United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR PAUL T ROSE (Of Counsel) Instructed by: Messrs Latham & Co 15 High Street Melton Mowbray Leicester LE13 OTX
For the Respondent	MR OLIVER SEGAL (Of Counsel) Instructed by: Messrs Thompsons Solicitors Congress House Great Russell Street London WC1B 3LW


 


JUDGE PETER CLARK

1. This is an appeal by Reuters Ltd, the Respondent before the London (North), now (Central), Employment Tribunal, chaired by Mr D J Latham, sitting on 15-16 December 1999 and 9 March 2000, upholding a complaint of unlawful sex discrimination brought by their former employee, the Applicant Miss Williams, by a decision with Extended Reasons promulgated on 5 April 2000. The allegation was one of sexual harassment by her manager, Mr Young. The Respondent accepted vicarious liability for the acts of Mr Young; the issue was a purely factual one; had Mr Young sexually harassed the Applicant, particularly after she had made it known to him that his attentions were unwanted and unacceptable. He said that he had respected her wishes; she said he had not.
2. The material facts as found by the Employment Tribunal were these. The Applicant had been engaged by the Respondent under a series of short term contracts beginning in June 1997 and ending with her resignation effective on 23 October 1998. Her services had been provided by an agency, Staffwise Ltd. It was her first proper job; she was born on 29 July 1975.
3. She worked as an indexing editor in an otherwise all-male team led by Mr Young known as the RNG Group.
4. Mr Young first made his feelings known to her at a leaving do for a colleague held in a Public House on 21 August 1998. He told her of his particular liking for her. At the end of the evening he invited her to take a taxi with him and 2 male colleagues. She declined. However, earlier in the evening she had agreed to go out with Mr Young after work on 25 August.
5. On 24 August she e-mailed him saying she could not make the following evening, but the meeting was re-arranged for 27 August. That arrangement was also broken, but they met on 1 September. That was the only occasion that they met socially, other than in the company of other work colleagues. During that meeting they exchanged details of personal matters: she referring to an earlier kidney transplant operation; he to his previous marital difficulties. Later, they met other colleagues at another Public House. At the end of the evening the two of them went together to London Bridge station. There was a factual dispute as to whether they exchanged a kiss before separating to go home; he claiming that they did; she denying it. The Employment Tribunal did not find it necessary to resolve that issue, accepting that they parted on cordial terms. However, over the next few days matters changed in the mind of the Applicant.
6. Because a good deal turns in this appeal on the next chronological findings by the Employment Tribunal, set out at sub-paragraphs (p) and (q) of paragraph 3 of their written reasons, we should recite them in full:

"(p) By 4 September 1998 the Applicant had made Mr Young aware that she was not content to continue any social relationship any further. By then Mr Young knew that was the situation. However, he proceeded to send an e-mail on that day and it is set out below:

"I have to apologise for my behaviour over the last couple of days. I know the situation is impossibly hard for you.

The last thing I want to do is to make you unhappy.

I guess I am finding it hard to deal with as well. The problem is that I really like you.

The other night meant a great deal to me. I can't stand the though of not doing it again.

May be you don't want to hear this but it is important to me to know that I feel this way. You are much more than another (two names referred to) ego trip.

Hope this isn't too scary because I would like to see you again soon."

(q) This e-mail is unacceptable from a person in a management position when sending it to a person who is subordinate in the organisation. The Applicant perceived from this that she was trapped. On 10 September 1998, arising from what had been said to him by another colleague, Mr Young asked the Applicant to talk to him. She agreed to do so and did so on the balcony to the office. He clearly told her off. His attitude was oppressive. As a result of that conversation he sent a further e-mail later that day following on from that conversation. The postscript to that e-mail reads as follows:

"PS I would still like to talk to you outside the office sometime. It wasn't my intention to come across like the heavy boss man just know. I have found some perspective on things, but I still care about you."

7. On 11 September the Applicant had a second session with a stress counsellor, the first having been on 5 August. The Employment Tribunal found that by 11 September Mr Young's conduct could well have contributed to any stress related symptoms from which the Applicant was suffering.
8. Over the next few days following the 10 September Mr Young passed some messages to the Applicant requesting her to meet him to clear the air. In the circumstances, found the Tribunal, this was inappropriate. He did then ultimately stop those messages.
9. On 28 September he actually recommended the Applicant for a permanent contract in a memorandum to his superiors but he never told her of that fact.
10. On 15 October she handed in her resignation. Having found out about her resignation Mr Young spoke to his senior, the acting deputy editor Gem Conn and told her of the Applicant's resignation and said that she had made some social mistakes ie outside work activities.
11. Having spoken to Ms Conn Mr Young sent a further e-mail to the Applicant in which he said:

"Helen

I would appreciate it if you would keep quiet about your decision until next week. Anthony is in Tibberton tomorrow so I won't get a chance to talk to him until Monday. Don't relish being bombarded with questions I can't answer before then.

I have told Gem who was very upset. She thinks as highly of you as I do. I told her of my sorry part in your unhappiness here, if she asks you can be brutally honest with her.

Sincerely hope that wasn't a factor. I still think you have more to offer Reuters in the long term than anyone else in the group."

12. The Employment Tribunal observed that the contents of that e-mail did not correspond with what he actually said to Ms Conn. In the event the Applicant's notice expired on 23 October and she left the employment. The Employment Tribunal found as a fact that she resigned because of the treatment she had received from Mr Young.
13. This appeal raises 2 questions of law, in our view:

(1) did the Employment Tribunal fail to resolve conflicts of evidence on significant questions of fact. Levy v Marrable [1984] ICR 583

(2) did the Employment Tribunal make a significant finding of fact which was unsupported by any evidence. Piggott Brothers & Co Ltd v Jackson [1992] ICR 85, 92F per Lord Donaldson of Lymington MR.

14. As to the first question Mr Rose submits that the Employment Tribunal ought to have made the further findings as to what actually happened between the Applicant and Mr Young on 21 August 1998 and more particularly whether or not they exchanged a passionate kiss, to use Mr Young's expression in evidence, on the night of 1 September. These were matters going to the credibility of those principal witnesses and also went to the question as to whether Mr Young's subsequent attentions were unwelcome to the Applicant and whether she suffered a detriment.
15. We do not accept, in the context of the Employment Tribunal's eventual findings, as opposed to the way the case was put at its highest by the advocates below, those who appear before us today, that these were significant matters in the sense that their resolution was or might have been central to the outcome. The Employment Tribunal preferred instead to rely upon the common evidence between the Applicant and Mr Young and the tangible evidence in the form of e-mails sent by Mr Young to the Applicant.
16. As to the second question, the particular finding challenged by Mr Rose appears in the first 2 sentences of paragraph 3(p) of the reasons set out above. Was there any evidence to support those findings? We emphasize the word any as Lord Donaldson did in Piggott.
17. In our view there was; first the words used by Mr Young in the first two lines of his e-mail on 4 September; secondly, the oral evidence of both the Applicant and Mr Young as to her avoiding him, as he said he was aware on 2-3 September.
18. For completeness we reject Mr Rose's submissions, first that the Employment Tribunal had confused the timing of e-mails passing between the Applicant and the Respondent on 4 September; there is no basis for so finding in circumstances where the Employment Tribunal do not refer in their reasons to the Applicant's e-mail on that date, sent after receipt of that from Mr Young; secondly that the principles in Meek v City of Birmingham District Council [1987] IRLR 250 require the Employment Tribunal to spell out the evidential basis for the material findings of fact.
19. Those are the only points which properly fall for consideration as a matter of law in this appeal. Mr Rose's further complaint that there is no express finding that Mr Young's treatment of the Applicant on 10 September 1998 (reasons paragraph 3(q)) itself amounted to discrimination on the grounds of sex runs counter to the approach suggested by Mummery J in Qureshi v Victoria University of Manchester, now at last reported at 2001 ICR 863 (Note), cited by Holland J in Driskel v Penninsula Business Services Ltd [2001] IRLR 151 and approved by Sedley LJ in Anya v University of Oxford [2001] ICR 847, to the effect that Employment Tribunals should take an overall view of the facts as found in determining whether or not unlawful discrimination is made. That is what this Employment Tribunal did at paragraph 5 of their reasons, where they said this:

"The Tribunal's unanimous decision is that the Applicant was the subject of harassment by the Respondents through Mr Young since 4 September 1999 (1998),when he knew any further approaches from him were unwelcome and unacceptable yet he persisted with such approaches, whilst still occupying a management position senior to the Applicant and in which position he had a strong influence on her future permanent employment with the Respondent. The Applicant, therefore, on the finding of facts has been less favourably treated by way of her sex and her claim succeeds."

20. In our judgment that was a conclusion which was open to the Employment Tribunal and permissible in the light of their findings of fact.
21. It follows in these circumstances that no error of law is made out in this appeal and consequently it must be dismissed.