United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE BY OR ON BEHALF OF THE APPELLANT


 


MR JUSTICE LINDSAY: We have before us an appeal by Miss Dyke against a decision of the Industrial Tribunal under the Chairmanship of Dr Rachel Davies. The hearing was spread over some two days, 9th and 10th December 1997 and full reasons were given and were promulgated on 20th January 1998.

There is no attendance before us by Miss Dyke, the appellant, today in this preliminary hearing, but we have received a letter from her solicitors of 6th May 1998 which we have in mind.

The decision of the Industrial Tribunal was that sex discrimination, which is what Miss Dyke complained about, was established so one has apparently a victory for Miss Dyke. However, in the course of their reasoning, the Industrial Tribunal said this:

"(vii) she made matters worse for herself to such an extent that the situation in which she ultimately found herself, namely unable to work through stress, was attributable 60% to sex discrimination and 40% to her own conduct.

CONCLUSION

24. ... The hearing finished late in the day leaving no time to deal with remedy. Compensation if any will reflect such loss or injury as flows from the sex discrimination only, and will not reflect the applicant's 40% contribution to the situation in which she ultimately found herself."

The employer's case from the start had been that Miss Dyke was a contributor to and an instigator of sexually explicit remarks. What they had said in their IT3 was this:

"From her commencement on 21st April 1997 until her absence due to illness on 19th May 1997, she did not indicate that she was in any way distressed or offended by the comments of other staff, and the Company had no reason to believe that she was unhappy at work.

On receipt of the questionnaire from Miss Dyke's solicitor, an investigation was immediately instigated. The principal conclusion was that Miss Dyke was, according to a number of sources, a willing and forthright contributor and instigator of the sexually explicit conversations that took place and that at no time did she give the appearance of, or indicate that, she was distressed by those conversations."

Miss Dyke's Notice of Appeal raises three points, looking at page 2 of our bundle:

"A Whether the Tribunal was entitled, on its findings of Sex Discrimination against the Respondent, to attribute any of the cause of the Appellant's situation to her conduct.

B Whether the Tribunal was entitled, on the findings of fact that it had made, to assess the Appellant's contribution to her situation at 40% or to any percentage at all.

C That the Tribunal's conclusions on the above issues were such that no reasonable Tribunal properly directing itself on the facts and as to the law could reasonably make."

There had been some evidence to the Industrial Tribunal about which it expressed considerable doubts but in what seems to us a careful and balanced review the Industrial Tribunal held that:

"11. ... A Mr Richards, who was not one of the alleged culprits named by Miss Dyke referred to an incident in which, he said, she entered the office when only he and Mr Pullen were present and said "have you ever had it in a car?" adding that she and her boyfriend had "had it" while driving along the M4. The only explanation he could suggest for her conduct was that perhaps she wanted to be "one of the lads". A Mr Jackson of management who was responsible for her training said that on one occasion when he had said she looked tired she had replied that she had been up till 3 am and then had to keep her boyfriend company while he had his bath after coming off shift.

12. ... she had shown no sign of offence and had been a willing contributor to the so-called "banter"."

At little later in their reasoning the Industrial Tribunal says this:

"20. Nevertheless we do accept the evidence of Mr Richards and Mr Jackson who both impressed us as honest witnesses. ... We are satisfied that Miss Dyke did make suggestive or provocative remarks to them about her private life.

...

22. ... As Mr Richards suggested she was trying to be "one of the lads"."

The Industrial Tribunal saw and heard the witnesses. An assessment of them and their evidence is pre-eminently a matter of fact for the Industrial Tribunal alone. We cannot see that it can be argued that no reasonable tribunal properly addressing the evidence could have concluded as this one did on the point complained of. We do not say, in other words, that there is any prospect at all here of any claim of perversity being made good.

What the recent letter from Miss Dyke's solicitors says is this:

"7. ... The attempt to make a Polkey -v- AE Dayton [1988] ICR 142 deduction was inappropriate. This was not a Polkey case where there was a percentage chance whether or not the employee would have resigned."

We do not understand that the Industrial Tribunal was making or attempting to make a so-called Polkey deduction. There was no relevance of a Polkey deduction; the tribunal was not addressing whether Miss Dyke would have resigned in any event. We find that ground to represent merely a misunderstanding on the part Miss Dyke's solicitors.

Moreover, in another part of their letter they say this:

"3. In Digital Equipment Ltd -v- Clements (No.2) [1997] ICR 237, at p.247 after a review of the relevant authorities there is the clear statement that "the damages awarded must be adequate and enable the damage actually sustained as a result of the discriminatory dismissal to be made good in full.""

Going back to the decision of the Industrial Tribunal to re-quote a passage already quoted, what they said was this:

"24. ... Compensation if any will reflect such loss or injury as flows from the sex discrimination only, and will not reflect the applicant's 40% contribution to the situation in which she ultimately found herself."

So that complaint too, it seems to us, represents a misunderstanding.

Quite what the consequences of the 40% attribution may or should be in connection with remedy is not a question which is before us. But we are quite unpersuaded that the Industrial Tribunal must have been wrong in law to express the view that it held that she was to some extent authoress of the situation in which she found herself. If, on the evidence, an Industrial Tribunal truly comes to that conclusion, we see no good reason why it should not say so. To express that view as they did in percentage terms suggests a scientific measurability which cannot exist, but we do not see it as representing any error of law in ascribing a percentage figure to the point that the Industrial Tribunal had in mind.

Doing the best we can with Miss Dyke's Notice of Appeal and the matters referred to in her solicitors' letter, we find no prospect of success in this appeal and accordingly do not permit it to go to a full hearing, but rather dismiss it here and now.