United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR S SPENCER (of Counsel) Employment & Safety Services Ltd 4 Copthall House Station Square Coventry CV1 2FL
For the Respondent	MR B JEPSON (Solicitor) Messrs Jepson & Co Solicitors 58 High Street Snainton Scarborough YO13 9AL


 


JUDGE D PUGSLEY: This is an appeal from a decision of the Employment Tribunal sitting at Leeds in which they found certain of the allegations of unlawful sexual discrimination on the grounds of sex to be well founded and rejected other complaints made by the Applicant. In particular, they found the complaints made in paragraphs 2, 5, 6, 8, 13 and 16 proved and dismissed the other complaints.

1. The Applicant commenced her employment, according to the findings of the Tribunal, on 10 June 1996. At that time she was 25 years of age. She had worked in the retail trade in various positions in large national retail chains. It was the intention of the Respondent that the Applicant should work as an NVQ Assessor for trainees in the retail trade. Although the Applicant had certain practical experience she was to be given training for her new position by a Mrs Symons who acted as her mentor for some time. The Applicant's work was based at the Respondent's office in Scarborough but she was required to visit various locations. The general background is best set out by referring in terms to the decision of the Tribunal and, in particular, paragraphs 5, 6, 7 and 8:

"5. It is the Applicant's case that she began to suffer treatment on the part of Mr McMahon, the Respondent's Managing Director, which she perceived as sexual harassment, within one month of her commencing employment. The Applicant told us, and we accept, that she was so concerned about the treatment that she received that she began to record matters in a diary. We have seen both the original diary for 1996 and that for 1997 and we have considered the copy entries before us. Although we accept that the Applicant did keep a diary from July 1996 onwards, we do not accept that she made the various entries to which we were referred on as regular a basis as she contended. As is clear from our findings below, there are certain events recorded as occurring on particular days which we do not accept happened on those days. It seems to us, therefore, that the Applicant made certain entries, not necessarily on the day on which events occurred as she maintained, but perhaps within one or two weeks later. That delay explains why there are discrepancies as to various dates. We do not accept that where the Applicant has purported to quote exactly what was allegedly said by Mr McMahon, that such quotations are entirely accurate. We do not accept that they are verbatim quotations. In our view, whether the record was delayed by a matter of hours or days, it would be impossible for the Applicant to remember exactly what was said. There was a conflict of evidence as to the diary. Mr Witty's evidence was that he handed the diary to the Applicant after she had complained to Mr Russell and realised that Mr Russell was not going to assist her. We are quite clear, on the evidence, that the only complaint to Mr Russell was in August 1997. To that extent, Mr Witty's evidence did not assist us.

6. On the contrary, we find that the Applicant was given the first diary in July 1996 and that she used that 1996 diary exclusively for the purpose of recording matters of complaint against Mr McMahon. From the beginning of 1997, she made entries in her ordinary desk/work diary. It was, of course, impressed on us on behalf of the Applicant that the diary entries corroborate the Applicant's complaints. We accept the diary entries are some evidence that goes to corroborate some of the complaints. We do not entirely dismiss the diary entries nor do we entirely accept them without hesitation.

7. There was a certain amount of evidence as to whether Mr McMahon was present in Scarborough on 19 July 1996 and, in particular, during that morning, when the Applicant alleges that the first relevant incident occurred. We do not accept that Mr McMahon was present in Scarborough on that morning. It is clear to the Tribunal, from the documentary evidence that has been produced, that he and Mr Russell attended a meeting in Doncaster. The Applicant's refusal to accept that some error had been made as to the date did not assist her overall credibility. Similar comments apply in respect of the incident which allegedly occurred at an Open Evening at Westleigh Training Centre in Scarborough during, according to the Applicant, September 1996. The overwhelming weight of the evidence is that no such evening occurred in September 1996. The Applicant's refusal to accept that that was the case again had an adverse effect upon her credibility.

8. We have approached this case on the basis that we should seek to form some view as to whether individual witnesses were or were not credible witnesses. Having said that, we have made individual decisions on each of the individual heads of complaint. It did, however, seem to us that we would be assisted in determining the truth by forming views as to the credibility of the principals and we hope that these views will also assist the parties in understanding the basis upon which we have reached our factual conclusions. We deal firstly with Mr McMahon. We note that he freely admitted to certain conduct which , at least in the view of the members of this Tribunal, would be accepted by most sections of society of both socially and legally unacceptable. It would have been easy for Mr McMahon to deny that any such conduct took place or that any such comments were made. The very fact that he was willing to do so, whether on the basis that he believes such conduct to be entirely innocent or whether because he is a man of integrity, has persuaded us that, on the whole, his evidence should be believed. It is, however, right that we record that his interpretation of his actions and the interpretation that we have placed on them differ substantially. He sought to understate the importance and effect of certain of his actions. We have concluded that he was somewhat naïve in taking that view. It may be, of course, that the Mr McMahon is entirely genuine in his protestations of innocence but whether or not the complaints made by this Applicant are justified depends, in our view, not on whether they were intended by Mr McMahon to have any harmful effect but whether they were perceived by the Applicant as having that effect."

2. The decision went on to make various comments about witnesses and their credibility.
3. In paragraph 14 of the decision the Tribunal turn to analysing the particular instances.
4. Paragraph 14 states as follows:

"14. Against that background, we turn to the individual incidents upon which the Applicant relies. In his submission to us, Mr Lock properly drew our attention to the definition of sexual harassment which is contained in the European Commission Recommendation on the Protection of the Dignity of Women and Men at Work (91/131/EEC) namely

'sexual harassment means unwanted conduct of a sexual nature or other conduct based upon sex affecting the dignity of women and men at work. This can include unwelcome physical, verbal or non-verbal conduct'.

Mr Lock also properly conceded that there are no issues of law that need to be resolved by the Tribunal. He accepted that, if we concluded that the Applicant's allegations are well-founded, then the Respondent could not deny that they constitute unlawful sex discrimination. It seems to us, therefore, that we are required to make specific findings of fact as to whether each of the individual allegations is correct and that, if we find that the Applicant's version is correct, then the Applicant's complaint is well-founded as to that particular matter. We have approached our task on that basis. In so doing, we have looked at the specific allegations that are contained in the Originating Application. It was properly pointed out during the hearing that certain allegations in the Originating Application did not form part of the evidence given by the Applicant and that, conversely, certain evidence given on the hearing was not the subject of any complaint in the Originating Application. We take the view that it is our task to decide whether the allegations contained in the Originating Application are well-founded and we have dealt with each of those. If other allegations were made in evidence, we have not dealt with them in this decision. The Originating Application contains 17 separately numbered paragraphs said to be 'a list of comments made by Mr McMahon from 10 June 1996 to 17 August 1997'. We deal with each of them in turn."

5. The Tribunal then went on to set out in considerable detail the specific instances. It is true that the Tribunal did not set out the burden of proof as an overall direction but it is pertinent to note that in paragraph 14.9 the Tribunal say of that incident:

"14.9. … In our view, there is sufficient doubt as to exactly what occurred on that date that we are not able to find, on the balance of probabilities, that any such incident did occur. We reject that particular complaint."

6. In the context of this decision it is clear that the Tribunal had the burden of proof well in mind. In paragraph 8 the Tribunal stated that they should seek to form some view as to whether individual witnesses were or were not credible witnesses. They went on to say that, having said that, they were going to make individual decisions on each of the individual heads of complaint.
7. The grounds of appeal are unduly prolix but in effect the practical position is that the Appellants are claiming that this decision was perverse in that certain of the general comments made about witnesses and their credibility were in conflict with the detailed and specific findings made by the Tribunal in the subparagraphs in paragraph 14.
8. Its is often said that an Industrial Tribunal is an industrial jury. Certainly many of the findings of fact made by this Tribunal do reflect their concern to be fair to both sides. The Tribunal found in paragraph 8 that on the whole the evidence of the Respondent, Mr McMahon, should be believed. However, in the next sentence they immediately qualify that by saying that his interpretation of his actions and the interpretation that we have placed on them differ substantially. In dealing with the weight that should be given to the diaries that the Applicant kept of these incidents the Tribunal in the concluding sentence of paragraph 6 say this:

"We do not entirely dismiss the diary entries nor do we entirely accept them without hesitation."

In paragraph 9 the Tribunal state as follows:

"As is often the case, we were unable to accept the entirety of the Applicant's case or the entirety of the response to it by Mr McMahon. The evidence of Mrs Symons fell somewhere between the two extremes and seemed to us to represent as near to the truth as we were likely to achieve."

9. In the respective arguments before us, we have been taken through the Witness Statement of Patricia Symons and referred to the Chairman's Notes which were ordered at the Preliminary Hearing.
10. It is true that in her Witness Statement much of what Mrs Symons said did support the account of Mr McMahon in his denial. In other cases it supported the Applicant's case that certain comments were made thought not necessarily the exact ones alleged, for example, in paragraph 15 of her witness statement Mrs Symons says this:

"15. The incident referred to on the 19^th August I do recall. Sharon was standing by the 'in-out' board with her back to Mr McMahon, who had just come in. He stood behind her to mark himself 'In' on the board. Sharon bent down to pick her briefcase up. Mr McMahon jumped back, as she banged in to him, and he said something like 'Don't do that Lass, I'm stood right behind you'. He then said words to the effect 'if you felt anything, those were my keys'. It was said as a joke, no more. He certainly did not say 'Don't put your bottom up like that, by the way the hard thing in my pocket was my keys'."

11. We do not intend to subject to a detailed textual analysis the points made on behalf of the Appellants and the Respondent. This Tribunal clearly gave the most detailed consideration to the allegations made. That is manifest from the way in which they found certain of the allegations proved and dismissed others.
12. Where one is dealing with a sequence of events rather than a single specific incident, it may very well be that a tribunal of fact cannot conscientiously say that they prefer the evidence called on one side to the other. Such blanket findings as to the credibility of several witnesses or indeed of one witness may be totally inappropriate. This Employment Tribunal carefully considered each and every incident. General comments, wrenched from their particular context, may sit uneasily with some of the specific findings made in paragraph 14 about these each particular incident. We are satisfied that the Tribunal properly applied themselves to the evidence before them and we consider that the decision that they reached was one which was open to them and therefore we consider there are no grounds of appeal on the ground of perversity.
13. The other ground that arises is as to an alleged misdirection of law as to the meaning of sexual harassment. Mr Spencer, who appears for the Appellant, has rightly made the point that there is no formal statutory definition of sexual harassment in domestic legislation. He points to the EC recommendation number 91/131 EEC Article 1 that recommends that member states take action to promote awareness that conduct of a sexual nature, or otherwise based on sex affecting the dignity of women and men at work, including the conduct of superiors and colleagues, is unacceptable if (a) such conduct is unwanted, unreasonable and offensive to the recipient and/or (b) such conduct creates an intimidating, hostile or humiliating work environment for the recipient.
14. The Appellant's case is that the Tribunal did not adequately direct themselves as to the objective nature of harassment. In particular, the Tribunal point out two passages in the judgment. At paragraph 14 of the decision the Tribunal say this:

"It seems to us, therefore, that we are required to make specific findings of fact as to whether each of the individual allegations is correct and that, if we find the Applicant's version is correct, then the Applicant's complaint is well founded as to that particular matter."

At paragraph 8 the Tribunal said this:

"It may be, of course, that Mr McMahon is entirely genuine in his protestations of innocence but whether or not the complaints made by the Applicant are justified depends, in our view, not on whether they were intended by Mr McMahon to have any harmful effect but whether they were perceived by the Applicant as having that effect."

15. It is vital to see the context in which these alleged misdirections of law were made. We deal first with the passage in paragraph 14. The full body of that paragraph reads, in so far as it is relevant, is this:

"In his submission to us, Mr Lock properly drew our attention to the definition of sexual harassment which is contained in the European Commission Recommendation on the Protection of the Dignity of Women and Men at Work (91/131/EEC) namely:

'sexual harassment means unwanted conduct of a sexual nature or other conduct based upon sex affecting the dignity of women and men at work. This could include unwelcome physical verbal or non-verbal conduct'.

Mr Lock also properly conceded that there are no issues of law that need to be resolved by the Tribunal. He accepted that, if we concluded that the Applicant's allegations are well-founded, then the Respondent could not deny that they constitute unlawful sex discrimination. …"

16. Mr Lock was then appearing for the Respondent and is part of the same organisation, as we understand it, through whom Mr Spencer now appears, namely SPJ Employment and Safety Services, 4 Copthall House, Station Square, Coventry.
17. It is a submission of some audacity to criticise the Tribunal for a direction which does no more than mirror a concession made on behalf of the Respondent at the Tribunal; now the Appellant before us.
18. If one looks at the misdirection alleged in paragraph 8, to which reference already has been made, then again taking in context the impact of the words is very different. It is true that the last sentence of paragraph 8, which has already been set out on more than one occasion in this judgment, may be taken as suggesting that sexual harassment is proved if the person the victim of it believes it to be harassment.
19. However, the sentence has to be read in context. In the self same paragraph the Tribunal notes that Mr McMahon freely admitted to certain conduct which in the view of members of the Tribunal would be accepted by most sections of society as both socially and legally unacceptable.
20. Obviously it is trite law to say it is not sufficient for someone to find conduct unwelcome to establish sexual harassment but we do not consider that any part, if taken in context, of the Tribunal's decision, can be read as suggesting that that is what they thought the law was. It was the employer's Counsel, now the Appellant, Mr Lock who properly drew the attention of the Tribunal to the definition of sexual harassment and went on to conceded that there were no issues of law that need to be resolved by the Tribunal and went on to accept that if the Tribunal conclude the Applicant's allegations are well founded then the Respondent could not deny that they constituted unlawful sex discrimination.
21. Concessions such as that are properly made in courts and tribunals throughout the land and the administration of justice would grind to a halt if such help was not given to courts and tribunals. An Employment Tribunal decision is not an academic dissertation. We can find nothing wrong at all in the way in which this Tribunal approached it, having regard to the concession made by the Respondents at the hearing. In our view it was a concession properly made on the facts of the particular case.
22. The Tribunal in the light of that concession did not cite such cases as Bracebridge Engineering Ltd v Darby [1990] IRLR 3, nor Insitu Cleaning Co Ltd v Heads [1995] IRLR 4 EAT.
23. Mr Spencer points out that in Grimaldi v Fonds Des Maladies Professionnelles [1990] IRLR 400 the European Court said that national courts are bound to take recommendations into consideration in order to decide disputes submitted to them. It is pertinent to point out that in Reed & Bull Information Systems Ltd v Stedman [1999] IRLR 299, Morison J pointed out that there was no statutory definition of sexual harassment and it is colloquial expression which describes one form of discrimination in the work place made unlawful by section 6 of the Sex Discrimination Act 1975. As Morison J pointed out, it is for each individual to determine what they find unwelcome or offensive and there may be cases where there is a gap between what a tribunal regard as acceptable and what the individual in question was prepared to tolerate. The resolution of this lies to the good sense of the tribunal.
24. In conclusion, it is possible to isolate certain parts of this decision and to suggest that they are inconsistent with each other but in our view that is to misunderstand the task upon which this Tribunal was engaged, dealing as it did with a number of separate incidents. Further, it might have been helpful if the Tribunal had set out their legal directions in a discrete and comprehensive form but we have to say that, in view of the concession made by the employers, we think it would have been somewhat academic for it to do so. As Lord Hoffmann has indicated in his speech in the House of Lords, in Piglowska v Piglowski House of Lords [1999] 3 All E 632 at 643, appellate courts must bear in mind the advantage which the tribunal at first instance had of seeing the parties and the other witnesses. In our view this is a case where the appeal should be dismissed for the reasons we have given.