United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M DALE CONSULTANT RICHARD C HALL & PARTNERS CROWN BUILDINGS 121A SAUGHALL ROAD BLACON CHESTER CH1 5ET


 


JUDGE CLARK:

1. This is an appeal by the Respondent employer below, Geliot Whitman Ltd, against a decision of an Employment Tribunal sitting at London North, chaired by Mr G Flint promulgated with extended reasons on 9^th July 1999, upholding the Applicant Ms O'Donohue's complaints both of Unfair Dismissal and Unlawful Sex Discrimination against the company and its employee Mr Woodard. We would observe at the outset that although the decision is framed in that way, it does not appear that the Applicant was employed by Mr Woodard and thus it is not clear why the finding of unfair dismissal, as opposed to sex discrimination was made against him. However, he has not entered an appeal.
2. The background facts are that the Applicant and Mr Woodard were both employed by the Company. They lived together until late 1998. The relationship broke up with acrimony, particularly over property rights.
3. This dispute spilled over into their working time. The Applicant complained that Mr Woodard was abusive towards her and that Senior Management had failed to protect her from such abuse, but had taken Mr Woodard's side in the dispute. She contends that in those circumstances the company was in fundamental breach of the implied term of mutual trust and confidence, entitling her to leave in circumstances amounting to Constructive Dismissal. Further, the company had treated her less favourably on the grounds of her sex by favouring Mr Woodard, a man, who had himself harassed her. The Respondent conceded that if the Applicant was constructively dismissed, that dismissal was unfair. The Employment Tribunal upheld both contentions.
4. In this appeal, Mr Dale submits:

(1) The Tribunal did not consider whether the less favourable treatment found to have been metered out to the Applicant was on grounds of her sex. It is not enough, he submits, simply to show that there was a difference in sex between the Applicant and Mr Woodard. The Tribunal overlooked the Applicants own case that management, in the shape of Mr Geliot, favoured Mr Woodard in the dispute because of his friendship with Mr Woodard. The less favourable treatment was on grounds of friendship, not the Applicant's sex. We think that this point is arguable and should proceed to a full hearing, as should the point that the company should not be held vicariously liable for the acts of Mr Woodard, which were directed to the Applicant, not on the grounds of her sex, but due to the breakdown of their relationship.

(2) That the Tribunal reached a perverse conclusion in finding that the company was in fundamental breach of contract. We cannot accept that contention. It seems to us that the Tribunal was perfectly entitled to find that by taking Mr Woodard's side and permitting his abuse of the Applicant to continue at work, the company could properly be said to be in fundamental breach of contract entitling the Applicant to treat herself as discharged. We think that realistically Mr Dale accepts his difficulty in challenging the Tribunal's findings on the constructive dismissal part of the claim and accordingly we shall dismiss this part of the appeal at this preliminary hearing stage.

5. Accordingly, the Appeal will proceed to a full hearing on the finding of sex discrimination only. For that purpose the appeal will be listed for half a day, category C. We do not think it necessary to order Chairman's notes of evidence as requested in the Respondent's PHD form, purely for the purpose of the sex discrimination point.
6. Finally, there will be exchange of skeleton arguments between the parties, not less than 14 days before the date fixed for the full appeal hearing. Copies of those skeleton arguments to be lodged with this Tribunal at the same time.