United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S J BROWN (of Counsel) Instructed by The Treasury Solicitor Queen Anne's Chambers 28 Broadway London SW1H 9JS
For the Respondent	MS C RAYNER (of Counsel) Instructed By: Thompsons Congress House Great Russell Street London WC1B 3LW


 


MR JUSTICE MAURICE KAY: By a Decision dated 11 January 2000 and following a hearing which had lasted some eleven days, an Employment Tribunal at London (South) decided that the Ministry of Defence (MOD) had unlawfully discriminated against the Respondent (KW) on the grounds of her sex. The MOD now appeals against that Decision. The grounds of appeal raise a number of issues. Before turning to them it is necessary for us to set out the Employment Tribunal's findings of fact.

18. Service Children's Education is an Agency of the Ministry of Defence, which provides an education service for the children of UK servicemen and women overseas. It has fifty-three schools in ten centres and employs some 800 teachers and between one and two thousand other people. Following recent cuts in the armed services, its role has been reducing. It operates a variety of contracts of employment and for the purposes of this case we concentrate only upon its educational psychologists.

19. Paul Niedzwiedzki is the Assistant Chief Executive of the service and he is the line manager of Carol Wallis the Principal Educational Psychologist.

20. Educational Psychologists are usually recruited from the United Kingdom, where they typically work with local education authorities, to work on a three year contract in Germany. The contract is expressed as being for a fixed term and excludes the operation of the Employment Rights Act to protect against an unfair dismissal complaint upon the expiry of the contract.

21. There was, however, in the contracts made in 1995 and before, a phrase 'you have been recruited with the possibility of being considered for a permanent post', and we accepted evidence that the majority of Educational Psychologists who wanted a permanent post in the 'Permanent Cadre' were granted permanent positions.

22. Also in the contract was a declaration that the Civil Service as an equal opportunity employer insisted that there must be no discrimination on the grounds of gender, marital status, race or ethnic origin etc whether in recruitment, training, promotion or in any other way. Incorporated into the contract is a grievance procedure and a detailed equal opportunities statement. During the events we describe the procedure for harassment complaints was incorporated first in a Defence Council Instruction DCI Gen 264/95 and one year later into an equal opportunity statement and annex thereto.

23. Service Children's Education had its headquarters in Rheindahlen where the Chief Executive, his assistants, the personnel officer and Ms Wallis were based. In Germany there were five other centres, each containing one or two educational psychologists and a small administrative staff.

24. In 1995 vacancies arose for two educational psychologists and one of the successful Applicants was KW. She was then a single woman in her mid 30s and was well qualified and experienced in educational psychology in the North East of England. We observed her giving evidence for four days and like her employers were impressed with her considerable strength of character and personality. She had mainly lived at home with her parents but was in the Royal Naval Volunteer Reserve. She had lived in Hong Kong for some time and was widely travelled and impressed as somebody who could look after herself and relate well among the English community in Germany. She had recently been mugged in the street in England and as a result had developed a fear of living in ground floor accommodation, particularly if it was insecure.

25. It was the task of her employers to provide accommodation and she was due to go to Germany on 1 December 1995 to commence her duties at Osnabruck which was 100 miles from Rheindahlen. Miss Wallis therefore asked AF the only Educational Psychologist then stationed at Osnabruck to meet KW and arrange her accommodation and drawing up of her induction programme. On 28 November 1995 AF telephoned KW at her home and informed her that there was no Mess accommodation available in Osnabruck, that her flat was not yet available to occupy and hotel accommodation would be inconvenient. He told her that she would therefore be residing with him and his family on her arrival. She was surprised by this, but not wanting to cause difficulties when taking up her new post went along with the arrangement. Miss Wallis in a letter of 22 November approved this arrangement. It was clear to us that for whatever reason KW valued her privacy and liked to be in control of her own life.

26. As we have said AF was not called to give evidence to us, but from the description of others we picture him as a competent psychologist, a family man with a wife and three children, a warden at his local church and something of a ladies man. This was confirmed in a letter written by Anne Powell-Davis (an Area Educational Psychologist) to the Investigator, who described him as "very tactile with colleagues". He seems to have been well liked by the staff. Before KW's arrival he had been Area Educational Psychologist which meant that as well as his professional work, he had an administrative responsibility for the office at Osnabruck, a task which KW took over from him when she was appointed.

27. She arrived in Germany on 1 December as arranged and was collected by AF at the airport and taken to the family home where she lived for a week until 8 December. She was upset by AF's familiarity. He would call her sweetheart, describe her as his fantasy woman, the perfect au pair for his home and the envy of his friends. She found it difficult in his home and before his family to rebuff these familiarities. He asked her personal questions about why she was not married, and about her clothes. He said that her presence at the Osnabruck office made him feel alive again and she was vibrant, young, bouncy and fun. He would go into her room and look at her personal clothing. He was clearly excited by having an attractive and young female working with him and staying at his home. She felt that she had to go along with his wishes about going to church with him and going for walks.

28. On 8 December the allocated army flat had become available and her belongings were delivered from England. AF wanted to help her unpack but she did not want him handling her possessions and declined his offer. Nevertheless he visited her at her flat which she felt was intrusive. The flat was on the ground floor. This upset KW following her mugging experience and she immediately asked for a first floor flat making clear her concern, but the move could not be arranged until after Christmas. The following week she entertained her mother and went back to England for a few days but returned to Osnabruck on 18 December 1995 in preparation for a visit to Ms Wallis at Rheindahlen on 19 December to meet the team and to see Ms Wallis herself for lunch on 20 December at the headquarters. AF made all the arrangements for the visit and drove her there on the pretence that he had an appointment at headquarters at the same time. He told her that no mess accommodation was available there and that a secretary had arranged hotel accommodation overnight. They went to Rheindahlen in KW's staff car with AF driving it. Apparently this was a usual arrangement for a newly employed person that a colleague would as part of the induction process drive her around for the first few weeks. He had arranged for them to stay at The Lindenhof hotel at Hardt.

29. On arrival AF checked them in, in German. He turned to KW and explained that there had been a mix-up and the only rooms available were a large dormitory type room and a small back room downstairs overlooking a yard and a lane and next to the bar. KW had made it clear to the Ministry of Defence and AF that she would not accept ground floor accommodation, but AF instead of accepting that room himself persuaded her to share the large room with him. She was most reluctant to do so, but because she was alone in a new country without credit facilities or cash and it was night she agreed if they got dressed and undressed in the bathroom only. They slept at opposite ends of the large room and they turned off the lights as soon as they were in bed and there was no discussion. Therefore after a meal at a local restaurant they retired for the night and nothing untoward occurred. KW described herself as being uncomfortable and dismayed at the arrangements. After lunch with Ms Wallis the following day, AF collected KW to return to Osnabruck. This time she drove. The weather was bad and during that journey, AF asked her personal questions, touched her and stroked her. He said she was the object of his sexual fantasy and stroked the back of her neck and leg. She was distressed to the point of tears; he wiped them away and licked his fingers afterwards. He asked questions about her sex life and how she was coping without a regular sex partner.

30. The combination of this unwelcome attention and the fact that she only had a ground floor flat was clearly affecting her. She was due to be alone at Christmas time and therefore accepted an invitation from Mrs F in early December to join them for Christmas and bought presents for his children. She complained about AF's attention to Mr Sanders and she asked Mr Sanders, the Social Worker stationed in their office at Osnabruck to accompany them on a shopping trip on the 21 December. Mr Sanders could not remember this and we could conclude nothing from it. She went to a party at AF's house on 23 December and for lunch on 24 December. She attempted to leave after lunch but AF had taken her car keys from her handbag and stood in front of the door to prevent her going. This incident was confirmed by AF's wife. KW had to be quite firm to get away.

31. He rang her again that evening and again she had to be firm with him . She went to AF's home for Christmas lunch and returned home that evening despite requests that she stay with the family.

32. On the evening of the 27 December 1995 she became violently ill with sickness and diarrhoea and went into the camp sick bay. AF and his wife visited her frequently and she asked that VF (the wife of AF) collect some personal things from her flat and specifically emphasised that nothing else should be touched. Despite this AF went to her flat, went through her personal belongings and unpacked her cases. He arranged furniture, placed pictures on the walls and said words to her like 'you cannot get to know someone really well until you have been through all their intimate possessions'. Upon her discharge AF wanted her to stay with his family but she returned to her flat, without informing him to avoid this. He then called at her flat late in the evening.

33. At work he was equally intrusive, although his attention was clearly not welcome. On 10 January in the presence of staff while she bent down to get a file from the filing cabinet, AF who was on the telephone coiled the telephone cord around her shoulders and did a jig with it. Ms Wallis later reported that Mrs Prosser told her that AF was treating KW 'like a bimbo, making lewd gestures, comments and movements'.

34. As a result of all this KW asked Ms Wallis that she be allowed to travel alone and not accompanied by AF. This was agreed.

35. AF's behaviour was noticed by the two secretaries, Mrs Prosser and Mrs Ritchie, and Mrs Prosser contacted Ms Wallis on the 12^th January to express her concerns. Ms Wallis talked with KW who confirmed Mrs Prosser's report. She spoke with Paul Niedzwiedzki the Assistant Chief Executive, and they decided to follow the informal harassment guidelines. She sent for AF and had a strong talk with him. She told him that KW felt harassed by him and that it must come to an end. (She stated that she believed AF was besotted with KW). His reaction was one of total hurt, he was stunned. She confirmed her reprimand by letter.

36. AF reacted by becoming icy towards KW. He would not join in meetings, not co-operate in office matters and generally became unpleasant. This was particularly awkward for KW because she was in effect taking over his job as administrative officer at the Osnabruck Centre. He was the only other professional psychologist there and she therefore relied heavily upon him. Life clearly became miserable for her. She reported this to Ms Wallis who tried again to tell AF to behave in a co-operative but proper manner. We find this comment in her witness statement significant. 'It should be appreciated that I was the line manager to both of them and it was not my role to undertake any investigation on behalf of KW but to pass on KW's complaints to the Chief Executive/Assistant Chief Executive for action by them as they considered appropriate'.

37. The atmosphere at the office did not improve. KW and AF were communicating by written memoranda. He would not attend meetings and accused KW of betraying him. Clearly the informal route, quite properly taken by Ms Wallis was not working, and in February 1996 KW wrote to Ms Wallis requesting a full investigation of events at Osnabruck. There is some dispute about when she in fact asked for formal procedures, but without doubt she wrote on 24 March because on 5 April Ms Wallis wrote to her, 'I write to confirm I received your letter of 24 March regarding your complaint of sexual harassment and associated difficulties in your working practice following from this. I acknowledge your request that formal procedures be put into place to resolve these issues and will now seek advice as to how to advise you'.

38. We now pause in the narrative to state what those procedures were. They took three forms during the currency of these events, but essentially they are in similar terms being a Defence Council Instruction 264/95 which was current from the 15 September 1995 for one year and in an equal opportunities section of the MOD personnel manual which seem to have been current thereafter.

39. The informal procedures consist simply of the complainant contacting her line manager who will speak to the other party and register the complaint with the harassment helpline based in London. This registration will not appear on the offender's personnel file but is kept for reference in case of repetition. Ms Wallis to her credit carried out the informal procedure very well. She immediately spoke to AF and monitored the position thereafter, but she did not register the complaint. We are bound to conjecture whether throughout the whole procedure management was anxious to keep these allegations against a professional man who worked with children as far out of the limelight as possible, since it would reflect upon not only him but also the service in general.

40. The formal route provides for the complaint to be confirmed in writing, be acknowledged and brought to the alleged offender's head of establishment, in this case Mr Niedzwiedzki. It goes on: 'arrange to discuss the problem with your line manager or if you feel uncomfortable discussing the problem with your manager, discuss it with your personnel officer, harassment counsel or the Help Line instead. You should provide written records of the harassment incident and records of informal complaint meetings with the alleged offender and pass them to your line manager. Your harassment counsellor or any other assistant may help you prepare the records. Your manager will make a written statement using the recommended format. This must be agreed and signed by you'.

41. We summarise from then on. The forms are then referred to an investigation officer who interviews the alleged offender, the complainant and any witnesses and prepares a report to the head of establishment. The head of establishment must then consider the statements and decide whether formally to charge. (The Complainant does not receive a copy of this report). If he does then a disciplinary procedure is held under the chairmanship of a hearing officer, who may be assisted by another person. The hearing officer will examine the evidence, interview any witnesses, whose evidence is normally heard in the presence of the person charged. He will then make findings of fact and recommend an outcome and penalty if necessary.

42. The equal opportunities policy defines sexual harassment as 'unwanted conduct of a sexual nature or other conduct based on sex affecting the dignity of women and men at work. The unwanted nature of sexual attention is what distinguishes sexual harassment from friendly flirtatious or affectionate behaviour that is welcomed and based on mutual attraction. Sexual attention usually become harassment if it is persisted in once it has been made clear to the perpetrator that the recipient regards it as unwanted, although a single incident may constitute sexual harassment if it is sufficiently serious'.

43. To return to the narrative. Ms Wallis referred the formal complaint to Mr Niedzwiedzki for advice and she also recommended that AF be moved. She could accommodate this within the service and justify it in career terms so that it would not bear the stigma of a removal after complaint and 'having professional reasons and the needs of the service in mind'. However Mr Niedzwiedzki and his Chief Executive rejected this in May 1996 although it is fair to say that AF opposed it. This was a pity because there is reason to believe that had AF been moved at that stage KW would not have taken any further action. We believe her assertion that she was not vindictive but that she just wanted the icy relationship and interference with her management to cease. Ms Wallis and KW spoke together a number of times over the ensuing months. On one occasion Ms Wallis gave her a photocopy of a page of Defence Council Instruction containing a format for written complaints, KW telephoned the harassment helpline to get a complete copy of the Defence Council Instruction. She tried to register the complaint herself, but was told that only management could do this. The period between the end of April and the end of July was marked by misunderstandings. Management, relying on the Defence Council Instruction, was waiting for KW to put in a written statement. KW believed that having registered a formal complaint she would be contacted by an investigation officer or counsellor who would help her. These misunderstandings, coupled with the fact that the Osnabruck Centre was 100 miles from headquarters, was not provided with copies of the procedures and KW was there without a colleague in whom she could confide, and still only a few months into her employment, meant that everybody did nothing, expecting others to be doing the work. Even Miss Wallis, at Rheindahlen HQ complained that she was drip fed with information from Personnel.

44. Because KW lived within a very short distance of her office she was bound to meet AF and perhaps his family. She therefore felt compelled to move to another home in Munster at her employer's expense following the decision not to move AF, but this was a round trip of 160 kilometers adding two hours to her time away from home each day. Finally, KW got the full Defence Council Instruction and went to see Carol Wallis to discuss it in detail. Her visit was not convenient at that time and was not followed up by KW. Eventually KW wrote with brief formal details at the end of July.

45. Mr Niedzwiedzki confirmed receipt of this and a formal investigator Mr Stewart arrived and interviewed most people concerned during the course of August 1996. He noted KW's evidence and prepared a statement. She was shown this and amended it even so expressing some reservations. The report was sent to Mr Niedzwiedzki and KW was seen again on 26 November by a locally based Senior Assistant Education Officer, Mr Birkby to clarify some details. She then requested an early hearing but there was further delay until February 1997 when Mr Niedzwiedzki considered the situation, decided to charge AF, and prepared the paper work. Following a contact by the London based Equal Opportunities Advice Unit in January 1997 he apologised for 'an unfortunate combination of factors that had contributed to the delay in progressing your complaint'. He chiefly blamed KW for the delay in not putting in her formal complaint until July and in amending her witness statement. It is clear to us that KW's concern was that the question and answer procedure did not record or reflect her complaint In the event AF was charged with sexual harassing her or harassing her and a disciplinary hearing was convened for the 9 April 1997.

46. At a meeting between Ms Wallis and KW the procedure was discussed and Ms Wallis remarked that of the powers available to the disciplinary officer the outcome would probably be the minimum penalty, a reprimand. KW took from this a message that the outcome had already been decided and was upset. On balance we accept Ms Wallis' account. It was clear that in many of the conversations related to us each side had gone away from the meeting with a different message. This account therefore concentrates upon the proven events rather than the antagonists' account of them.

47. We do not recite in detail the events of the hearing. They are set out in our bundle, but as we have not heard the witnesses who were present at the hearing, nor is it our purpose to retry those charges, we need not dwell on the detail. It is clear that the hearing officers largely believed AF. They concluded that KW was suffering from stress brought on by work related problems and the difficulty she found settling in Germany as well as the harassment issues. In general they described AF as more coherent, deciding on the evidence that he was attracted to KW and that he did give much attention to her. In summary they found his time and attention more than would be expected and described it as an 'intrusion' if not sought by KW. From the evidence it was concluded that KW felt intimidated and the effects of this were visible to others. They found that it was inappropriate not to have given KW a choice of accommodation at a hotel as well as his house. So far as the Lindenhof hotel incident is concerned they found that they both agreed to sharing a room by mutual consent, and that KW's claim that she had no choice was not believable.

48. So far as contact during the car journey is concerned, they believed AF in his denial and they specifically found that KW failed to make her views clear to AF. Further they made this specific finding. 'AF's behaviour as a senior employee is of concern as is that of KW. The management systems and relationships within the service leave much cause for concern'. They go on 'On the balance of evidence presented the charge of sexual harassment is not proven. Based upon the definition of sexual harassment set out in the personnel manual, sexual harassment can only occur if it persists, once it has been made clear to the perpetrator that the recipient regards the attention as unwanted. The evidence suggests that KW did not make this clear to AF. On the balance of evidence presented the charge of harassment is found proven. The evidence as presented supported that KW felt intimidated and the effects of this were visible to others. However it is not possible to say what level of stress was caused by the behaviour of AF and what was caused by other factors in KW's life.

49. They went on to recommend a reprimand. They describe it as light for the offence but justified it on the basis of AF's previous good record, and because they were not certain how much of KW's distress was caused by his behaviour. They added 'the case has taken an unacceptably long time to come to this stage seventeen months from the alleged offences. The case has had a damaging effect on the morale and effectiveness of the child guidance centre in Osnabruck. Work needs to be put in hand to restore the credibility and effectiveness of the service provided'.

50. We have to say we find the conduct of the hearing and its decision strange. They did not call key witnesses Mrs Prosser and Miss Powell-Davis, or question those who were called about significant incidents which were in their written statements and clearly demonstrated the serious nature of the harassment. Nor did they attempt to resolve differences between their evidence. They also drew inferences from untested allegations namely that KW's parents were going through a divorce. If they believed AF why did they find him guilty of anything? He is criticised for not offering to find her a hotel when she first arrived and for going through her personal possessions if he was not asked to do so. During the hearing they note that AF could have gone to the ground floor room of the Lindenhof hotel but they do not criticise him for this in their conclusion. It seems to us upon the facts of this case that any finding of harassment must inevitably involve sexual harassment.

51. The decision was communicated to AF and KW by letter dated 19 May from Mr McDermott the personnel officer. It says 'the charge of sexual harassment is considered not proven. However the charge of harassment is considered proven in that your behaviour to KW was regarded as intrusive. Clearly your conduct has fallen short of the standards expected of an SCE employee. It has therefore been decided that a penalty of a reprimand be imposed and a warning as to future conduct'. The letter to AF informed him of his right to appeal. By contrast the letter to KW fails to let her know of her right to raise a formal grievance if she was not satisfied.

52. On 11 June Ms Wallis instructed AF to relocate his post to join the Rheindahlen team as soon as feasible and in any event in time for the move to Wegberg currently scheduled for the week beginning 30 June 1997.

53. The move did not go smoothly. AF did not move house so that his family was still in Osnabruck and the process of moving his papers and equipment caused KW great distress. Materials were removed from the office without her authority. He visited out of office hours and removed a number of items leaving all the doors unlocked in breach of security procedures. KW therefore had cause to write to Ms Wallis on 8 July complaining about this. Ms Wallis replied confirming that AF was acting upon her instructions and supporting his action. Shortly before this AF resigned. On 7 July Miss Wallis notified all staff of his resignation and he left on 30 September. Therefore no action was taken to remove his family from Osnabruck in the meantime.

54. KW was not satisfied with the outcome of the disciplinary hearing and complained of it initially herself and finally through her union who registered a grievance. However the presentation of the first Originating Application in December 1997 brought that grievance to a halt.

55. We now turn to the last major part of this case. It would be recalled that KW had been appointed upon a three year fixed term contract with the possibility of renewal, and the evidence was; that up to 1997 anyone on a three year contract who wanted to stay was allowed to do so by being appointed to the 'permanent Cadre'. Others who so wished were granted short-term extensions to their contract. However during 1997 management decided to bring this to an end. Mr McDermott told us that it was because of legal problems in a number of cases brought to the Industrial Tribunals, Mr Niedzwiedzki told us that it was because they thought that Educational Psychologists (though strangely not Senior Psychologists nor the Principal) should always have recent experience in England, and therefore the service required consistent renewal at its basic grade. Ms Wallis gave yet a different account, but whatever the truth of this it is clear that a policy decision was made. Other officers were told of this and secured jobs in England before their contracts expired.

56. On 16 July 1997 KW became ill and was admitted to hospital with severe stress. Her general practitioner telephoned Ms Wallis and was told that KW's contract would not be renewed when it expired in December 1998. She came away from that telephone conversation with the firm impression that KW was totally without support or sympathy from management. Subsequent correspondence on which we need not dwell made it clear that management were not prepared to offer her an extension of contract or a permanent contract.

57. After her release from hospital in early August, the lack of support noted by her GP continued. Miss Wallis contacted personnel asking how to deal with her sickness, if necessary by disciplinary action. AF wrote to Miss Wallis complaining about KW. A meeting between Miss Wallis and KW in the office on 21 August resulted in Miss Wallis declining to meet with KW unless a third person was present. It is clear to us that this lack of support continued during the following months. Miss Wallis did see KW on her own in October 1997 but solely to reprimand her about her car.

58. In September KW went to the United Kingdom approved on an RNVR training course. She drove to the airport in her staff car, which broke down. It was recovered by the Army Transport department, who wrote to her managers criticising the state of the car in no uncertain terms. It was dirty and untidy and they alleged she had put the wrong fuel into it, thus causing the breakdown. They were not prepared to return the car to her upon her return. Ms Wallis wrote to KW asking for an explanation, when KW returned she replied denying that she had put the wrong fuel in the car and explaining the incident generally. In the event nothing came of it and the car was returned to her. KW complains that this an example of victimisation. We reject that and suspect that it is an attempt to find an event within a period of three months before the presentation of her Originating Application.

59. KW instructed solicitors herself early in 1997 and there was correspondence between them and her managers making clear the position. However she ran out of money to instruct them further in August and instead spoke to her professional association who themselves instructed solicitors, provided by another union. However, as the magnitude of this case and its complications became clear the union took the decision to instruct Messrs Thomsons who are well known employment lawyers. Instructions reached them on 3 December 1997 and by 11 December 1997 the first Originating Application was presented.

60. Despite all this the Applicant continued to do her work and attended work even against the advice of her doctors. From time to time she became tearful and had to go home early and this led to some complaints of her not keeping appointments.

61. On 13 March 1998 she was admitted to hospital again in Osnabruck and on 9 April was transferred by air to an MOD hospital at Haslar in Portsmouth where she was under the care of a Consultant Psychiatrist, Dr Khan. On 9 June she was transferred to the Defence Service Rehabilitation unit at Hedley Court, Epsom and did not leave there until 28 November 1998 two days before her contract expired. On 4 December 1998 she presented her second Originating Application.

62. The immediate cause of her admission to hospital in March was numbness in the arm and leg, which was subsequently diagnosed as a stroke. Dr Khan concluded by elimination of other causes that the cause was extreme stress. In a report dated 5 June 1999, he said that the long term prognosis was poor. However, KW has gone back to work again part time and any propensity to blood-clotting is being controlled by aspirin."

The Employment Tribunal concluded:

"We are satisfied that there is in this account ample proof of sexual harassment by AF and thereafter a measure of indifference by management."

At the end of the Decision they posed five questions and answered them as follows:

"I. Did the acts of harassment occur? Answer – yes.

II. Were they done on the grounds of the Applicant's sex? Answer – yes.

III. Were those acts of harassment done in the course of employment? Answer – yes.

IV. Were the acts by management acts of simple discrimination or discrimination by way of victimisation? Answer – both.

V. Are the complaints time barred. Answer – no."

From time to time it will be necessary for us to refer to some of the reasoning which preceded these conclusions.

The grounds of appeal to the EAT run to some ten pages. We shall approach the case by considering them under three headings: (1) time limits; (2) sexual harassment; (3) discrimination and/or victimisation.

1. Time Limits

By section 76 (1) of the Sex Discrimination Act 1975:

"(1) An employment tribunal shall not consider a complaint … unless it is presented to the tribunal before the end of –

(a) the period of three months beginning when the act complained of was done."

So far as continuing acts are concerned, "any act extending over a period shall be treated as done at the end of that period" (section 76 (6) (b)). If the three month period is exceeded, section 76 (5) enables the Employment Tribunal nevertheless to consider the complaint "if, in all the circumstances of the case, it considers that it is just and equitable to do so".

The findings of the Employment Tribunal on time limits in the present case were expressed as follows:

"It should be evident from our findings of fact that the Respondents' treatment of the Applicant through the acts and omissions of its various employees constitute a single continuing act of discrimination which was to her detriment.

The act continued until at least the autumn of 1997 and probably beyond. Moreover the acts of victimisation by failing to extend her contract, started in July of 1997 and continued throughout by the Respondents over many weeks and months thereafter.

It is therefore our decision that no time point under Section 76 arises, but even if we are wrong we have no doubt that it is just and equitable to consider this case. The Applicant had done her best to seek an internal resolution of her complaints and any delay after the notification of the result of the disciplinary hearing was attributable to the time it took her, her solicitors and then her union and its solicitors to gather information from a client in Germany and to seek authorisation for the inevitably expensive legal support throughout these proceedings.

Moreover even at the time of the presentation of the first Originating Application her grievance against the result of the disciplinary proceedings was outstanding."

The grounds of appeal which seek to attack these findings fall into two parts. The first relates to the finding of a continuing act. The second concerns the exercise of the "just and equitable" discretion under section 76 (5).

(1) Continuing Act

The rival contentions before the Employment Tribunal were: on behalf of KW, that there was either continuing discrimination or victimisation or both from her arrival in Germany until at least the end of September 1997 when AF left or a practice or regime commencing with sexual harassment in December 1995 and continuing until the termination of her employment; on behalf of the MOD, that the matters complained of (no discrimination of any kind being admitted) fall into different and separate phases, for example sexual harassment in December 1995 and January 1996, culpable failure properly to investigate and take action on the complaint between January 1996 and April 1997, defective disciplinary hearing in April 1997 and victimisation in the form of not extending KW's contract thereafter. The MOD put this final matter in July 1997 and the submission therefore was that there had been (if established) a series of separate acts and omissions all of which had come to an end more than three months before the first complaint was presented to the Employment Tribunal.

In repeating that position before us, Mr Brown referred to the well-known statement of principle in Owusu v London Fire and Civil Defence Authority [1995] IRLR 574 (EAT) at paragraphs 21 – 22:

"The position is that an act does not extend over a period simply because the doing of the act has continuing consequences. A specific decision not to upgrade may be a specific act with continuing consequences. The continuing consequences do not make it a continuing act. On the other hand, an act does extend over a period of time if it takes the form of some policy, rule or practice, in accordance with which decisions are taken from time to time. What is continuing is alleged in this case to be a practice which results in consistent decisions discriminatory of Mr Owusu.

It would be a matter of evidence for the tribunal as to whether such a practice … in fact exists. It may be that, when explanations are given by the respondents, it will be shown that there is no link between one instance and another, no linking practice but a matter of one-off decisions with different explanations which cannot constitute a practice."

This is an important statement of principle but its language was clearly tailored to the sort of circumstances that were in issue in that case. The words "policy, rule or practice" cover many factual situations. What is alleged by KW in the present case is something akin to a regime – not necessarily the result of premeditation or concession – in which sexual harassment occurred, was treated with discriminatory indifference and eventually victimisation. We are quite sure that when such an allegation is established it is capable of being subsumed under the umbrella of a "continuing act". In such a case it would be excessively schematic to divide it into separate phases.

The next task is to see how the Employment Tribunal approached this issue. It is clear that it considered that there was an unbroken sequence which amounted to continuing discrimination in different forms from December 1995 "until at least the autumn of 1997 and probably beyond". There was sexual harassment by AF "and thereafter a measure of indifference by management" leading ultimately to victimisation in the form of not extending KW's contract. Was there an evidential basis for this conclusion? In our judgment, there was. There is a sufficiency for it in the recorded findings of facts. In any event, we are mindful of the fact that those findings were, in the words of the Tribunal, summarised "only in the briefest terms" after ten days of evidence. At one stage we did wonder whether the continuity might have been broken immediately after 12 January 1996, especially since the Tribunal concluded that the initial handling of KW's complaint by Carol Willis was carried out "very well". However, it is apparent from a close scrutiny of the Decision that, whereas overt acts of harassment by AF did not continue after 12 January, he continued to act towards her in a discriminatory way – "icy … generally unpleasant" – by reason of her sex and her response to his harassment and that appears to have continued beyond the time when the indifference of management became manifest. Indeed, Carol Willis failed to register the original informal complaint.

Continuity is essentially a matter for fact for the Employment Tribunal. We are satisfied that its findings on this issue are unassailable.

(2) Discretion

In view of our conclusion on continuity, the discretionary extension of the time limit on just and equitable grounds does not really arise. However, we shall deal with it in deference to Mr Brown's detailed submissions. Those submissions ranged far and wide but, for present purposes, they can be reduced to the following propositions: (i) the factual findings in relation to the history of the delay were perverse; and (ii) the Employment Tribunal did not carry out a proper balancing exercise, in particular by weighing the prejudice occasioned to the MOD by the delay against the lack of any credible explanation for the delay. There is a difficulty in relation to the first of these submissions, flowing from the fact that the Employment Tribunal, which had justifiably abbreviated its factual findings, was here dealing with an issue "in the alternative" in that, having regard to the primary finding that the complaint was presented in time, the issue did not strictly require resolution. It is therefore unsurprising that the factual findings in relation to it were expressed tersely. Whilst Mr Brown's submissions about "who knew what and when" may have some merit, we do not feel able to conclude that the factual findings of the Employment Tribunal were perverse. Moreover, even if that submission had been sustainable, in our judgment it does not necessarily follow that the subsequent exercise of discretion was wrong. We are totally unpersuaded that the Employment Tribunal erred in its approach to the carrying out of a balancing exercise or that it did not properly consider the question of prejudice to the MOD. It is true that KW's allegations developed over the months but it is hardly fair, for example, to criticise her for her late disclosure of the "Rheindahlen incident" when the initial disclosure of it came from AF, albeit in a somewhat different form. The apparent loss of KW's 1996 diary - a matter specifically referred to by Mr Brown as prejudicing the MOD – seems to us to have been at least as likely to have prejudiced KW. The diaries which were available - 1995 and 1997 – made no mention of sexual harassment. Her inability to produce a diary which she had said she would rely on would hardly advance her case in those circumstances. It is worth recalling that the Employment Tribunal did not accept all her evidence in any event – far from it. It seems to us that the difficulty faced by the MOD in this case was not the absence of documents or the professed failure of recollection of a potentially important witness – Mr Saunders – but was the inevitable result of their decision not to call their former employer AF. That was the result of a tactical decision in the light of circumstances (his reluctance) rather than of the passage of time. It is not as though they did not know AF's version of events. He had given it to the disciplinary hearing in April 1997.

We are satisfied that it would have been open to the Employment Tribunal, on the totality of the evidence in this case, to conclude that it was just and equitable to extend time. We do not accept that the Decision manifests a failure properly to consider relevant matters, including potential prejudice to the MOD. Moreover, it seems to us that, having regard to the matters to which it was entitled to attach, and clearly did attach considerable weight, including in particular KW's endeavours to resolve the matter through internal procedures, the exercise of discretion is not susceptible to appeal on the ground that it is plainly wrong.

2. Sexual Harassment

The next grounds of appeal relate to the findings of sexual harassment of KW by AF. Mr Brown criticised the approach of the Employment Tribunal to the law and the evidence. He further submitted that, in any event, the MOD should not have been held vicariously liable for the acts of AF.

(1) The Law

The most complete exposition of the correct approach to cases of alleged sexual harassment is to be found in (1) Reed and (2) Bull Information Systems Ltd v Stedman [1999] IRLR 299. Giving the judgment of the EAT, Morison J said:

"…'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." (Para 25)

Morison J then described the essential characteristics of sexual harassment as:

"… 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." (Para 27)

He then referred to difficulties of proof, adding:

"It is particularly important … 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.

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." (Paras 28 – 29)

And, in acknowledging that difficult factual issues may arise in relation to what is "unwelcome", he said:

"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." (Para 30).

This most helpful exposition has been adopted and built upon more recently by the EAT in Driskel v Peninsula Business Services Ltd [2000] IRLR 151, especially from paragraph 12 (Holland J). Mr Brown also referred to the EC Code of Practice with which, in our judgment, these recent decisions of the EAT are entirely consistent. It also seems to us that paragraph 42 of the findings of fact by the Employment Tribunal in the present case (supra) is taken from that Code of Practice.

All this leads us to conclude that if the Employment Tribunal approached the law consistently with what was said in Reed and, later, Driskel, it did not fall into legal error. Mr Brown submitted that it erred by not considering whether or not KW had made it clear to AF that his attentions were unwanted. However, we do not consider that this submission is correct. The first observation of the Employment Tribunal under the heading "The Law" was:

"It is not contested that if what the Applicant says is true, she was sexually harassed by AF … . It was, if proved, unwanted conduct of a sexual nature or conduct based on her sex affecting the dignity of women at work, and was conduct which she made clear was unacceptable."

We do not propose to refer to more of the findings than are necessary, but they include, in relation to the Rheindahlen trip:

"AF asked her personal questions, touched her and stroked her. He said she was the object of his sexual fantasy and stroked the back of her neck and leg. She was distressed to the point of tears; he wiped them away and licked his fingers afterwards. He asked questions about her sex life and how she was coping without a regular sex partner.

The combination of this unwelcome attention and the fact that she only had a ground floor flat was clearly affecting her … .

At work he was equally intrusive, although his attention was clearly not welcome."

On 12 January 1996, one of the secretaries (Mrs Prosser) contacted Carol Wallis to express her concerns. In her view, AF was treating KW "like a bimbo, making lewd gestures, comments and movements".

We are satisfied that the Employment Tribunal applied the law consistently with the authorities to which we have referred and asked itself the correct questions when considering whether there had been sexual harassment.

(2) The Evidence

Mr Brown submitted that some of the findings of fact in relation to sexual harassment were inconsistent with the evidence. For example, he contended that the findings were inconsistent with undisputed evidence about the way in which KW conducted herself in relation to AF or about the presence of others, including AF's children, at certain times such as when he went to KW's flat or when he took her car keys to prevent her from leaving (paragraphs 28 and 30). In our judgment these are unsustainable submissions. KW was not necessarily making "wholly inconsistent claims". The Employment Tribunal, mindful of the complexities and subtleties of relationships, was entitled to conclude that there was sexual harassment notwithstanding that some of it took place openly and/or without express protest.

It was also suggested that the Employment Tribunal drew inappropriate inferences. This centred on a passage in the findings in relation to the "Rheindahlen incident":

"AF made all the arrangements for the visit and drove her there on the pretence that he had an appointment at headquarters at the same time."

Whilst there was material to the effect that Mrs Prosser played a part in the making of the arrangements, there was also evidence from KW justifying the inferences that Mrs Prosser was acting on the instigation of AF and that the appointment was indeed a pretence.

(3) Vicarious Liability

Mr Brown's final submission on sexual harassment was that, even if it is proved against AF, the MOD is not liable for it because, apart from some incidents which occurred at the workplace such as the "telephone wire incident" referred to at paragraph 33 of the findings of fact, there was insufficient nexus between the matters complained of and AF's employment by the MOD.

It is clearly established that the liability of an employer in this area is not confined to the circumstances which give rise to vicarious liability at common law. The 1975 Act, section 41(1) provides:

"Anything done by a person in the course of his employment shall be treated for the purposes of this Act as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval."

There is a similar provision in section 32(1) of the Race Relations Act 1976. In Jones v Tower Boot Co Ltd [1997] IRLR 168 (CA), Waite LJ said that it would be wrong to construe "in the course of employment" in a racial harassment case by applying "a common-law principle evolved in another area of the law to deal with vicarious responsibility for wrongdoing of a wholly different kind" because to do so "would seriously undermine the statutory scheme of the Discrimination Acts and flout the purposes which they were passed to achieve." (para 42). He added (para 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 circumstances 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."

This was applied by the EAT in Chief Constable of the Lincolnshire Police v Stubbs [1999] IRLR 81 in which Morison J drew a distinction between incidents away from the workplace but which are "extensions of the workplace" (in that case police officers who had gathered in a public house) and "chance meetings" of work colleagues, for example in a supermarket. Stubbs, at least, was cited to the Employment Tribunal in the present case.

Can this question of fact be said to ripen into a point of law in the present case? In our judgment, it cannot. On the facts as found and in the circumstances of the relationship between KW and AF we have no doubt that the Employment Tribunal was entitled to find that the harassment took place in the course of AF's employment

3. Victimisation and/or Discrimination

The grounds of appeal advanced under this heading raised a number of points. Mr Brown's first submission was that it is unclear from the Decision of the Employment Tribunal whether the adverse findings in relation to management extend to discrimination in various forms from an early stage in 1996 onwards, including victimisation in the decision not to extend KW's contract in 1997, or whether they are limited to that specific matter. We detect no such lack of clarity. Under the heading "Discrimination", the Tribunal stated that:

"KW clearly suffered by direct harassment from AF and by indifference and delay thereafter. We have considered [the MOD's] explanation and do not accept it. We have no doubt that discrimination during the course of her employment is proved and it includes victimisation."

They then went into some critical detail about the parts played by Ms Wallis and Mr Niedzwiedzki before concluding:

"But above all the system failed KW. A detailed and comprehensive procedure capable of dealing with KW's complaint was therefore fatally undermined by the individuals concerned, limiting the effect of their actions and supported by the assessment of the role each of them should play. None of them saw it as his/her role to extend the helping hand that was envisaged by the procedures to assist an isolated and stressed employee."

This, of course, has to be read in conjunction with the findings of fact which we have set out; the reference in the conclusions on time limits to the MOD's treatment of KW "through the acts and omissions of its various employees [constituting] a single continuing act of discrimination"; and the final relevant questions and answer:

"Were the acts by management acts of simple discrimination or discrimination by way of victimisation? Answer – both."

In our judgment it is abundantly clear that the Employment Tribunal decided that there was discrimination by management which continued over a lengthy period and eventually took the form of victimisation in the form of refusing to extend KW's contract. Moreover, in this and in all other respects we are satisfied that the Employment Tribunal, whilst it set out its Decision in an unusual form, complied with its duty to give adequate reasons in accordance with Meek v City of Birmingham District Council [1987] IRLR 250.

Mr Brown next submitted that some of the findings of fact which were critical of management were perverse or inconsistent with the evidence. We do not consider that that has been established in relation to any of the significant findings. It has to be remembered that this was a ten-day case. Cherry picking from the evidence is a dangerous game. In his engaging in it we were left with the clear impression that Mr Brown consistently lost sight of the evidence of KW. We do not propose to go into greater detail in relation to this issue. We should add that we are satisfied that the approach of the Employment Tribunal was consistent with the well-known principles expounded by Neill LJ in King v The Great Britain-China Centre [1992] ICR 516, 528 – 529, which were fully set out in the Decision.

In the course of the Decision, the Employment Tribunal admitted to having found that the issues surrounding the refusal to extend KW's contract "were difficult". It expressed its conclusions thus:

"There is not a scrap of paper to support the [MOD's] policy decision, which is strange in a large public department. On the other hand, there was no evidence of anybody having their appointment extended or renewed after 1997. However, we attach weight to Mr McDermott's evidence that whilst permanent appointments had ceased, an extension could have been granted if supported by management. His words were 'the rules are not so rigid that extension cannot be considered if justified'. The evidence was that at the end of 1998 two locums were being employed to cover KW's absence and Ms Wallis was covering for the absence of a Psychologist on long-term sick leave. It was clear that there was a need for employees.

We therefore accept that a permanent position would not have been offered but there was a need for employees and there was no criticism of [KW's] performance in her job.

We therefore conclude that the failure to grant an extension was caused by the fact that [KW] had brought a formal complaint and it was therefore an act of victimisation."

Mr Brown sought to challenge this conclusion, essentially on the basis of perversity. He also submitted that the Employment Tribunal ought to have used two other psychologists – Mrs Powell-Davis and Mr Tasker – as comparators, neither of whom had had their contracts extended and neither of whom had complained of sex discrimination. (It seems, from page 78F of the Bundle that Mrs Powell-Davis had previously secured another post in the United Kingdom in any event).

We are not impressed by these submissions. The conclusions of the Employment Tribunal in this issue were reasoned and, in our judgment, tenable. There was material from which it was permissible to conclude that the failure to grant an extension in KW's case was "caused by the fact that she had brought a formal complaint". It is also clear that the Tribunal was unimpressed by the explanations proffered by the MOD witnesses on this issue. We do not consider that to be perverse. Nor do we consider that the Tribunal lapsed into legal error in relation to comparators. In Aziz v Trinity Street Taxis Ltd [1988] IRLR 204 (CA) Slade LJ stated (at para 49):

"… The treatment applied by the alleged discriminator to the complainant has to be compared with the treatment which he has applied or would apply to persons who have not done the relevant protected act."

In the present case it is implicit in the Decision of the Employment Tribunal that they came to the permissible conclusion in the light of all the evidence that KW would probably have been granted an extension of the kind contemplated by Mr McDermott if she had not made and pursued her formal complaint. In our judgment that was a valid approach in the circumstances of this case and was consistent with Aziz. The Tribunal was not bound to conclude that, because certain other psychologists had not had their contracts extended, the reason why KW's contract was not extended was probably unrelated to her complaint. In her helpful and succinct submissions, Miss Rayner took us through some of the contemporaneous documentation in relation to this issue. It, and the entirety of the evidence in the case, convinces us that the Employment Tribunal committed no legal error in this issue.

Conclusion

We have given this appeal the most careful consideration. We believe that in this judgment we have addressed its essential points. Like the Employment Tribunal, we do not claim to have referred to every point raised in a hearing which lasted over three days. We have tried to reduce an appeal which had something of a scatter gun approach to its real issues. Having done so, we have come to the conclusion that none of the grounds of appeal is sustainable, that the Decision of the Employment Tribunal was free of legal errors, and that the MOD's appeal must be dismissed.