United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR P EDWARDS (of Counsel) Instructed By: Mr R J Ivory Borough Secretary & Solicitor Surrey Heath Borough Council Surrey Heath House Knoll Road Camberley Surrey GU15 3HD
For the Respondent	MR I OMAMBALA (of Counsel) Instructed By: Mr J Clinch Legal Officer UNISON 1 Mabledon Place London WC1H 9AJ


 


MR JUSTICE HOLLAND:

Introduction

1. From June 1994 Mrs. Crooks was employed by Surrey Heath Borough Council as a benefit fraud investigator. In 1996 she and her line manager, Mr. Gilliver, exchanged allegations and counter-allegations of sexual harassment. After an internal inquiry her allegations were upheld and Mr. Gilliver was dismissed for gross misconduct. Thereafter he pursued a complaint of unfair dismissal which eventually came before an Industrial Tribunal in the autumn of 1997. The essence of his complaint was that his contention of sexual harassment by Mrs. Crooks was well founded and that in particular she had displayed herself to him when not wearing underclothes - inevitably a hearing of his complaint put this allegation in the public domain. In the event that happened on the 27^th November 1997 at a relatively early stage in the hearing. The Council, as Respondents to Mr. Gilliver's complaint, had made a decision not to call Mrs. Crooks as a witness; further than that, they failed to inform her that the hearing was taking place, and more particularly there was a failure to forewarn her that there would be a public recital of Mr. Gilliver's allegations. In the result Mrs. Crooks (then off work through ill health) first learned about the matter when she was visited by journalists demanding an interview. No restriction had been sought from or placed by the Tribunal so as to conceal her identity as the alleged victim of sexual misconduct and on the 28^th November her name and Mrs. Gilliver's allegations were the subject of prurient articles in the tabloid press, adding to her embarrassment and distress.

The Complaint

2. By way of an IT1 of the 24^th February 1998 Mrs. Crooks initiated a complaint against the Council alleging, inter alia, sexual discrimination as reflected by the foregoing conduct. That complaint was heard by an Employment Tribunal held at London (South) in September 1998. By way of a Decision sent to the parties together with Extended Reasons on the 10^th December 1998, the Tribunal upheld the complaint and ordered payment of £3,240 by way of compensation. The Council appeals, contending that the Tribunal misdirected itself as to law.

The Decision

3. The Tribunal recited and found facts and then focussed on the law, an exercise involving recital of certain sections of the Sex Discrimination Act 1975 and examination of a number of authorities. Coming to its conclusions, the Tribunal find (in paragraph 36) " ..... that if she had been warned, she could have taken steps to protect herself, perhaps by removing herself to a different place." Paragraphs 38 and 39 merit full recital:

"38. The allegations made by Mr. Gilliver in the course of his Tribunal hearing about Mrs. Crooks, relating to her conduct of a sexual nature, such as not wearing underwear, and exposing herself to him, were brought to her doorstep by the journalist. That was a foreseeable act. It subjected her to a detriment on the grounds of her sex. It was within the control of the Respondents to avoid Mrs. Crooks, their employee, being subjected to that detriment, by applying for a Restricted Reporting Order or by warning Mrs. Crooks of the events which were taking place.

39. In arriving at this conclusion, we recognise that we are applying the law of discrimination on the grounds of sex in a way and to an extent which, so far as we are aware, is further than any previous application, but we consider it a proper conclusion, proceeding on the basis of the principles of law which we have set out, applied to the facts as we have found them, and adopting a purposive construction of the discrimination legislation, following the guidance set out by Lord Justice Waite in Jones v Tower Boot Co Ltd (1997) IRLR 168 at 171."

4. The Tribunal conclude their Extended Reasons by making findings as to a Remedy. Before departing from the approach of the Tribunal it is worth commenting that the Tribunal was plainly very sympathetic to Mrs. Crooks having regard to the events of the 27^th November 1997 - understandably so.

The Submissions

5. The essential submission made by Mr. Edwards on behalf of the Appellant Council is that the Tribunal failed to give any adequate attention to the relevant provisions of the Sex Discrimination Act 1975. Thus:

"Section 1(1). A person discriminates against a woman in any circumstances relevant for the purpose of any provision of this Act if -

(a) on the ground of her sex he treats her less favourably then he would treat a man .....

Section 5(3). A comparison of the cases of persons of different sex .... under Section 1(1) ..... must be such that the relevant circumstances in the one case are the same or not materially different in the other.

Section 6(2). 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 ..... subjecting her to any other detriment."

6. Focussing on Sections 1(1) and 5(3), he submits that there was a failure by the Tribunal to consider the initial issue, namely as to whether that which was complained of involved treatment of Mrs. Crooks that was less favourable than that which the Council would have meted out to a male employee. Suppose, said Mr. Edwards, it was Mrs. Crooks who had been the complainant in the Employment Tribunal proceedings and Mr. Gilliver was the uncalled witness: there is not the necessary reciprocal finding, namely that he as a man would have had the benefit of the forewarning. Had the Tribunal considered this point, there was no material upon which it could have made a finding of less favourable treatment. There was no reason on the evidence to find that the Council would in such circumstances have been more solicitous for Mr. Gilliver than for Mrs Crooks.
7. He places reliance on the succinct guidance emanating from Ward L.J. in Smith v Gardner Merchant Ltd (1998) 1 RLR 510 at 516:

"It is upon that further reflection that I have come to the conclusion that the task imposed on the Tribunal by Section 1(1)(a) read with 5(3) is to ascertain

(a) what, as a matter of fact was the treatment received by the employee;

(b) was he treated less favourably than the woman with whom he falls to be compared; and

(c) would he have been so treated but for his sex?"

8. In reply, Miss. Omambala points out that the Tribunal expressly cited Section 1(1) and urges that it cannot have failed to heed its terms even though the Reasons are not very explicit on the point. There is the danger, she reminded us, of being overly legalistic in construing the Reasons.

Conclusion

9. With some reluctance (we too have sympathy for Mrs. Crooks) we conclude that the primary submission of Mr. Edwards is well-founded. Search as we may, we can find no consideration of questions (b) and (c) as posed by Ward L.J. in the Reasons - and it may be not without significance that the Tribunal did not remind itself of Section 5(3). The essential focus of the Reasons is as to "detriment" and the finding as to such is seemingly that which is referred to in paragraphs 38 and 39 as cited above. We are bound to categorise that failure to consider questions (b) and (c) as constituting an error in law and one that undermines the decision. On the basis of such we must allow this appeal by the Council.
10. That begs the question as to further disposal. If we could identify material that would invite adjudication pursuant to Section 1(1) and 5(3) we would have ordered a rehearing. However, in the event we are bound to note that no case as to discrimination, let alone such on grounds of sex, appears from the IT1 nor from the submissions made on behalf of Mrs. Crooks as recorded by the Tribunal in paragraphs 20 and 21 of their Reasons. For our part, we can discern nothing to suggest a case on discrimination such as might invite evidence and specific submissions. In such circumstances we perceive no merit in a rehearing and we dismiss the complaint.
11. Before departing from the matter, we make two further observations. First, Mr. Edwards was minded to challenge the consciously bold findings of the Tribunal as to "detriment". We cut the argument short: if the focus is confined to the failure to warn there is no weakening of the case for Mrs. Crooks and nothing found against the Council that is in any way forensically startling. Second, now that the Council has been relieved of the stigma of a finding, it might like to reflect, first, on the way Mrs. Crooks was treated and, second, on an arguable implication of the successful Sections 1(1) and 5(3) defence: 'in behaving insensitively we were not discriminating against you - Mr. Gilliver would not necessarily have received better treatment'. Is there room now for ex gratia recompense for Mrs. Crooks?