United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR W HOSKINS (of Counsel) The Treasury Solicitor Queen Anne's Chambers 28 Broadway London SW1H 9JS
For the Respondent	MR R WYNNE-GRIFFITHS (of Counsel) Messrs Trump & Partners Solicitors 34 St Nicholas Street Bristol BS1 1TS


 


JUDGE PETER CLARK: We have before us appeals by various respondents before an Industrial Tribunal sitting at Cardiff under the chairmanship of Dr Rachel Davies against parts of that tribunal's decision which upheld certain allegations of unlawful discrimination and victimisation on the grounds of her sex brought by the applicant, Miss Davies. The Industrial Tribunal hearing occupied four days during October 1996. The decision was reserved and following further deliberations on 22nd January 1997 the tribunal's decision with extended reasons ["the reasons"] was promulgated on 23rd January 1997.

Parties

The relevant parties before the Industrial Tribunal for the purposes of this appeal were the applicant, Miss Davies, a black female, who at all material times was employed at H M Cardiff Prison as a trainee prison officer, and referred to as Miss X by the Industrial Tribunal; the first respondent, her employer, H M Prison Service; the second respondent, a Mr Randall, known as Mr Y in the course of the tribunal proceedings, who was a male prison officer also employed by the Prison Service; the fourth respondent, Governor Lockley and the fifth respondent, Governor Davies. The third respondent, a female prison officer, Miss Cotton, is not a party to the present appeal. We shall refer to the parties by name in the judgment, there being no Restricted Reporting Order in force before the Employment Appeal Tribunal.

Complaint

By her Originating Application presented to the Industrial Tribunal in November 1995 Miss Davies complained of direct sex discrimination; victimisation under the Sex Discrimination Act 1975 ["the Act"]; racial harassment and sexual harassment. She gave particulars of various specific incidents relied upon in support of those complaints.

The Industrial Tribunal Decision

The tribunal considered the complaints in detail, rejecting most but upholding some. In particular, the allegation of unlawful racial discrimination was dismissed, as were certain allegations of unlawful sex discrimination. There is no cross-appeal against the findings made by the tribunal which did not favour Miss Davies.

Those complaints which succeeded are conveniently set out in paragraph 77 of the reasons in this way:

"77 ON THE EVIDENCE and on the basis of inference drawn from primary facts for which no satisfactory explanation was given we find:-

i) Mr Y discriminated unlawfully against Miss X on grounds of sex in contravention of sections 1 and 6 of the 1975 Act in that in breach of the disciplinary code as to off-duty conduct he imposed his unwanted sexual attentions upon her causing her fear and distress, thus treating her "less favourably" than he would have treated a man and subjecting her to a "detriment".

ii) Mr Y discriminated against Miss X by way of victimisation within the meaning of section 4 of the 1975 Act in that in seeking to "get at" her for making allegations against him he treated her "less favourably" than others on the ground that she had "alleged that the discriminator" had acted in contravention of the 1975 Act.

iii) Mr Lockley and Mr Davies discriminated against Miss X by way of victimisation in that without taking all relevant considerations into account they singled her out to be "dealt with" in respect of old-established rumours in respect of which there could have been many carriers.

iv) Mr Lockley discriminated against Miss X by way of victimisation in that without adequate or satisfactory reason he subjected her to determined and persistent questioning in respect of an old-established lie of which he had been aware of for many months.

v) The prison discriminated against Miss X under sections 4 and 6 in that without adequate or satisfactory reason it delayed investigation into the "Y" incident until four months after it had occurred thus treating her "less favourably" than Mr Y and subjecting her to a "detriment".

vi) Miss X's allegations against Mr Y were genuine and made in good faith within the meaning of section 4 of the 1975 Act.

vii) The prison is liable under section 41 of the 1975 Act for the discriminatory acts of its employees in that it failed to take reasonably practicable steps to prevent their discriminatory conduct."

The Appeal

Before turning to the tribunal's findings of primary fact, the inferences which they drew, their self-direction as to the law and their conclusions material to this appeal it is convenient to set out the two points taken by the appellants in this appeal. They are:

(1) that the tribunal failed to consider whether Mr Randall was acting in the course of his employment with the Prison Service within the meaning of s.41 of the Act when he sexually harassed Miss Davies at her flat on 26th June 1995, and that such a finding was central to the conclusions contained in paragraph 77 i) - iv) of the reasons.

(2) that the tribunal's finding at paragraph 77 v) of the reasons was wrong in law; alternatively no proper reasons have been given for that finding.

The Facts

We begin with the incident on 26th June 1995. The tribunal found that on that day Miss Davies telephoned the prison from her flat saying she had been subjected to a sexual attack by Mr Randall with whom she had previously been on good terms and who had called round to discuss his domestic difficulties. She told the tribunal that he had forced himself upon her and had pushed his tongue so far down her throat that she felt she was suffocating. Mr Randall denied a sexual attack but accepted that he had attempted to kiss Miss Davies and that she had been very distressed. He thought she over-reacted.

Pausing there, we take that narrative from paragraph 18 of the reasons. Paragraphs 2-42 of the reasons are headed "EVIDENCE". In order to see how the tribunal dealt with the conflict of evidence between Miss Davies and Mr Randall it is necessary to turn to paragraph 55, in a section headed "CONTENTIONS", where the tribunal make no finding of fact as to the extent of Mr Randall's unwarranted attentions on that occasion, but find on his own evidence that he did impose his unwanted sexual attentions on Miss Davies with sufficient zeal to frighten her. He therefore subjected her to a "detriment".

We refer to these matters in order to draw attention to the need for Industrial Tribunals to find the facts, rather than set out the evidence. It would be helpful to the parties and to this Appeal Tribunal if Industrial Tribunals set out their findings of fact in narrative form, referring where necessary to conflicts of evidence and how they have been resolved, rather than to set out the evidence given on both sides, the potential difficulty being that it is not always easy to discern what evidence has been accepted by the tribunal and what has been rejected.

On this occasion it has been possible to discern the tribunal's finding of fact from elsewhere in the reasons; however, we think that the general practice of finding the facts rather than setting out the evidence is of universal application.

The tribunal continue their recitation of the evidence as follows. Mr Lockley and a colleague attended Miss Davies' flat on 26th June in response to her call and found her "absolutely distraught and in a state of abject misery" and in "a state of hysteria". Under the prison's code of conduct and discipline officers "must not" bring discredit to the Prison Service by their off-duty conduct. Mr Lockley reported the matter to the police and Miss Davies was put in touch with prison "carers". Under prison policy an internal investigation was shelved pending completion of police investigations. The prison was not in a position to suspend Mr Randall or Miss Davies in the meantime due to inadequate staffing but it was ascertained that although they worked on the same wing they worked different shifts and were unlikely to meet.

On her return to work on 27th or 28th June Miss Davies saw Mr Randall as he left his shift. She was distressed. She went to see Mr Lockley, feeling that all eyes were on her. He decided that she should carry on as normal and she completed her shift. Thereafter she felt that she was badly treated by her colleagues. Whether the tribunal accepted what we presume was her evidence as to this, and if so, whether such a finding was material to their conclusions is not made clear in the reasons.

In early July Miss Davies went on holiday with her boyfriend to Cyprus. Whilst she was away, on 13th July, Mr Randall told Miss Cotton that Miss Davies had told him that she, Miss Cotton, had been involved in lesbian activities on a training course at Wakefield and that she believed that Miss Cotton was a lesbian.

In evidence, Mr Randall said that Miss Davies had caused him enough trouble through making allegations. He was trying to get back at her. He said he knew Miss Cotton would react and he wanted to "get at" Miss Davies.

Miss Cotton did react. She wrote to Mr Clifford, the Prison Governor on 13th July, complaining that Miss Davies was spreading rumours that she was a lesbian and had been seen coming out of a male instructor's bedroom. On receipt of that letter Mr Clifford instructed Mrs Wilson, head of personnel, to investigate the Cotton complaint "with all speed".

In the course of the ensuing investigation Miss Cotton, a Mr Edwards, who said that Miss Davies had made allegations about Miss Cotton to him and Mr Randall were each interviewed. Miss Davies was interviewed by Mr Lockley and Mr Davies, the fifth respondent. She apparently denied spreading gossip about Miss Cotton. Whether the tribunal accepted that denial, or whether it mattered so far as their conclusions were concerned, is again not immediately apparent from the reasons.

Once the Cotton investigation was completed a report was prepared by Mr Davies. He made certain "Recommendations". He was satisfied that Miss Davies had spoken to two officers about Miss Cotton's sexuality, and that she would have to be dealt with under the informal procedure for spreading these rumours. He was sure that she would continue to do so until stopped.

Although the tribunal observed that Mr Davies does not say why he was satisfied Miss Davies had spread the rumours and would continue to do so, the tribunal do not themselves make any findings of fact on this point.

We now return to Miss Davies' complaint against Mr Randall. On 8th September 1995 Miss Davies was informed in writing by the Crown Prosecution Service ["CPS"] that there would not be a criminal prosecution against Mr Randall arising out of the incident on 26th June. On 14th September she spoke to personnel and was told that they had a copy of the CPS letter. She expected an internal investigation into her complaint to begin. Nothing happened and so on 27th September she wrote to Mr Clifford to make a formal complaint against Mr Randall, to include an enquiry into how Mr Randall obtained her private address.

More than three weeks later, on 20th October, Mr Clifford asked an outside panel to investigate Miss Davies' complaint against Mr Randall.

The tribunal drew a distinction between the speed with which Mr Clifford instituted the Cotton complaint investigation, and the delay in starting the Davies complaint enquiry.

The outside panel commenced its investigation on 23rd October. It dismissed Miss Davies' complaint that she had been bullied and intimidated by Messrs Lockley and Davies in connection with interviews by them over an unrelated matter, but found that Mr Randall had given offence to Miss Davies during the incident on 26th June, and recommended that under the Prison Service Disciplinary Code he be given some formal guidance and advice as to his future conduct.

The Industrial Tribunal Self-direction as to Law

The tribunal set out the statutory provisions, without reference to authority, which it intended to apply to the facts as found, either directly or by inference, in paragraphs 43-47. We set out those paragraphs, with the exception of paragraph 46 which deals with the racial discrimination complaint, in full:

"LAW

43 By Section 1 of the Sex Discrimination Act 1975 a person discriminates against a woman if "on the ground of her sex he treats her less favourably than he treats or would treat a man". By section 6 such discrimination "in relation to employment" is unlawful if it subjects the woman to a "detriment".

44 By Section 4(1) discrimination by way of victimisation occurs if a person is treated less favourably than others on the ground that he or she has "(c) ... done anything under or by reference to this Act ... in relation to the discriminator or (d) alleged that the discriminator or any other person has committed an act which ... would amount to a contravention of this Act ..." Subsection (2) provides that "subsection (1) does not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith".

45 By Section 41 an employer is liable for its employees' discriminatory acts unless it can show that it "took such steps as were reasonably practicable to prevent the employee from doing that Act".

...

47 The burden is on the applicant to establish her case; and we bear in mind that this may be done by direct evidence or by inference drawn from primary facts for which the respondents have no adequate or satisfactory explanation."

The Industrial Tribunal Conclusions

Under the heading "CONTENTIONS", the tribunal set out the various complaint made by Miss Davies, and expressed their conclusions on each.

Having rejected certain contentions at paragraphs 48-53, with which we are not concerned in this appeal, the first successful complaint is formulated in paragraph 54 in this way:

"54 It was submitted that Mr Y discriminated against Miss X in subjecting her to the alleged sex attack."

The tribunal accepted that complaint for the reasons given in paragraph 55, expressed as follows:

"55 This is accepted. Mr Y did not deny that he had imposed his unwanted attentions on Miss X or that he had frightened her. The only disparity was as to the extent of his attentions. We make no finding as to the extent, but are satisfied on Mr Y's evidence and his statement to the investigators that he did impose his unwanted sexual attentions on Miss X with sufficient zeal to frighten her. He therefore subjected her to a "detriment". There was no suggestion that he would have imposed similar unwanted attentions on a male. We therefore find that he treated her "less favourably" than he would have treated a man. In view of the requirement in the Prison's Disciplinary Code that officers, "must not" allow their off-duty conduct to bring discredit on the Prison Service, we find that Mr Y's conduct was "in relation to employment". It therefore constituted unlawful discrimination within the meaning of sections 1 and 6 of the 1975 Act and "a contravention of this Act" within the meaning of section 4. We find that he further discriminated against Miss X by way of victimisation under section 4 in that in seeking to "get at" her he treated her "less favourably than he would treat other persons" on the ground that she had "alleged that the discriminator had committed an act ... which would amount to a contravention of this Act.""

The tribunal then proceed to build on the discrimination and victimisation so found against Mr Randall by finding in paragraph 56, that the victimisation triggered by Mr Randall was furthered and developed by the investigators into the Cotton complaint for eight separate reasons set out at paragraphs 57-64.

In paragraph 65 the tribunal find that Miss Davies:

"... was treated "less favourably" within the meaning of section 4 of the 1975 Act in that she was subjected to determined and persistent badgering in respect of an old-established lie. The inference to be drawn from that less favourable treatment was that Mr Lockley hoped to discredit Miss X because of her allegations against Mr Y. No other satisfactory or adequate explanation for Mr Lockley's conduct was given and we find that it constituted victimisation within the meaning of section 4."

Finally, in paragraphs 67-71 the tribunal find that the prison authorities subjected Miss Davies to a detriment in that the investigation into her complaint against Mr Randall, relating to the incident on 26th June, did not take place until four months later, (23rd October) and this subjected Miss Davies to that detriment as a result of her sex. They rejected the explanation for the delay, namely the prison policy of shelving investigation until Police enquiries were completed as being unsatisfactory where the victim of an alleged attack was obliged to continue working in the some premises with the alleged attacker. Speedy action was essential.

Further, a distinction arose between the speed with which the Cotton complaint was investigated and the speed with which the Davies complaint investigation began.

They conclude that in delaying the Davies complaint investigation the prison treated Miss Davies less favourably than a male, namely Mr Randall, and thereby subjected her to a detriment, and that in the absence of a satisfactory explanation the inference to be drawn is that it did so on grounds of sex and on the ground that she had made allegations against him. Hence the conclusion expressed at paragraph 77 v) of the reasons referred to earlier in this judgment.

The correct approach in law

Our starting point in considering this appeal is to set out our understanding of the statutory framework, with the assistance of higher judicial authority.

Direct Discrimination

Miss Davies may only succeed in showing direct discrimination on the grounds of her sex in relation to the incident involving Mr Randall which took place on 26th June 1995 in the following circumstances:

(1) She must show under s.1(1)(a) of the Act that a person, on the grounds of her sex, treated her less favourably than he treats or would treat a man, and

(2) that discrimination is unlawful under s.6(2)(b) of the Act by virtue of the fact that a person, in the case of a woman employed by him at an establishment in Great Britain, discriminates against her by subjecting her to a detriment.

(3) Miss Davies was not employed by Mr Randall for the purpose of s.6(2)(b).

(4) She was employed by the Prison Service, which also employed Mr Randall. By s.41(1) of the Act the Prison Service will be responsible for any act done by a person in the course of his employment, whether or not done with the employer's knowledge or approval, subject to the statutory defence under s.41(3), which the tribunal found was not made out in this case.

(5) By s.42(1) a person who knowingly aids another person to do an act made unlawful by the Act shall be treated for the purpose of the Act as himself doing an unlawful act of the like description.

It follows, in the circumstances of this case, that an act of sexual harassment by Mr Randall, provided it was done in the course of his employment with the Prison Service, is capable of amounting to discrimination under s.(1)(a) and capable of amounting to a detriment under s.6(2)(b), such as to render the Prison Service as employer of Mr Randall and Mr Randall, as "aider and abettor", both liable to Miss Davies as an employee of the Prison Service, subject to the statutory defence available to the employer under s.41(3), but not to the employee, Mr Randall (s.42(2)).

(6) In order to make out a complaint of victimisation under s.4 of the Act it is necessary for Miss Davies to show that she has been subjected to less favourable treatment by reason of her having done a protected act. The protected act must be a genuine complaint of unlawful treatment by another within the meaning of the Act. There must be a causal link between the unfavourable treatment and the doing of the protected act by the complainant.

Aziz v Trinity Street Taxis [1988] ICR 534.

It is therefore of critical importance to this analysis that Mr Randall was acting in the course of his employment when he made an unwanted advances to Miss Davies at her home on 26th June 1995.

In the course of his employment

Until the judgment of the Court of Appeal in Jones v Tower Boot Co. Ltd. [1997] IRLR 168, handed down on 11th December 1996 and first reported in The Times on 16th December 1996, it was the understanding of Industrial Tribunals and the Employment Appeal Tribunal that the meaning of the expression "in the course of his employment" was analogous to the common law doctrine of vicarious liability in actions in tort. This approach stemmed from the Court of Appeal decision in Irving v The Post Office [1987] IRLR 289 and is to be found in the majority decision of the Employment Appeal Tribunal in Tower Boot [1995] IRLR 529.

However, in the Court of Appeal in Tower Boot that approach was disapproved. The correct approach is encapsulated in the judgment of Waite LJ where he said, at paragraph 43:

"The tribunals are free, and are indeed bound, to interpret the ordinary, and readily understandable, words 'in the course of employment' in the sense in which every layman would understand them. This is not to say that when it comes to applying them to the infinite variety of circumstance which is liable to occur in particular instances - within or without the workplace, in or out of uniform, in or out of rest-breaks - all laymen would necessarily agree as to the result. That is what makes their application so well suited to decision by an industrial jury. The application of the phrase will be a question of fact for each industrial tribunal to resolve, in the light of the circumstances presented to it, with a mind unclouded by any parallels sought to be drawn from the law of vicarious liability in tort."

However, in Waters v Commissioner of Police of the Metropolis [1997] IRLR 589, a case concerning a complaint by a women police constable of sexual harassment by a male officer in her room in the police section house in which she lived, which it was alleged amounted to unlawful sex discrimination, Waite LJ said this in relation to the issue as to whether the male officer was then acting in the course of his employment at paragraphs 81-2:

"81 Course of Employment

This can be dealt with very briefly. True it is that the industrial tribunal (through no fault of its own, because it was applying the law as it was understood to be at the time) fell into the error of judging the issue according to the narrower standard of common law vicarious liability. It accordingly becomes the duty of this court to inquire whether the agreed facts on which the tribunal was proceeding could lead to any different finding if the right test is applied (ie if the question of course of employment is considered at large). If there were any doubt about that, the issue would have to go back to the industrial tribunal for decision.

82 In my view, there can be no such doubt. T and the applicant were off duty at the time of the alleged offence. He lived elsewhere, and was a visitor to her room in the section house at a time and in circumstances which placed him and her in no different position from that which would have applied if they had been social acquaintances only, with no working connection at all. In those circumstances it is inconceivable, in my view, that any tribunal applying the Tower Boot test could find the alleged assault was committed in the course of T's employment. This ground of appeal therefore fails."

This Appeal

In the course of his employment

Mr Hoskins submits that nowhere in the reasons does the Industrial Tribunal deal with the question as to whether Mr Randall was acting in the course of his employment with the Prison Service when he visited Miss Davies at her flat on 26th June 1995. Further, he contends that on the basis of the observations made by Waite LJ in Waters, set out above, it must follow that had the tribunal considered that question and properly directed itself in law, it would have been bound to conclude that he was not then acting in the course of his employment, and that consequently it was not open to the tribunal to make the findings which it did at paragraph 66 i)-iv) of the reasons.

For Miss Davies, Mr Wynne-Griffiths submits that it was implicit in the tribunal's findings that Mr Randall was acting in the course of his employment on that occasion. He accepts that at paragraph 43 the tribunal were wrong to elide subsections (1) and (2) of s.6 of the Act; the expression "in relation to employment" applies only to s.6(1); this is a claim brought under s.1(1)(a) and 6(2)(b) of the Act. Nevertheless, he submits, the finding at paragraph 55 that Mr Randall's conduct was "in relation to employment" means, in the context, "in the course of his employment". Further, he argues that such an implicit finding was permissible in circumstances where, as the tribunal found, the Prison's Disciplinary Code, to which he referred us, provides that officers must not allow their off-duty conduct to bring discredit on the Prison Service. Mr Randall was in fact disciplined under that Code. If follows that the subject-matter of those disciplinary proceedings, the incident on 26th June 1995, must have related to an act done in the course of his employment with the Prison Service.

On these grounds he asks us to affirm the tribunal's findings at paragraph 77 i)-iv).

Having considered these rival submissions we are unable to accept either in full. In our judgment the tribunal did not ask itself the correct question, that is, was Mr Randall acting in the course of his employment when he visited Miss Davies at her flat on 26th June 1995 and made unwanted sexual advances towards her? We decline to equate that question with the wrong question actually asked by the Industrial Tribunal, namely, was his conduct "in relation to employment".

However, we are far from satisfied that, if the question was asked, the tribunal's answer would have been as clear cut as each side contends. We do not read Waite LJ's observations in Waters as meaning that no off-duty conduct can be regarded as outside the course of employment in the light of his lordship's earlier, general observations in Tower Boot to which we have referred.

Since the question, on a proper direction in law, is essentially one of fact for the Industrial Tribunal, we shall leave it to an Industrial Tribunal to decide, rather than reach a conclusion ourselves.

Victimisation

The second point raised in the appeal relates to the tribunal's finding at paragraph 77 v) that "the prison" discriminated against Miss Davies under ss. 4 and 6 of the Act in that without adequate or satisfactory reason it delayed investigation into the Randall incident until four months after it had occurred, thus treating her "less favourably than Mr Randall and subjecting her to a detriment".

As to this finding Mr Hoskins submits, first, that it is wholly unclear what comparable treatment it is said was meted out to Mr Randall which was not afforded to Miss Davies. He made no complaint which was investigated more quickly than that made by Miss Davies against him.

If the comparison was in fact made between the speed with which the Cotton complaint was investigated compared with that by Miss Davies against Mr Randall, that is not in fact a comparison between a man and woman.

Further, there is no finding that the Prison Service policy of waiting until after a police investigation was completed before commencing an internal investigation, which the tribunal regarded as unsatisfactory, was not applied to everyone regardless of gender. In which case an inference of unlawful discrimination does not necessarily follow. see Glasgow City Council v Zafar [1998] ICR 120.

Having heard Mr Wynne-Griffiths in reply on this part of the appeal we are quite satisfied that the tribunal's reasoning leading to the conclusion in paragraph 77 v) is so opaque as to require remission for a proper explanation of that finding to be given.

Disposal

It follows that this appeal must be allowed and the case remitted, at the request of all parties, to the same tribunal for:

(1) determination of the question as to whether Mr Randall was acting in the course of his employment with the Prison Service when he behaved as the tribunal find he did towards Miss Davies at her flat on 26th June 1995, and to consider the effect of the tribunal's answer to that question on their findings at paragraph 77 i)-v) of the reasons; and

(2) reasons to be given for their finding at paragraph 77 v) which identify:

(a) the less favourable treatment, and

(b) the comparison made between Miss Davies and Mr Randall.

(c) why the explanation for such less favourable treatment given by the Prison Service was unsatisfactory such as to give rise to an inference of direct discrimination on the grounds of sex.

(d) the causal link between what protected act and the less favourable treatment for the purposes of s.4, bearing in mind that the protected act must relate to a complaint of unlawful discrimination under the Act.

Finally, we remit the case on the assumption that no further evidence will be necessary; the remitted hearing will proceed on the basis of submission only.

However, it may be that one or other of the parties, or the Industrial Tribunal of its own motion, may wish further evidence to be adduced. In that event it will be for the Industrial Tribunal to give directions prior to the remitted hearing as to what further evidence is to be admitted.