United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR G MORTON (of Counsel) Instructed by: Mr R Haigh Bexley Borough Citizens Advice Bureau 1 Walnut Tree Road Erith Kent DA8 1RA
For the first Respondents For the second Respondents	MR J GILKES (Representative) THE SECOND RESPONDENTS NEITHER PRESENT NOR REPRESENTED


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal against an interlocutory order of an Industrial Tribunal which struck from the proceedings a named individual, a Mr Saxton, who was second respondent to proceedings commenced by a Miss Roberts against her former employers, Chargecrest Ltd and Mr Sexton. Her a complaint can be categorised colloquially as a complaint of sexual harassment. She was employed by Chargecrest Ltd as a security officer. Her services were hired out to premises managed or owned Harris Logistics who were the employers of Mr Sexton at the relevant time.

In her complaint which named Mr Sexton and her own employers as the respondents, she details a number of specific matters which she says showed that Mr Sexton was guilty of sexual harassment.

The Industrial Tribunal removed Mr Saxton as a respondent apparently on the grounds that as he was not the applicant's employer or employed by Miss Roberts' employer, he was an inappropriate party. Subsequently, on an application by the applicant, Harris Logistics have been joined as a second respondent.

The position in law appears to us to be as follows. A complaint of unlawful discrimination on grounds of sex, which is what a complaint of sexual harassment is, may be brought against the complainant's employer and any named individual under the provisions of ss. 6 and 41 of the Sex Discrimination Act 1975. By virtue of the provisions of s. 9, a complaint may also brought against the person to whom the services of an individual have been hired out. That is, not just the company itself, the principal, but also by virtue of s. 41 and s. 9 any employee of the principal.

In those circumstances, it seems to us, to be possible that the Industrial Tribunal may conclude that Miss Roberts was the victim of sexual harassment by the named individual, Mr Saxton, in circumstances where he has liability to her, but that his employers, Harris Logistics, are not liable by virtue of s. 41(3) of the 1975 Act.

It is of course equally possible that Miss Roberts may not succeed in establishing any unlawful conduct on the part of Mr Saxton.

It seems to us that in these circumstances the only correct approach of the Industrial Tribunal was to make Mr Saxton a party to the proceedings so that his responsibility, if any, for the matters complained of can be determined by the Industrial Tribunal after it has had the opportunity of hearing all the evidence. It is plain that he is a person interested in the proceedings; he is an appropriate person to be made a party; he may become liable, but that will depend on the facts of the case.

I should add that at this appeal, Mr Gilkes on behalf of Chargecrest Ltd has appeared. He courteously has indicated to us that he has no submission of his own to make on the question at issue on the appeal, but he raises the question as to whether Chargecrest Ltd, could in any circumstances be liable to Miss Roberts. As we understand it Miss Roberts puts her case against Chargecrest, her employers, on the basis that at some stage during the course of the conduct about which she makes complaint, she drew her employer's attention to what was going on, and it is her case that they did not take reasonable steps to protect her from the discriminatory conduct. In due course, the Industrial Tribunal will have to determine what the facts are, and whether, having found the facts, Chargecrest Ltd are liable in law for anything that happened thereafter. It is not the occasion today for us to make any comment about the legal liability either of Chargecrest Ltd, Harris Logistics or of Mr Saxton, but we are satisfied that it would be correct that all three parties that I have just named should be respondents to her application so that in due time the Industrial Tribunal can decide responsibilities in accordance with their findings of fact.

Thus, the appeal will be allowed and we direct that Mr Saxton be joined as the third respondent.