United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR PAUL GOULDING (of Counsel) Messrs Baker McKenzie Solicitors 100 New Bridge Street London EC4V 6JA
For the Respondent	MR PETER WARD (of Counsel) Messrs Elliotts Bond & Banbury Solicitors 53 The Broadway Ealing London W5 5JT


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal by Mr Reed and Bull Information Systems Ltd against the unanimous decision of a tribunal sitting at London (South) and promulgated on 12 February 1997. The tribunal's decision was that Ms Stedman ["the applicant"] was constructively dismissed and had been subjected to sexual harassment by the appellants, Mr Reed, her manager ["the manager"] and that Bull Information Systems Ltd ["Bull"] were liable for that sex discrimination.

This matter came before this court on 22 January 1998, and the appeal was dismissed.

The facts can be taken from the tribunal decision. The applicant was employed as a temporary secretary on 1 June 1995 and was subsequently given a permanent placement responsible to the Marketing Manager, Mr Reed. The applicant resigned with effect from 28 June 1996 on the ground that she found working with him intolerable.

The tribunal accepted that the manager behaved in an unwelcome sexual manner towards the applicant and that she had made it clear that such behaviour was unwelcome. The tribunal made the following findings:

"we believe the Applicant was an honest witness whose recollection of the detail of incidents, which obviously seriously disturbed her, is to be relied on."

"the course of conduct complained of in the present case does contain sufficient sexual connotation to be regarded as sexual harassment. Those actions were plainly unwanted and Mr Reed knew they were unwanted…In our view there was an element of sexual harassment in Mr Reed's behaviour."

It is unnecessary to set out in detail all the incidents of harassment as alleged by the applicant, beyond the following summary.

During an informal discussion the manager suggested that sex was a beneficial form of exercise to which the applicant made no response. The tribunal found that such a remark was plainly sexual and obviously unwanted and was recognised by the manager as unwanted. On an occasion in the company smoking room the manager made an attempt to look up the applicant's skirt and when the applicant angrily left the room, the manager laughed. The tribunal accepted that this incident occurred, and although they considered that it had probably been intended as a joke by the manager, it still had unwanted sexual connotations. At a trial presentation the applicant alleged that in relation to a speech he had to make he said the following to her:

"You're going to love me so much for my presentation so that when I finish you will be screaming out for more and you will want to rip my clothes off."

The tribunal found that the manager must have known that the applicant objected to the comment as it clearly had sexual connotations. On one occasion the manager showed the applicant, and others, a newspaper cartoon which depicted an affair in a marketing department. The tribunal concluded that the incident should be included in the list of sexually offensive matters. Finally, the manager frequently stood behind the applicant when telling other colleagues dirty jokes. The tribunal found that after the applicant complained the practice ceased.

By the spring of 1996 the applicant's health was deteriorating which she put down to the harassment she was suffering at work and she left in June.

The tribunal found that the applicant never confronted the manager nor made any identifiable protests about his behaviour with the exception of the complaint she made about him telling dirty jokes to colleagues in her presence. But the tribunal did find that the applicant had made complaints to her mother, an unnamed colleague at work, and Miss Smith and Andrew Griffin who were also colleagues at work. The tribunal also found that Mr Grice had more knowledge of the applicant's concerns than he chose to reveal.

The tribunal found that the incidents with the manager were unacceptable to the applicant, not only because they were sexual, but because they were "personally intrusive and...probably of a bullying nature." The tribunal also found that there was nothing gross about the incidents which they found proved. Although the tribunal decided that no single incident was serious enough to be capable of constituting sexual harassment, they did find that there had been a series of sexual inferences with a pervading sexual innuendo and sexist stance.

However, the tribunal had great difficulty with the fact that the applicant had not complained to the manager about all the incidents which occurred and that when she had made complaint, or appear obviously distressed, he had realised that such behaviour was unwanted and had desisted from repeating such behaviour in the future.

With regard to the liability of Bull, the tribunal found that colleagues in the personnel department were well aware of the applicant's deteriorating health and that she had made complaints to other members of staff which had been dismissed. In those circumstances there should have been an investigation into the cause of the illness and the complaints that had been made. By failing to implement this, Bull committed a repudiatory breach of contract as they failed to deal with the issue of sexual harassment adequately. The tribunal concluded that the applicant was entitled to compensation for unfair dismissal by reason of sexual discrimination.

The first ground of appeal as put by Mr Goulding, who appeared on behalf of the employers, was that as the applicant's IT1 was presented on 13 September 1996, and the last incident of sexual harassment on the tribunal's own findings occurred in February 1996, it was outside the time limit for submitting a claim. Furthermore the applicant's delay in resigning, which occurred 4 months after the final act alleged to be discriminatory, meant it had not been a prompt or direct response to the alleged acts and could not therefore amount to constructive dismissal.

In relation to the alleged incidents of sexual harassment, it was contended that the tribunal failed to correctly consider the law. The tribunal erred in assuming that every act of sexual harassment amounted to a breach by the employer of the implied term of trust and confidence and further erred in not asking itself whether the sexual harassment alleged amounted to a breach of the employer's duty of trust and confidence.

The other main point of the appeal was that the tribunal failed to make clear findings of fact on matters central to its decision and that it came to conclusions of fact which were vague and contradictory. In particular Mr Goulding criticised the tribunal's finding that the incidents of harassment were part of a course of conduct when the decision did not contain sufficient findings to support a claim of sexual harassment nor any course of conduct. Our attention was drawn to the fact that of the fifteen complaints raised by the applicant only four were accepted as having a sexual connotation and of those four the tribunal accepted that the comment made by the manager that sex was a beneficial form of exercise was one that many people would have made, which meant that the manager was not treating the applicant any less favourably because she was a woman. For the same reason it was contended that as the comment made at the trial presentation was also made to a group of people, the applicant was not being treated less favourably than anyone else. That meant there were only 2 incidents with the potential to amount to a course of sexual harassment, and the tribunal made a finding that the incidents were not 'gross' and no act on its own would have constituted sexual harassment.

Doubt was also cast on the tribunal's use of a subjective test when deciding whether or not the incidents amounted to sexual harassment. Mr Goulding maintained that the incidents alleged would not, on an objective basis, be considered as harassment. As the tribunal found that a number of the comments were made to a group of employees and not to the applicant alone and that the incidents were not grossly offensive, in all the circumstances there was no course of conduct amounting to sexual discrimination.

We accept the applicant's arguments, put with great ability by Mr Ward, as to the question of whether two years' continuous employment was required and whether the tribunal had jurisdiction to hear the claim. Section 6(2) of the Sex Discrimination Act 1975 ["the Act"] reads as follows:

"It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her… (b) by dismissing her, or subjecting her to any other detriment."

In this case the applicant was forced to leave her employ at Bell as a result of the unwanted actions of her manager. That amounted to a constructive dismissal and as such was a dismissal within s.6(2) of the Act and accordingly the dismissal was itself an act of discrimination. The applicant's IT1 was therefore submitted within 3 months of the last act of discrimination, that is, her resignation.

We would also add that although the tribunal stated at paragraph 29 that the applicant was entitled to compensation for unfair dismissal it is clear from paragraphs 7 to 12 that the tribunal were considering this matter as one of sex discrimination within the Sex Discrimination Act 1975. The fact that the tribunal phrased its decision to include the words 'unfair dismissal' would not be enough to render the decision perverse. We accordingly reject that part of the appeal.

In relation to whether the incidents found by the tribunal to have occurred could amount to a breach of the duty of trust and confidence, we were directed to the authorities of Western Excavation (EEC) Ltd v Darby [1978] IRLR 27 and W A Goold (Pearmak) Ltd v McConnell [1995] IRLR 516. In Darby it was held that "persistent and unwanted amorous advances by an employer to a female member of staff" would amount to a fundamental breach of the implied term of mutual trust and confidence. In McConnell it was held that a failure to redress a complaint of discrimination may amount to a breach of contract. We accept Mr Ward's argument that the tribunal, as sole arbiters of fact, were entitled to find that the course of behaviour of the manager was both unwanted and bullying, and sufficient to amount to a breach of contract. We also accept that given the tribunal's findings that the applicant had made complaints to other colleagues at work and whose health had been deteriorating by reason of stress, it was incumbent on the employers to investigate the matter. Such failure to investigate was enough to justify a finding of breach of trust and confidence by the employer.

The appellants also criticised the decision of the tribunal on the basis that they confused the timing of the incidents of harassment and therefore erred in its conclusion that there was a 'course of conduct' of harassment against the applicant. The tribunal made clear findings that the manager knew his actions were unwanted at the time of the smoking room incident which is considered to have been in the Summer of 1995. The tribunal reiterated that the manager certainly knew that his comment about sex as exercise made in about February 1996 was unwanted, and yet he still continued to make comments which contained sexual innuendo and to tell sexual jokes in her presence. The tribunal were entitled to find that the manager was on notice of the applicant's dislike of his actions which contained a sexual overtone by the summer of 1995 and that acts committed after that time would justifiably be considered to be part of a course of harassment.

We would wish to add that although the tribunal rejected a number of the applicant's complaints, the findings of harassment which were made by the tribunal were of a serious nature. Whilst not 'gross' the behaviour of the manager towards the applicant, a newly employed and junior female secretary, was most inappropriate in the workplace. The tribunal found that the manager meant some of his actions as merely jokes and he did desist from behaviour to which the applicant objected, but he still acted in a way which was detrimental to the applicant's health and was bullying in nature. We do not consider that the tribunal erred in law in making its finding that there was a course of conduct mounted by the manager which amounted to sexual harassment and for which Bell are ultimately responsible.

For these reasons this appeal is dismissed.

Although, for the reasons which we have given, we do not regard the outcome of the appeal in the present case to be in doubt, it seems clear from the terms of the decision that the members of the Industrial Tribunal were much exercised about the ingredients of a claim of discrimination on the grounds of 'sexual harassment'. We, therefore, take this opportunity to set out some general guidance as to the Tribunals' approach in cases such as these.

For the sake of brevity only, we will take the more usual case where a woman makes a complaint of sexual harassment against a man, whilst accepting that there may be cases where a man complains of a woman's conduct towards him. The sort of questions which appear to have been of concern may be summarised thus:

1. If a woman regards as harassment of a sexual nature words or conduct to which many women would not take exception or regard as harassment, has her claim been made out?

2. If a man does not appreciate that his words or conduct are unwelcome, has her claim been proved?

3. Is a 'one-off' act [words or conduct] sufficient to constitute harassment?

It seems to us important to stress at the outset that 'sexual harassment' is not defined by statute. It is a colloquial expression which describes one form of discrimination in the workplace made unlawful by section 6 of the Sex Discrimination Act 1975. Because it is not a precise or defined phrase, its use, without regard to section 6, can lead to confusion. Under section 6 it is unlawful to subject a person to a 'detriment' on the grounds of their sex. Sexual harassment is a short-hand for describing a type of detriment. The word detriment is not further defined and its scope is to be defined by the fact finding tribunal on a common-sense basis by reference to the facts of each particular case. The question in each case is whether the alleged victim has been subjected to a detriment and, second, was it on the grounds of sex. Motive and intention of the alleged discriminator is not an essential ingredient, as in any other direct discrimination case, although it will often be a relevant factor to take into account. Lack of intent is not a defence. The second question must always be asked, but in a sexual harassment case, the answer will usually be quite clear without resort to a comparator, actual or hypothetical.

The essential characteristic of sexual harassment is that it is words or conduct which are unwelcome to the recipient and it is for the recipient to decide for themselves what is acceptable to them and what they regard as offensive. A characteristic of sexual harassment is that it undermines the victim's dignity at work. It creates an 'offensive' or 'hostile' environment for the victim and an arbitrary barrier to sexual equality in the workplace.

Because it is for each individual to determine what they find unwelcome or offensive, there may be cases where there is a gap between what a tribunal would regard as acceptable and what the individual in question was prepared to tolerate. It does not follow that because the tribunal would not have regarded the acts complained of as unacceptable, the complaint must be dismissed. It seems to us that there will be a range of factual situations which may arise, in relation to which there may be difficult problems of proof. It is particularly important in cases of alleged sexual harassment that the fact-finding tribunal should not carve up the case into a series of specific incidents and try and measure the harm or detriment in relation to each. As it has been put in a USA federal appeal court decision (eighth circuit) [USA v Gail Knapp (1992) 955 Federal Reporter, 2^nd series at page 564]:

"Under the totality of the circumstances analysis, the district court [the fact finding tribunal] should not carve the work environment into a series of incidents and then measure the harm occurring in each episode. Instead, the trier of fact must keep in mind that "each successive episode has its predecessors, that the impact of the separate incidents may accumulate, and that the work environment created may exceed the sum of the individual episodes."

Thus, for example, as here, a blatant act of a sexual nature, such as the deliberate looking up of the victim's skirt whilst she was sitting down, may well make other incidents, such as asking to be shown personal photographs which the victim was looking at work, take on a different colour and significance. Once unwelcome sexual interest has been shown by a man in a female employee, she may well feel bothered about his attentions which, in a different context, would appear quite unobjectionable.

As to whether the conduct is unwelcome, there may well be difficult factual issues to resolve. In general terms, some conduct, if not expressly invited, could properly be described as unwelcome. A woman does not, for example, have to make it clear in advance that she does not want to be touched in a sexual manner. At the lower end of the scale, a woman may appear, objectively, to be unduly sensitive to what might otherwise be regarded as unexceptional behaviour. But because it is for each person to define their own levels of acceptance, the question would then be whether by words or conduct she had made it clear that she found such conduct unwelcome. It is not necessary for a woman to make a public fuss to indicate her disapproval; walking out of the room might be sufficient. Tribunals will be sensitive to the problems that victims may face in dealing with a man, perhaps in a senior position to herself, who will be likely to deny that he was doing anything untoward and whose defence may often be that the victim was being over sensitive. Provided that any reasonable person would understand her to be rejecting the conduct of which she was complaining, continuation of the conduct would, generally, be regarded as harassment. But at all times, the tribunal should not lose sight of the question at issue: was the applicant subjected to a detriment on the grounds of her sex. The answer to that question does not depend upon the number of incidents. A one-off act may be sufficient to damage her working environment and constitute a barrier to sexual equality in the work-place, which would constitute a detriment.