United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR D READE (of Counsel) Instructed by: London Borough of Camden Town Hall Judd Street London WC1H 9LP
For the Respondent	MS I OMAMBALA (of Counsel) Instructed by: Messrs Thompsons Solicitors Congress House Great Russell Street London WC1H 3LW


 


JUDGE PETER CLARK: Complaints of sex or racial discrimination in employment often present particular difficulty to Employment Tribunals. Our experience, increasingly, is that hearings become protracted, often with significant gaps in time between hearing days; evidence is unfocused, requiring the Employment Tribunal to extract the relevant facts from frequently conflicting accounts from a number of different witnesses; conclusions will, in many cases, be based on inferences drawn from the primary findings of fact; those conclusions in turn will depend upon a careful application of the statutory provisions as interpreted by the higher courts. It is, in these circumstances, essential that the tribunal's extended reasons comply with the minimum standards laid down by the Court of Appeal in Meek v City of Birmingham District Council [1987] IRLR 250, and with particular reference to discrimination cases, in Chapman v Simon [1994] IRLR 124 and Martins v Marks & Spencer PLC [1998] ICR 1005.

This case is no exception to the generality; indeed it may be taken as a paradigm example.

1. Miss Pullen, the applicant, was employed by the London Borough of Camden (Camden) as a parking attendant, commencing that employment on 4th November 1991. In December 1993 Mr Alan Bryant took employment with Camden. He became the applicant's line manager. His previous employment history included 25 years in the army, seven as a Warrant Officer, followed by eight years in the City of London Police.
2. In June 1995 the applicant raised an internal complaint about Mr Bryant's behaviour towards her. That grievance was investigated by Paula McDonald, Assistant Director (Quality and Resources) in the Environment Department, with the assistance of Tony Spaul, a Senior Personnel Officer. She interviewed 12 witnesses, including the applicant and Mr Bryant. Finally she produced a written report dated 22nd May 1996. Before that report was completed the applicant commenced these proceedings by a complaint presented to the Employment Tribunal on 12th February 1996. In her details of complaint she said this:

"Ms Pullen has been subjected to a continual and systematic campaign of sexual harassment from her manager for over two years from early 1994. Ms Pullen's manager has engaged in extremely unpleasant, aggressive and hostile behaviour towards her.

For nine months Ms Pullen performed the higher-graded job of acting supervisor. Interviews were held for permanent appointment to supervisor position in March 1995. Ms Pullen's manager interviewed her and acted in a sexually discriminating manner by denying her appointment to the permanent position of supervisor, thereby causing her financial loss.

A complaint was made to Camden Council regarding the above matter on Ms Pullen's behalf by her union in March 1995. Camden Council has failed to investigate and pursue the matter diligently in accordance with their own disciplinary procedure.

Emboldened by Camden Council's neglect, Ms Pullen's manager has continued his campaign of sexual discrimination against her to date."

3. That complaint was first heard in part by an Employment Tribunal sitting at London (North) under the chairmanship of Mr G Flint on 1st-4th April 1997. There was then a considerable delay, through nobody's fault, before the tribunal reconvened to complete the hearing on 24th-26th August 1998. Thus the hearing occupied seven working days. The decision was reserved and finally promulgated with extended reasons on 9th December 1998. The applicant's complaint was upheld.

The Employment Tribunal Decision

4. The applicant's case was largely based on her allegations investigated by Paula McDonald.
5. The McDonald report refers to 10 allegations under the following headings:

(1) Physical Assault 1

(2) Aggressive Behaviour 1

(3) Physical Assault 2

(4) Aggressive Behaviour 2

(5) Aggressive Behaviour 3

(6) Harassment at Home

(7) Unwarranted Reprimand and Standard Setting

(8) Influencing Interview Outcome – a reference to a promotion interview attended by the applicant in March 1995

(9) Sexual harassment

(10) Sexism

Mr Reade, who did not appear below, has put before us the written closing submissions of Counsel, Mr Short, who appeared on behalf of Camden before the Employment Tribunal. We have counted some 23 allegations on which Counsel commented in closing, although there was some overlap.

6. Ms Omambala, who appeared for the applicant below, has broken down the applicant's complaints under the following headings:

(1) Campaign of sexual harassment by Mr Bryant

(2) Mr Bryant's aggressive behaviour

(3) The March 1995 promotion interview

(4) Camden's failure to properly investigate the applicant's internal complaint

(5) Continuing acts of discrimination.

7. We repeat, the hearing lasted over seven days, including a gap in time of some 16 months; the applicant was the only witness on her side; Camden called seven-eight witnesses; the bundles of documents ran to several hundred pages.
8. In these circumstances, the tribunal observed at paragraph 1 of their reasons:

"The Tribunal has however in considering this matter gone very carefully through the whole of the evidence which was heard before arriving at the conclusion which it has arrived.[sic]"

9. The first question, it seems to us, is whether that careful consideration is reflected in the reasons which follow.
10. The format of the tribunal's reasons takes the following shape. First, a broad summary of the parties' rival contentions (paragraphs 2-3). What is abundantly clear from the summary is that this was a case bristling with detailed factual issues. Issues which required careful analysis and resolution by the tribunal.
11. Next, the tribunal identified a limitation argument raised by Camden (paragraph 4) and indicated that they would deal with the question of limitation after hearing all the evidence.
12. Paragraph 5 begins:

"Having regard to this it is necessary to give a fairly comprehensive summary of the evidence which the Tribunal heard."

13. Paragraphs 5-8 contain a summary of the applicant's evidence, taken, it would seem, from the Chairman's notebook without comment. Paragraph 9 summarises Mr Bryant's evidence. In paragraph 10 the evidence of the further witnesses called by Camden is then dealt with quite shortly.
14. Paragraph 11 begins:

"This is a summary of the evidence which we heard …"

Pausing there, we have been taken by Mr Reade to the judgment of Mummery LJ in Martins (page 1011E-F) where he said this:

"It should, however, be emphasised that in all cases, short or long drown out, the function of the tribunal is clear. The duty of the tribunal, having heard the evidence and argument, is to give reasons for its decision, so that the party who has lost knows why he has lost. In practical terms, that means that it should state its findings of primary fact and any inferences it draws from those facts as clearly and concisely as possible and it should then apply the relevant statutory provisions, as interpreted by the courts, to those facts in order to arrive at a conclusion. It is not normally necessary to set out in the decision or to discuss in detail the evidence given to the tribunal. The extended reasons in this case are too elaborate both in the detailed recitation and in the discursive treatment of the evidence. The unfortunate result is that, on key issues, clear findings of fact have not been stated and there are self-contradictory conclusions."

15. It follows, in our judgment, that a mere recitation of the evidence given by the various witnesses is unnecessary. What is first required is a statement of the legal issues, in the present case:

(1) whether the claim was, in whole or in part time-barred, including the question of a continuing act of discrimination (Sex Discrimination Act 1975 s.76(6)(b)) and, if necessary, the application of the tribunal's power to extend time under s.76(5).

(2) Insofar as the claim is within time, whether the applicant has been treated less favourably than the respondent would treat a man on the grounds of her sex. SDA s.1(1)(a).

Then, a statement of the factual issues relevant to the determination of those legal issues.

16. Next, clear findings of fact in a coherent, logical sequence.
17. Finally, the application of the law to the facts, drawing such inferences as the tribunal deems appropriate, so as to explain the conclusions which the tribunal has reached.
18. We interposed those observations on reaching the first sentence of paragraph 11 of the tribunal's reasons. Thus far, the Chairman has recited in summary form the evidence which the tribunal heard. That was not necessary, pace Mummery LJ, what is needed are the tribunal's findings of fact.
19. Those findings, submits Ms Omambala, are contained in paragraph 11. We should set it out in full:

"11 This is a summary of the evidence which we heard and we propose first to consider the question of whether the Applicant established a case of sexual discrimination which rests in this matter primarily upon the actions and conduct of Mr Bryant towards her, both generally in relation to his managing of the department, and particularly his actions towards her. We also have to consider whether it can be said that any attitude of his so influenced the selection panel that it could be said that that was the reason why the selection panel refused to consider the Applicant for the post of supervisor thus possibly making this refusal sex discrimination because of the attitude of Mr Bryant. Mr Bryant's evidence we found to be unsatisfactory. He was cross-examined at length by Ms Omambala and his attitude in cross-examination indicated to us that most of his evidence must be regarded with some reservation. We would not be prepared to accept that he did engage in overtly sexual conduct towards the Applicant, in that it can be said that his touching of her or pointing towards her breasts could be said to have been sexual in the sense that it was an approach to the Applicant dictated by sexual motives. We think it was more an unfortunate way of acting towards colleagues and subordinates but that it was not overtly sexual nor did it have sexual motives. The general impression which we formed of Mr Bryant was that he was forceful manager prepared if he did not get his way to express himself in a forceful manner towards the staff under his control. We also had the impression that he found it difficult to manage women possibly because his experience in the Army was mainly towards the management of men. He found it difficult we find to accept women in supervisory positions and tended to react adversely towards them and to deal with them in a way which he would not adopt towards men. In particular we find that he did towards women and particularly towards the Applicant, adopt a bullying and forceful manner. While this may, in part, have been due to real or perceived deficiencies in the way in which the Applicant carried out her duties our overall view is that the attitude of Mr Bryant was unacceptable towards women and that he did not behave in this fashion towards men either because he had greater experience of managing men and therefore could handle them better or because men were more likely to stand up to him than women were. In our view sexual harassment does not have to have an overtly sexual content to be present. It does in our view consist of any unacceptable conduct by a male manager directed against a person simply because she is a woman and can amount simply to harassing her in the way in which she carried out her duties or generally behaving in a way which is unacceptable. The same might of course happen by reason of the attitude of a woman manager towards male subordinates. If it can be found that the manager's attitude towards men is different than in comparing the treatment given out to the two sexes it can be said that a woman is treated less favourably than a man would be treated. This is our finding is what happened here. There was here an unacceptable managerial attitude by Mr Bryant towards women in general and the Applicant in particular which led to them being treated differently from the way in which men in similar positions were treated by him. this is our view amounts to sexual harassment although we wish to emphasise that we are not making findings or accusing Mr Bryant of overtly sexual conduct but simply that as a manager he did not treat women in the same way as he treated men and in fact treated them in a much more aggressive way. This in our view does amount to sex discrimination. The Respondents, of course, deny that the Applicant has suffered a detriment but our view is that if a woman is treated in this way by a male manager then even if no financial loss has been suffered and we make no finding as to whether this is or is not the case here as we have heard no evidence on the question of financial loss she suffers a detriment in that the way in which she is treated causes her distress and embarrassment and that this is sufficient to amount to a detriment. As to the question of the selection panel we do not think that Mr Bryant unduly influenced this against the selection of the Applicant. We do have the evidence of the other persons who comprised the panel and we find that the Applicant did not satisfy the panel as a whole as to her competence to be a supervisor. We also do not think that Mr Bryant influenced the panel by making remarks about the Applicant having been about to receive a standard set letter."

20. It is also right that we set out the next paragraph:

"12 As to the question of the attitudes of the other witnesses and the attitude of the Respondents generally we feel that there was an attempt here to try to sweep matters under the carpet. Our view is that the investigation by Paula MacDonald was not satisfactory and that the Respondents were unwilling or unable to grasp the nettle and deal with the matter properly."

21. Finally, the question of limitation is dealt with at paragraph 13 thus:

"13 There remains the question of time. It is true of course that the responsibility for managing the Applicant passed out of Mr Bryant's hands in August 1995 well before the period of three months beginning on 13 November 1995. We feel however that there was here been continuing discrimination in that while Mr Bryant may have ceased to be Applicant's line manager he was still a considerable presence and force in the department and able to exert a considerable influence over what was going on. We have come to the conclusion that there were here continuing acts of discrimination in that the attitude of Mr Bryant throughout had been one of fixing on the Applicant because she was a woman. Consequently we find that there have been continuing acts of discrimination the last of which was in time and that the Applicant establishes a case of sex discrimination. If we are wrong in this and the finding should be that the last act complained of was in August 1995 then in view of the Applicant's illness in the succeeding months we feel that this is a case where we should hold that it is just and equitable for the case to proceed. The question of what compensation the Applicant should be awarded was not gone into at the hearing. The parties have liberty to apply for a hearing on compensation if they cannot agree this amongst themselves."

The Appeal

22. Mr Reade, with some diplomacy, submits that the tribunal's reasons simply do not pass muster by any standard.
23. There is no attempt, in the reasons, to analyse the evidential conflicts in any detail so that clear findings of fact emerge. In general terms, the tribunal rejected the applicant's case that Mr Bryant engaged in overtly sexual conduct towards her, although it is not clear to us whether the tribunal accepted the applicant's evidence as to certain incidents having taken place or not. On the other hand they found that Mr Bryant did adopt a bullying and forthright manner towards the applicant. Again, it is not clear to us which allegations of bullying were found to be proved. There is no explanation by the tribunal as to why they found that Mr Bryant did not or would not behave in a similar manner towards men. The tribunal rejected the applicant's case that Mr Bryant had influenced the interview panel against the applicant in March 1995.
24. The lack of proper fact-finding fed through into the question of limitation. It is not clear, submits Mr Reade, what were the continuing acts of discrimination that led the tribunal to conclude that the claim was brought in time. As to the alternative finding that if the last act complained of (not identified) was in August 1995, then it was just and equitable to extend time in view of the applicant's illness in the succeeding months, where is the finding that the applicant was ill between August 1995 and 12th February 1996? In paragraph 8 the tribunal refer to the applicant as being sick for a period and returning to work in October. Then it is said that she was suspended until 31st October 1995. Then she returned to work until 29th January 1997 when she had gone sick. That is taken from the applicant's evidence; there are no findings of fact as to sick absences which apparently led to the tribunal's conclusion that it would be just and equitable to extend time.
25. There is a further difficulty. The question of remedy was adjourned to allow the parties to attempt to reach a settlement. Looking at the tribunal's reasons, how were the parties to assess the value of the claim.? Indeed, what was the basis on which the parties were to approach the issue of compensation if no settlement could be reached and a remedies hearing became necessary?
26. Ms Omambala, to whom we are indebted for the scrupulously fair way in which she put her submissions, having the advantage of having appeared below, accepted that the tribunal's reasons were not ideally drafted but nevertheless contended that it was possible to discern the relevant findings of fact by the tribunal, their proper application of the law and their conclusions such that the parties know why they have one or lost. The Meek standard has been met.
27. She refers particularly to the conclusions expressed by Ms McDonald in her report, relied on below by the applicant, which support the finding in paragraph 11 that Mr Bryant adopted towards women and particularly the applicant a bullying and forceful manner, whereas he did not behave in that manner towards men. That is, she submits, an unassailable finding of less favourable treatment on grounds of the applicant's sex.
28. As to the question of limitation, she points to the finding in paragraph 12 that the respondent failed to deal with the applicant's internal complaint as supporting the tribunal's conclusion that there were here continuing acts of discrimination. She accepts that the tribunal have not produced clear chronological findings as to the applicant's sick absences, but, if it were necessary for the tribunal to exercise their discretion under s.75(6), that is a wide discretion with which we should not readily interfere.

Our conclusion

29. We should like to be able to uphold Ms Omambala's submissions, not least because the parties have already been through a seven-day hearing at considerable expense. Unfortunately, we are unable to do so.
30. Quite simply, try as we may, we are unable to discern from the tribunal's reasons what findings of fact they have made which have led them to reach the conclusions which they express both on the question of limitation and on the substantive merits of the claim.
31. In these circumstances we are driven to conclude that this appeal must be allowed.

Disposal

32. Ms Omambala invites us to remit the case to the same tribunal for them to state their reasons properly. That is not, in our view, a satisfactory way of dealing with this appeal. We accept Mr Reade's submission that the only realistic course is for the matter to be retried before a fresh Employment Tribunal.
33. Finally, we are told that subsequent to the present tribunal complaint the applicant's employment terminated in May 1998. She has brought a second complaint alleging unfair dismissal, breach of contract, sex discrimination and victimisation. That complaint is presently stayed pending the outcome of this appeal.
34. Both parties agree that if this matter is to be remitted to a fresh tribunal, then the two complaints should be consolidated and we so direct. A copy of this judgment should be sent to the Regional Chairman, Mrs Mason, so that steps may be taken as soon as in practicable for the consolidated applications to be heard, and in particular, to consider whether a directions hearing is necessary.