United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR M CONDRON (Representative) Peninsula Business Services Stamford House 361-365 Chapel Street Manchester M3 5JY


 


JUDGE WILSON: This has been the preliminary hearing of the proposed appeal by the original respondent company against the decision of the Employment Tribunal sitting in Birmingham, that the applicant had been unlawfully discriminated against on the grounds of her sex and should receive compensation.

1. A written Notice of Appeal and skeleton argument were before the tribunal which were not the product of Mr Condron's efforts who has appeared on behalf of the proposed appellant today. He makes an additional substantive point to which we will come in due course and invites us to deal with it in its own light and also in the light of the contents of the Notice of Appeal and skeleton argument.
2. The original applicant complained of sex discrimination because of the behaviour of her supervisor after she had rejected his advances to her to kiss her. The respondent company denied sex discrimination, although it admitted that the supervisor, Mr O'Hagan, had been dismissed for unacceptable behaviour towards the applicant and other people. They said that the applicant was dismissed on grounds of suitability. The applicant's length of service did not qualify her to bring an application on the grounds of unfair dismissal.
3. The grounds of appeal and skeleton argument as drafted can be summarily dealt with. We find nothing of merit in either.
4. Turning to Mr Condron's point, he directs our attention to paragraph 14 of the extended reasons. As we understand him, he accepts that the legal process which the tribunal set out for itself is not faultworthy. When we consider the way in which paragraph 14 is set out, he submits that the tribunal fell into error of law.
5. That was the paragraph in which the tribunal asked itself whether the respondent was vicariously liable within the meaning of section 41(1) of the Sex Discrimination Act 1975 and whether the respondent had made out a defence under section 41(3). The tribunal said that they were satisfied that the employers had taken such steps as were reasonably practicable to prevent the employee from doing the act complained of. The tribunal explained why and conclude by saying:

"… we are satisfied that they took all reasonable steps to prevent Mr O'Hagan from harassing the Applicant."

The tribunal therefore found the defence established which is provided in section 41(3) of the Act.

6. The matter did not end there however, because the tribunal went on in paragraph 15 to say:

"We are though satisfied on the facts that we have had presented to us that after dealing with Mr O'Hagan the Respondent company were placed under pressure by British Telecom to terminate the Applicant's employment and the reason the Applicant's employment was terminated related directly to the allegations that she had made against Mr O'Hagan of sexual harassment. With regard to this therefore, we are satisfied that there has been discrimination within the meaning of S.1(1)(a) of the Sex Discrimination Act 1975 and that this discrimination was unlawful under S.6(2)(b) in that they dismissed her. In this respect the Respondents cannot claim a defence under S.41."

7. Mr Condron's argument is that that is an error of law because there is a gap in the findings of the tribunal and that they should have asked themselves if the roles had been reversed and it had been a woman who had sexually harassed a man who had complained, whether the man would have been any differently treated than the applicant was here. If the client had brought pressure about the man, would he have been any differently treated. Mr Condon submits that that is the proper question which should have been asked and one which demonstrates an error of law which deserves full argument.
8. It is a superficially attractive submission. But we have had regard to the context of the rest of the extended reasons and in particular to paragraphs 4 and 8 of those reasons. Paragraph 4 sets out that:

"The Applicant had commenced her employment on the 26th February 1999. She had been described as hard working and indeed the Tribunal noted than only four weeks before she was dismissed there had been a e-mail sent on behalf of BT expressing their satisfaction at the outstanding services provided by the Applicant and other members of the cleaning team."

Paragraph 4 then goes on to deal with the way things went sour, so far as the relationship between her supervisor, Mr O'Hagan and herself were concerned, and in particular the change of attitude by the supervisor towards her which followed the rejection of his advances. The tribunal say that they are satisfied that this change in behaviour was a direct result of the rejection by the applicant of Mr O'Hagan's advances.

9. Paragraph 8 deals with what happened on 19th July 1999, it reads:

"On 19th July the Applicant commenced work early at 7am to do an urgent job dismantling a cupboard in the canteen. What she did not know whilst she was starting work early on this occasion was that Miss Oliver [who was employed by the respondent company] had been called into a meeting with Margaret Johnson employed by BT who was their Building Facilities Manager at the site. Apparently Steven O'Hagan had been very well liked and respected by BT management and they were unhappy that he had been dismissed. We are satisfied that BT had been made aware that Miss Oliver had been one of the main complainants against Mr O'Hagan. Mrs Johnson made various complaints about the attitude of the Applicant and asked Miss Oliver what she was going to do about it."

At paragraph 9 the tribunal continues:

"Miss Oliver adjourned to have a meeting with another Area Manager, Alan White and they decided that they had no alternative but to dismiss the Applicant. Whilst Miss Oliver claimed she was not instructed by BT to dismiss the Applicant the manner in which she was dismissed and the circumstances surrounding it can only lead us to the conclusion that effectively Miss Oliver was told that she had to get rid of the Applicant."

and so she did.

10. It seems to us that, taking the totality of the extended reasons, what it comes to is this: Mr O'Hagan was dismissed for sexually inappropriate behaviour towards the applicant, amongst other things; because he was dismissed pressure was brought on the employers to get rid of the applicant. If Mr O'Hagan had not behaved inappropriately there would have been no pressure to get rid of the applicant. We have had in mind what another division of this Appeal Tribunal said concerning the discrimination legislation in the case of Abbey Life v Tansell. That was a case concerning disability discrimination and the Employment Appeal Tribunal in the course of its judgment set out the proposition that the intention of the legislature behind discrimination legislation was that it should be purposively construed. We note that that was an approach which was expressly approved by Mummery LJ in upholding the judgment of the Employment Appeal Tribunal in the Court of Appeal [2000] IRLR 337.
11. Applying that purposive approach to the issue before us, we consider that for this matter to go to full argument would not alter the fact that there is a clear and direct link between the sexual harassment by Mr O'Hagan and the dismissal of the applicant which is not covered by any facts which would support a defence under section 41(3) of the Act. Accordingly, this appeal must be dismissed at this stage.