United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR P O'BRIEN (of Counsel) 1 Stonecross St Albans Herts AL1 4AA
For the 1st Respondent For the 2nd Respondent	1) MR W BIRTLES (of Counsel) Instructed by: Messrs Travell Horner & Partners 56 London Road Southend-on -Sea Essex SS1 1QQ 2) MR G M JONES (of counsel) Instructed by LEE DAVIES LTD Aylmer House The High Harlow Essex CM20 1DL


 


MR JUSTICE LINDSAY (PRESIDENT)

1. We have before us, by way of a full hearing of the appeal, the appeal of Mr B D Jones in the matter Jones –v- ICS Cleaning Services Ltd, as first Respondent and Mr K Trigg, second Respondent. Mr Jones lost his claims for sex discrimination and for unfair dismissal and he appeals.
2. First, it is necessary to say something of the background of the matter. ICS Cleaning Services, provides cleaning and catering services to airlines in the United Kingdom and in the islands, including Ireland, around the United Kingdom. It employed some 650 – 950 people.
3. At Stanstead, where Mr Jones worked at the relevant time, the company employed some 60 people, mostly men but there were some women. He began working for them in April 1992 and in time was promoted to be the Quality Control Manager. His station manager at Stanstead was the second Respondent, Mr Trigg. A fellow worker there was a Mr Figg, who happen to hate homosexuals.
4. The Tribunal recorded under the heading "Procedural Matters," that the Applicant's evidence and the cross examination of the first Respondent's witnesses and that of the second Respondent was conducted on the basis that the Respondents believed the Applicant to be a homosexual, not that he was homosexual. After the whole of the evidence had been heard, when both the Respondents' cases were closed, the Applicant's representative sought leave to recall the Applicant to admit his sexual orientation (in context, that he was homosexual) or alternatively sought to make an admission of it. For the reasons that the Tribunal gave, that was declined.
5. Mr Figg has not featured very greatly in the argument before us today but he made unpleasant, aggressive and rude remarks to most people and a number of them were directed to Mr Jones because of his perceived sexual orientation. Mr Figgs' remarks were made in some cases, or perhaps all cases, in the presence of Mr Trigg, the Second Respondent, but Mr Trigg managed to add his own contribution. At 6.11, the Tribunal says: -

"The Applicant's evidence was that Mr Figg's comments were made in the presence of Mr Trigg and that the latter made comments to him also, saying things like he was going to "f…" the Applicant and would give him "a good shagging." Mr Trigg did not deny making these remarks but he regarded them as a joke. Mr Jones alleged that from about 1995, Mr Trigg, on more than one occasion feigned to have anal intercourse with him; spanked him with a two foot ruler; feigned to French kiss him; removed the Applicant's trousers; asked the Applicant to give him "a blow job;" fondled the Applicant and grabbed his genitals. Mr Trigg before us, did not deny these actions but told us that he could not recall all of them. He did admit many during the course of his disciplinary hearing on 27 October 1997 (pages 75 – 79)."

That is a disciplinary proceeding that led to the dismissal of Mr Trigg.

6. The workplace was, in this particular instance, very crude and very coarse or, at any rate, as it seems, the male restroom was, as we would hope untypical, but the Tribunal says of it at 6.12: -

"The overwhelming evidence before us is that hardly a day went by in this workplace without what has been described before us as horseplay. This included men grabbing each others genitals as a form of greeting; staff being held down, tickled and trousers removed; arm wrestling; mock fighting; writing an "M" on peoples' foreheads as an indication that they had been "managed"; spankings with the two foot ruler as a form of punishment "meant in fun" as well as various kinds of banter. It is difficult to comprehend such behaviour and even more difficult to understand some of its being described only as "horseplay"."

7. Mr Jones objected, in the course of his Tribunal proceedings, only to personal comments and to physical contact. There was an issue as to who had initiated the behaviour of the character that was being complained of. For example, one witness said that Mr Jones had tried to pull down his, the witness's, trousers and had made overtly sexual remarks to that witness. The Tribunal said in their 6.13

"The Applicant told us that he did not object to the mock fighting, the tickling, the spanking and the light hearted banter. He too considered this to be horseplay. He told us that people believed him to be homosexual and that many of the remarks made to him were gibes about his perceived homosexuality. He denied initiating any of the horseplay or banter. His objections were to the personal comments and the physical contact. We are faced with a conflict of evidence. Mr Cutmore and Mr Foster gave evidence (as did Ms Glover by way of a written statement) that the Applicant initiated much of what went on. Mr Cutmore described comments made to him by Mr Jones and described how Mr Jones had prodded him in the buttocks with an aerial antenna and mop. He also told us that the Applicant had held him down to try to pull off his trousers and made overtly sexual remarks to him. Mr Foster told us that most of the incidents were started by the Applicant. Ms Glover in her witness statement described Mr Figg as hating homosexuals and that the Applicant deliberately provoked or invited comments from him. Mr Smith described the Applicant as portraying himself as homosexual. Ms Sanderson, during the course of her investigations, was told that the Applicant was "the main instigator" (page 10 of the documents appended to her statement). On balance we find that the Applicant certainly instigated many of the acts complained of and that he himself made unwanted comments to Mr Cutmore as well as attempting to pull down Mr Cutmore's trousers and tickling him. Mr Cutmore complained to Mr Trigg who took no action, dismissing what he had been told as "fun".

There was no evidence before us from any of these witnesses suggesting that the Applicant initiated any of Mr Trigg's physical behaviour towards him. The Applicant's actions towards his colleagues goes some way towards showing that he willingly participated in much of the behaviour about which he now complains. His demeanour in the workplace could well have encouraged the attentions of his colleagues who perceived him as homosexual by reason of his words and actions. Mr Trigg in evidence before us said that he, on one occasion simulated (albeit that there was no physical contact) the act of anal intercourse with the Applicant after the Applicant had said that he had not had sex for a long time and bent over. Although we find parts of Mr Trigg's evidence to be unreliable and his memory to have been very selective, we accept his evidence on this matter.

Mr Jones did not complain to management; as to that the Tribunal said at 6.15:-

The Applicant never complained to Management about the behaviour of Mr Trigg. He did not use the harassment procedure nor did he contact Personnel nor use the Hot Line procedure [that is a reference to particular form of complaining in theory open to Mr Jones]. He told us that he did not use either of the proceedings as he believed Mr Trigg to have a good working relationship with Mr House and that he would therefore not be believed and feared recrimination. He did not contact Personnel, as he was concerned that his complaint would not be treated with confidentiality. He formed this belief because of a telephone conversation, which he had overheard sometime in 1996. The Applicant did not complain to Mr Trigg or ask him to stop the behaviour. His evidence was that he "tried variously to push Mr Trigg away" or "would laugh and move away" and "at times I would go along with it." He did not personally make it clear to Mr Trigg that he was rejecting the behaviour and conceded that Mr Trigg may not have realised that he was upset by it"

In 6.24, speaking of the relationship between Mr Trigg and Mr Jones, the Tribunal said: -

"…….the Applicant made no complaint about Mr Trigg when they were alone together, on the contrary it was his evidence, which we accept, that when they were alone they were able to communicate sensibly and cordially and had a good working relationship."

8. He did however, complain to Mr T J Smith one of the Stanstead Duty Managers but without what one might, perhaps, call conviction; as to this the Tribunal said at 6.16: -

"The Applicant did complain to Mr T J Smith who on two occasions took the matter up with Mr Trigg. On the first occasion, he did so almost as an aside to what was being discussed generally between them and on the second occasion, sometime in 1996, he did so specifically, when Mr Trigg told him that Mr Jones should be "man enough" to take the comments made, for apparently Mr Smith had said that the Applicant did not appreciate the comments. Mr Smith witnessed the feigned anal intercourse twice. When he asked the Applicant about it, Mr Jones merely said, "It was one of those things." On a further occasion thereafter when Mr Smith told Mr Jones that he would speak again to Mr Trigg, the Applicant told him not to, stating that he preferred to sort matters out himself. He failed to do so however. Mr Smith left the Respondent's employ voluntarily in February 1997."

9. On 29 August 1997, the Applicant who was off sick and had described himself as suffering from an intolerable degree of stress, resigned. His letter of resignation was produced to the Tribunal and it gave as his primary reason for leaving:-

"……..the continual harassment which the Applicant had received "because he was believed to be homosexual." Although the letter was addressed to Mr Trigg it was copied to Ms Sanderson for information; she was the company's Personnel Officer."

10. Ms Sanderson required there to be a full investigation. Mr Trigg was at first suspended. There was a disciplinary hearing as to Mr Trigg's conduct and ultimately he was summarily dismissed. Senior members of the company including Ms Sanderson, were held by the Tribunal to have attended Stanstead and to have spoken to all the managers, who, following the meeting were left in no doubt that the culture of this workplace had to change. Behaviour of the sort described was to cease forthwith, as it would not be tolerated.

Mr Figg had left the company in the September.

11. Against that broad background the Tribunal set out the respective submissions of the parties. They referred to Smith –v- Gardner Merchant [1998] IRLR 510, in the Court of Appeal, to James –v- Eastleigh Borough Council [1990] ICR 554, in the House of Lords, and King –v- Great Britain China Centre Ltd, [1992] IRLR 513, in the Court of Appeal and to Reed and Bull Information Systems Ltd –v- Stedman, [1999] IRLR 299, in the EAT. We do not understand Mr O'Brien for the Applicant to argue that the Tribunal misunderstood those cases.
12. The Tribunal had heard some nine witnesses and received a written statement only from one other. The hearing was spread over four days, of which at least two were given over to the reception of evidence and the rest, as it seems, to argument and to the Tribunal's own deliberations amongst itself. The decision, which we have recited already, was unanimous and was that the Applicant was not discriminated against on the grounds of his sex and was not unfairly dismissed.
13. At the preliminary hearing at the Employment Appeal Tribunal on 1 November 1999 one ground only was permitted to come forward to this full hearing, namely the Tribunal's approach and conclusion as to sex discrimination. There is therefore now no appeal before us on the ground of unfair dismissal.
14. Turning, therefore, to sex discrimination, the combined effect of sections 1 and section 2 of the 1975 Act is as set out by Ward LJ, in Smith –v- Gardner Merchant Ltd, at paragraph 8. Basically Section 1 is framed in relation to discrimination against a woman but by reason of the later section it applies also to the case of discrimination against a man. Ward LJ, if I might adjust his language a little further, sets out the Act as it would apply so far as concerns a man. In that way, one reads it as follows: -

"1.1 A person discriminates against a man in any circumstances relevant for the purposes of any provision of this act if -

(a) on the ground of his sex that person treats him less favourably than that person treats or would treat a woman.

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.

6(2) It is unlawful for a person, in the case of a man employed by him or an establishment in Great Britain to discriminate against him-

(a) ……………….

(b) by dismissing him or subjecting him to any other detriment."

That is not how the Act is drafted, but that is how it works in relation to discrimination against a man

15. It seems difficult to regard this as a case in which Mr Jones was discriminated against by reason of his being a man, as opposed to his being a man perceived by his fellows to be homosexual. Indeed, in answer to a question I put to Mr O'Brien, my note reads of his answer "He was treated as he was, not because he was a man but because he was perceived to be a homosexual." Mr O'Brien later sought to withdraw that observation. It seems to me that the observation had force in the sense that Mr Jones did seem to have been treated as he was, not because he was a man but because he was regarded as homosexual.
16. Discussing whether a person has been treated less favourably within the act is necessarily a comparative exercise and where a person perceived to be a homosexual is claiming to be treated less favourably by reason of his being that, rather than merely by reason of his being a man, it seems that the proper comparator in these circumstances of the case, would be a lesbian woman or, at any rate, more probably, a woman perceived to be a lesbian. That might seem to be a remarkable and severe limitation as to the type of complaints open under the 1975 Act and, indeed, it is but that that it so seems to us plain from Smith –v- Gardner Merchant Ltd, at paragraphs 47, 50 and 52, per Ward LJ and in paragraphs 67 and 69, per Slade LJ.
17. Mr Birtles for ICS complains that to regard a comparator of a kind approved by Smith –v- Gardner Merchant Ltd as including a person perceived to be homosexual would be an unrealistic extension of the case. It seems to us that the essence of Smith –v- Gardner Merchant Ltd is that one needs to draw a comparison which is nearly as possible like with like, and in Mr Jones' case, that would seem to suggest a comparator who was or was perceived to be a lesbian.
18. This strange limitation is, as it seems to us, an inevitable concomitant of the Act clearly dealing with discriminating on the ground of sex but not including, and being held not to have included, discrimination on the ground of sexual orientation. There were a few women at Stanstead but there is no indication in the Tribunal's findings of fact as to how a lesbian woman or a woman so regarded would have been treated by the workforce. We do not have any Chairman's Notes suggesting that any evidence was led on the subject.
19. Whatever rights Mr Jones might be able to claim or will in the future be able to claim under the Human Rights Act when it comes into force is not a matter for us, but we see this absence of a correct comparator to be sufficient, on its own, to cause his case to fail. There is no finding as to how a lesbian woman would have been treated and that as it seems to us, under Smith –v- Gardner Merchant Ltd, would have been the proper question to ask. If there was no finding then the next question behind that would be whether there was evidence which should have led to such a finding. That could only have been proved by way of Chairman's Notes, which we have not got, so it seems to us there is a material hole in the Appellant's case. That point however, it is fair to say, has not been stressed by Mr Birtles. Mr Jones takes the point but does not put it at the front of his argument and it would, we think, be dangerous to rely upon that as the only ground in relation to this appeal. So we need to go beyond background and look at other arguments raised by Mr O'Brien.
20. The first broad ground is that there is some conduct of a sexual nature (so argues Mr O'Brien) which is so commonly regarded as unwelcome that it is not necessary for a complainant to prove that it was in fact unwelcome, or to prove, by reason of its being unwelcome, that he or she being subjected to it represented a detriment. His argument is, therefore, that there was no requirement here on the part of Mr Jones to indicate that what was being done to him was unacceptable. The Tribunal's reference to the conduct spoken of as being the norm at Stanstead does not, he says, take it out of the category of appalling behaviour, as so offensive as per se to be treated as unwelcome, at any rate unless expressly proved to have been invited. The Tribunal should have recognised, says Mr O'Brien, this was sexual harassment amounting to sexual discrimination, irrespective of whether it was proved to have been unwelcome. He refers to Reed & Bull Information System to which we have already given a reference. In that case the marketing manager embarked on actions in relation to his female secretary which were not only unwanted but which he knew were unwanted. His secretary had become angry; she had complained to him and to three colleagues at work. In the Reed & Bull Information System case at [1999] IRLR 299, the facts are set out and one finds these passages: -

"As to whether the conduct is unwelcome there may well be difficult factual issues to resolve. 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 a room might be sufficient. Tribunals will be sensitive to the problems the victims may face in dealing with a man, perhaps in a senior position to herself, will be likely to deny that he was doing anything untoward and his 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."

21. That is the background of guidance given by the Employment Appeal Tribunal in that case. It was not purporting to set out any universal principle; it was giving a common sense guide to help other Tribunals. Here, in our case, we have passages which we have not yet come onto on the subject, which show what was going on in this case.

The Tribunal in their paragraph 9.1 say: -

"We were troubled by the very nature of the behaviour complained about. Was this the sort of behaviour that would implicitly be unacceptable without it needing to be specifically raised? We have concluded that the conduct must be viewed in the context of what was "the norm" in this workplace. It has to be viewed against the culture which we have described. Viewed against that culture, we are of the view that it was incumbent on an individual to make it known that the behaviour was unacceptable. This the Applicant did not do, on the contrary there were times when he appeared to encourage it and even take the lead.

We have considered carefully whether the Applicant only "went along" with the behaviour to avoid problems and recriminations. It defies belief however that he would have done so for so many years especially as he is an intelligent and articulate individual who was able on a one to one basis to communicate well and cordially with the Second Respondent."

22. If the acts amounted to physical assault he would, of course, have had the remedies of the criminal law.

In their 9.3, the Tribunal says: -

"We have concluded that the Applicant willingly [and it is an important word to notice] participated in much of the behaviour about which he now complains. He without doubt instigated some of it."

Speaking of Mr Trigg, Mr Jones: -

"……conceded before us that it was possible that the Second Respondent did not realise that his actions were unacceptable.

Whilst the motives of the Second Respondent's actions are irrelevant it is nevertheless necessary, in dealing with such an individual to spell out to him what is unwelcome and this the Applicant never did, on the contrary, he joined in, instigated and generally gave the impression of being a willing participant."

23. As to complaints, Mr Jones had mentioned matters to Mr Smith. The finding was that although he made Mr Smith aware that he was upset he made light of one of the most serious acts about which he now complains. The Applicant knew that Mr Smith had spoken to Mr Trigg; he declined to let Mr Smith speak to Mr Trigg again, stating that he preferred to sort it out himself, but that he never did. He did not personally make the Second Respondent aware that any of the behaviour was unwelcome- see paragraph 9.3.

The Tribunal said at 9.5: -

"To amount to harassment, conduct which is not expressly invited, is generally regarded as unwelcome but there has to be some perceptible rejection of the behaviour in question. Was the Applicant's complaint to Mr Smith in 1996 a sufficient perceptible rejection? We conclude that it was not for it seems, from Mr Smith's evidence, that the Applicant only complained about the remarks and apparently shrugged off some of the actions about which he now makes complaint. Further, when Mr Smith offered to speak to Mr Trigg again, the Applicant told him that he would sort the matter out himself. He did not do this…."

24. Those are all issues of fact essentially best left to the fact-finding body. They alone can judge what impression can be gained from the whole body of the evidence as it came out; we do not even have Chairman's Notes.

The Tribunal continued in their 9.6: -

"We therefore conclude that viewed in the round, horrendous though this behaviour was, it did not amount to sexual harassment because no-one understood the Applicant to be rejecting the conduct about which he now makes a complaint.

"9.7 We therefore conclude that the Applicant has not discharged the burden of proof that is upon him and in those circumstances, his claim to have been discriminated against on the grounds of his sex by the Second Respondent fails," [and in turn the claim against the employing company failed.]"

25. Mr O'Brien makes the powerful point that to require "perceptible rejection" is an error of law. Indeed, there is no statute or, as yet, reported authority that we understand to use this expression "perceptible rejection." It has to be taken here in the context in which it is found. It is in the context of a person who has been held willingly to have participated in much of the behaviour of which he now complains, a person who, without doubt, instigated some of it, a person who joined in, instigated and generally gave the impression of being a willing participant. Moreover, in relation to Mr Trigg, he made no complaint to him, notwithstanding that he was on a cordial basis with him and in the further circumstance that the Tribunal found Mr Trigg, in effect, to be an unusually obtuse and coarse fellow in this particular area of activity, a person other words, especially unlikely to see his own conduct as offensive unless it were pointed out to him.
26. Were the Tribunal to be taken to be setting out some universal requirement of the law that there had to be shown to be "perceptible rejection" in all cases, we would have seen force in Mr O'Brien's complaint on that score, but, taken in context on the extraordinary facts of this case, we do not see it to be an error of law. We do not see that passage in paragraphs 9.6 and 9.7, last quoted from, to represent an error of law. The parties by their evidence have shown that what is now claimed to have been rejected by Mr Jones as manifestly objectionable behaviour was in the particular circumstances of this case widely tolerated over a period. Perhaps the most compelling example, as to which Mr Trigg's evidence was believed, was that Mr Jones had said to him that he had not had sex for a long time and had bent down.
27. What is welcome or unwelcome is so obviously a matter best to be left to the determination of the fact finding body which hears the whole of the evidence that unless there is some manifest error of law, the better course is to leave the decision as it is. Here we do not spot any manifest error of law, the argument being that without there being, in this particular context, something to make it clear that Mr Jones did not want what was happening, then he can not truly be said to have suffered a detriment. Limiting ourselves very much to the particular facts of this case, we do not see any error of law in this first area of complaint that Mr O'Brien touches upon.
28. As a second ground, Mr O'Brien urges that there are references in the evidence to Mr Jones indicating that he had, indeed, objected to the behaviour of the people as to which he later complained, and so there are. One has to emphasise that the Tribunal at some points is stating the evidence that it heard; more relevant is the position when it comes to deal with its findings. As the citations we have given indicate, it is not every aspect of the evidence that led to a finding. Mr O'Brien's skeleton said that the Tribunal ought to have concluded that the conduct of Mr Trigg had been rejected. The Tribunals are the masters of fact; we cannot possibly conclude, especially when we do not even have Chairman's Notes, what they should properly have concluded, looking to the evidence as a whole, because we do not have before us the evidence as a whole.
29. We do not see the main issue that we take Mr O'Brien to have pressed, namely the issue as to the need for or no need for "perceptible rejection" to be an issue of real principle. The Tribunal held that this was an extraordinary métier, with Mr Jones having himself given the impression of being a willing participant, willingly having instigated much of the behaviour of which he later complained. They held also that Mr Trigg was a man incapable of managing people or of grasping the full import of the culture which he had allowed to develop and indeed, had encouraged. Mr Trigg, was a man who needed things to be pointed out to him. In this particular case it was necessary for the Applicant to spell out what was unwelcome. The Tribunal is expected, still using the expression, if we may, that they are "the industrial jury," to use its common sense in the light of the evidence it hears. The conclusion that it came to is very much not a statement of universal principle but simply an observation relevant to the facts of this case.
30. Doing the best that we can, even leaving aside the real doubts that we have about the need for a comparator and who that comparator will be should have been, we have been unable to find real error of law in the Tribunal notwithstanding the skilful assistance of Mr O'Brien.
31. Accordingly we must dismiss the appeal.