United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MICHAEL DUGGAN (Of Counsel) Instructed by Messrs Astons Solicitors The Stables Manor Road Staverton, Near Daventry Northants NN11 6JD


 


MR RECORDER LANGSTAFF QC

1. This is a Preliminary Hearing in respect of a decision by the Employment Tribunal sitting at London North, whose decisions were promulgated on 19 March 2001. After seven days of hearing some nine months earlier the Tribunal held in those reasons that the Appellant and a Mr Cant had discriminated against Mrs Brett and Mrs Hart on the grounds of their sex.
2. It is important to note that there were two Respondents to the original claim: the direct discriminator, Mr Cant, who has raised no appeal against the findings of the Tribunal, and the Appellant who was held liable because of the terms of Section 41(3) of the 1975 Act to which I shall return. There were two complainants. Mr Duggan, who has appeared for the Appellants today, does not complain about the joinder of their case but points out, as is entirely correct in our view, that although linked by many facts they are separate cases and require to be treated separately. The essential allegation by the Respondents was that they were bullied by Mr Cant. That bullying included a lack of respect for them as women and in the case of Mrs Hart unwanted and unacceptable sexual advances.
3. The appeal has been put before us on the basis that first of all the Employment Tribunal erred in law in failing to differentiate between the cases of the two Respondents. If it had done so, it is said, it would have been bound to come to the conclusion that there was no discrimination in relation to Mrs Brett. That is because, says Mr Duggan, the findings that there had been a sexual relationship and continued sexual harassment by Mr Cant of Mrs Hart, has been allowed to colour the view that the Tribunal took of the evidence of Mr Cant in relation to Mrs Brett.
4. The second main plank of the appeal before us is that on any showing, it is said, the Appellant took all the steps that it could, that is all the steps that were reasonably practicable, to prevent any sexual discrimination taking place, in particular, given the lack of any complaint by the Respondents.
5. So far as the facts are concerned it is not necessary for the purposes of this judgment to set out the details at any length. Suffice it to say that there are copious references to sexual harassment by Mr Cant of Mrs Hart. There are a number of references to the knowledge of Mr Gurr, who kept a diary, that relations between Mr Cant and Mrs Hart were far from easy. In particular, that in March 1999 there had been a discussion between Mr Gurr, a senior manager, and the Respondents at which he had asked how they felt they were doing and what was going right or wrong. Both had complained, one becoming very emotional, plainly resenting the previous relationship she had had with Mr Cant, and critical of the style of management, alien, as she suggested, to the culture of the Appellant. The following day, Mr Gurr, in a separate discussion, learned that there was terrible friction and heated discussion when the Respondents came into the office, the inference is in the presence of Mr Cant, and some six days later he was to write in respect of complaints made about Mrs Hart, again one infers by Mr Cant:

"As usual Chris had lied about certain events."

There is no record in the Employment Tribunal's decision, long as it is, that the employers ever took any steps to prevent or minimise conduct of that sort by Mr Cant once it had come to their attention.

6. The Tribunal in dealing with the defence under Section 41(3) had to consider the words of the statute. Those are as follows:

"In proceedings brought under this Act against any person in respect of an act alleged to have been done by an employee of his it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing in the course of his employment acts of that description."

It said this, at paragraph 87:

"Taywood did not take reasonably practicable steps to prevent Mr Cant from treating the Applicants in this way. Mr Gurr was aware as early as 22 October 1998 of the possibility of the relationship between Mr Cant and Mrs Hart. Taywood's policy was not to deplore personal relationships at work unless they impinged upon the working relationship. Such a policy may be reasonable but it contains the potential for abuse. In this case where all three employees had come as a "team" from another employer and a pre-existing relationship between two of them was found to have existed the risk was bound to be greater. Taywood wholly failed to take the reasonable step of asking Mrs Hart whether there was a problem at work. Such a step could have enabled them to ascertain the true position."

At paragraph 88 the Tribunal dealt separately with the case of Mrs Brett and said this:

"So far as Mrs Brett was concerned Mr Gurr recorded that he was "slightly nervous of Heather and Teresa because of their relationship with Chris" on 27 October 1988. He recorded his amazement that Mrs Brett had left work with a broken arm in February 1999. Yet nobody from Taywood apart from Mr Cant ever contacted her about that or her resignation in March 2000."

7. We have come to the conclusion that so far as the case in respect of Mrs Hart is concerned there is no properly arguable ground of appeal. So far as she is concerned any finding in respect of the credibility of Mr Cant towards her in relation to the allegations of sexual harassment seem to us to justify the preference which the Tribunal had for her evidence over his, notwithstanding that aspects of her evidence included matters which were not so much related to sexual harassment, as to bullying, albeit alleged to be on the grounds of sex. So far as the second and third principal grounds of appeal are concerned, that is to the effect that it was not open to the Tribunal to decide that the employer had failed to discharge the burden resting upon the employer under Section 41(3) to make out the statutory defence, we have come to the conclusion that there is no reasonably arguable ground of appeal.
8. Mr Duggan's arguments rest heavily upon the proposition that an employer has to have a complaint before the employer can be bound to take steps. He accepts that in the absence of a complaint an employer must in any event have a policy and make it known to employees that they have every right to, and should be encouraged to, complain of matters of discrimination or harassment which may concern them. However, we note that under Section 41(3) the words are much more general. They are not restricted to showing that an employer had a policy. Nor are they restricted to occasions when the employer knows that a particular employee is subject to particular acts of discrimination, as indeed the last phrase demonstrates because it is not simply the act complained of but acts of such a type which are proscribed. It is not for this Tribunal to judge whether or not an employer should or should not have taken any particular steps, whether steps were or were not reasonably practicable, providing that we are satisfied that the Tribunal was not perverse in the decision to which it came. It seems to us that so far as Mrs Hart is concerned there was sufficient in the evidence for them to be able to conclude that Taywood should have done more. The step which they indicate that Taywood should have taken, that is the step of asking Mrs Hart whether there was a problem at work, was we think, a finding which was open to them. Accordingly we think there is no force in the appeal thus far.
9. We turn however to the case in respect of Mrs Brett. The reasoning at paragraph 88 appears to be that nobody from Taywood apart from Mr Cant ever contacted her about an incident in which she left work with a broken arm, or about her resignation in March 2000. Mr Duggan has demonstrated to us in his submissions that those findings are open to challenge on the evidence and that they may form an insufficient basis for coming to the conclusion which is there expressed. It may be, but we shall say no more, that there was indeed a risk of infection of the case, so far as she was concerned, by the case so far as Mrs Hart was concerned. Accordingly, we think, there is an arguable case so far as she goes and that matter should proceed to a Full Hearing. We have taken some time to deal with the case so far as Mrs Hart is concerned because we see it as a distinct case in respect of which we do not give leave to appeal further. Therefor it is necessary for the reasons to be fully given as we have tried to do. So far as Mrs Brett is concerned we do not wish to pre-judge a decision in any way.
10. So far as directions are concerned that we would (subject to anything which counsel, both those for the Appellant and for the Respondent being present for the purpose of assisting with directions may say) say that the case should take no more than one half day to hear. Category B. Skeleton arguments together with copies of any cases to be relied upon, 14 days before the hearing. It may be that any cases which assist with the scope of the word 'act' in Section 41(3) would be of assistance.

Gentlemen, I do not think any further direction are required, unless either of you would wish them.

Sir, I certainly don't require any.

Sir, just to make sure I understood your decision correctly, the Appellant has leave to proceed on all three grounds in respect of Mrs Brett?

Yes.

In which case, a question of whether or not some notes in evidence are required, I don't say all, particularly as we had a horrendous task in the fact that the evidence took some six days, but on the Section 41 defence the evidence of Mr Gurr and a diary which he exhibited, or put in the bundle, forms the basis on the findings of fact of the Employment Tribunal. I think the appeal Tribunal would be assisted if that evidence were before the Tribunal. His evidence took less than half a day, his cross-examination I think was an hour and a half to two hours or thereabouts, everyone relied on witness statements in chief, but notes of evidence of that evidence together with the diary entries which are 'extracted' notepaper – Sir you have read those passages from the Tribunal's decision – many of the passages extracted which are in quotation marks are in fact diary extracts and they would be of real assistance in seeing the factual matrix behind the Tribunal's decision that reasonable and practicable steps were taken. It is the level of constructing knowledge in effect.

Mr Duggan, there should be no problem I suppose in having the diary, if the diary was material before the Tribunal?

Sir, no difficulty with that at all.

Our present view is that we do not need the Chairman's notes unless you would seek to persuade us that we should have them. So I shall direct that so far as the bundle is concerned it should include, and I hope the parties will liase to make sure we have the right documents, the diary entries from Mr Gurr.