United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D REGALE OF COUNSEL (INSTRUCTED BY) MR P FRANKLAND SOLICITOR LB OF CAMDEN TOWN HALL JUDD STREET LONDON WC1H 9LP


 


HIS HONOUR JUDGE PETER CLARK: By an Originating Application presented to the Employment Tribunal on 12th February 1996 the Applicant, Miss Pullen, complained of sex discrimination on the part of her Employer, the London Borough of Camden ("Camden"), by whom she has been employed as a parking attendant from and since 4th November 1991. She remains in that employment. It was her case that she had been subjected to a continual and systematic campaign of sexual harassment by her manager, Mr Bryant from about December 1993. Further, that Camden had failed to investigate her complaints about such treatment and that she had been denied promotion to permanent supervisor as part of the campaign against her. The claim was resisted.

The complaint was heard by an Employment Tribunal sitting at London (North) chaired by Mr G Flint. The first hearings took place on 1st - 4th April 1997. There was then a long gap before the hearing was resumed on 24th - 26th August 1998. By a decision with extended reasons promulgated on 9th December 1998 the complaint was upheld and the question of remedies adjourned. Against that decision Camden now appeals.

The format of the Employment Tribunal's reasons consists of a recitation of the conflicting evidence given, principally, by the Applicant on the one hand and Mr Bright on the other. The Applicant's evidence consisted in part of a series of allegations of sexual harassment by Mr Bryant, all of which he denied. In paragraph 11 of the reasons the Tribunal then find that although Mr Bryant's evidence was unsatisfactory and was, for the most part, to be regarded with some reservation, they were not prepared to find that he had engaged in the overtly sexual conduct towards the Applicant which she alleged. Despite finding that Mr Bryant did not act in an overtly sexual way, thus apparently rejecting the Applicant's principal case, the Employment Tribunal went on to find that he did adopt a bullying and forceful manner towards the Applicant, perhaps because his earlier experience had consisted of managing men as a Warrant Officer in the army and that in the view of the Tribunal sexual harassment does not have to have an overtly sexual content to be present. It does, in their view, consist of any unacceptable conduct by a male manager directed against a person simply because she is a woman. They then went on to find that Mr Bryant treated women differently from men in similar positions. That amounted to sexual harassment, although there was no overtly sexual conduct. That was sex discrimination.

There is a further finding that Camden's investigation carried out by one, Paula MacDonald, was not satisfactory.

Finally, as to limitation, the Employment Tribunal found that there was continuing discrimination, even although Mr Bryant ceased to be the Applicant's manager in August 1995 (at an earlier point in their reasons that they put the date as June 1995), well before the beginning of the limitation period on 13th November 1995. Alternatively, they would have held that it was just and equitable to extend time on account of the Applicant's illness after August 1995. That conclusion appears to conflict with their earlier finding that her period of illness began in January 1996. There is no finding that she was ill during 1995.

Against that background, we have considered the various grounds of appeal raised in Camden's Notice of Appeal, supplemented by a helpful skeleton argument prepared by Mr Reed and amplified by him in oral submission before us. At the heart of this appeal is the principle which has been repeatedly emphasised by the Court of Appeal in cases such as Martins -v- Marks & Spencer Plc [1998] ICR 1005 and Chapman -v- Simon [1994] IRLR 124, that Employment Tribunals must make the necessary primary findings of fact before going on to consider whether or not the complaint of sex discrimination has been made out. For the reasons advanced by Mr Reed, we are satisfied that it is arguable in this Appeal that the Tribunal has failed to make the necessary findings of primary effect. Both for the purpose of determining the issue of discrimination and also, in order to determine the issue of limitation.

For these reasons, we shall allow this Appeal to proceed to a full appeal hearing on all grounds set out in the Notice of Appeal. The case will be listed after two short Preliminary Hearings for the remainder of the working day, Category B. 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.

Finally, Mr Reed made application for the Chairman's notes of evidence. Having heard his submissions on that application we are not satisfied that this is a case in which Chairman's notes are required at all. We think that the arguments raised in the Appeal will either be well made or not on the basis of the Tribunal's expressed reasons.