was, by two out of three of the Industrial Tribunal members.

The second way the case is put is on the ground of perversity relying on the points earlier made by Mr Duggan. That is a substantial hurdle for any appellant. Quite simply, these appellants do not clear it in our view.

Accordingly, we have concluded at this preliminary hearing stage that the appeal discloses no arguable point of law to proceed to a full hearing and accordingly, the appeal must be dismissed.