United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S SPENCER (Solicitor) Instructed By: Messrs Jones & Warner Solicitors 60 Lombard Street London EC3V 9EA
For the Respondent	MR T LINDEN (of Counsel) Instructed By: Mr D Cockburn Messrs Pattinson & Brewer Solicitors 30 Great James Street London WC1N 3HA


 


JUDGE D PUGSLEY:

1. This is an appeal from a decision of the Employment Tribunal sitting at Truro. The Tribunal found that the Applicant was unfairly dismissed but they dismissed her claim for sexual discrimination.
2. The Applicant worked in the packing of the Respondent company who were meat processors. She had a reputation, the Tribunal found, for being forthright and she was the only woman in the department of about 20 men. Her employment at the Respondent firm had not been uneventful. In December 1998 she received a final warning because she punched a manager. She was not dismissed because of her mitigating circumstances. She had recently had a termination of pregnancy and her employers exercised consideration for that but, although not dismissed, she was subject to a final warning.
3. The matter which led to the dismissal occurred on 27 April 1999 during the night shift. The wrapping machine had broken down and an engineer Mr Johnson was called. He was a trainee and found nothing wrong. There was some argument and abuse on the part of the Applicant which was resented by Mr Johnson. He left to collect his tools. When he returned he had to pass the Applicant in a very narrow space between the machinery. It was about the width of a bus aisle or even less but evidently he had had to squeeze past her unless she moved. Because of the early abuse he did not take the obvious course of asking her to excuse him but simply barged past.
4. The Applicant Miss Sharkey objected. According to witnesses she made an accusation and gave him a push, the force of which was disputed but according to Mr Johnson, according to the Tribunal, was a substantial push. The witnesses suggested she thought he was going "to touch her up" or something. It was the end of the shift and the Applicant, depending on which version was accepted, left or was sent away. The Tribunal found that was not a difference they had to adjudicate on. She was telephoned and told not to come in and suspended.
5. The Departmental Manager, Mr Morgan, investigated and understood that an assault by the Applicant might have taken place and Mr Jinks the night shift manager reported her as becoming abusive and saying that Mr Johnson was trying "to feel her up".
6. It was clear to the Respondents that they were dealing with an allegation of assault by Miss Sharkey but also there was a possibility that she might allege that that was an incident due to sexual misconduct. They did not suspend Mr Johnson for a separate investigation of that allegation.
7. The disciplinary hearing took place on 20 April and Miss Sharkey was accompanied by her boyfriend, Mr Cave. Mr Morgan the Departmental Manager was present and he and Mrs Parkinson of the Personnel Department dealt with the case. Mr Manning the Human Resources Manager had heard about the allegation and advised Mrs Parkinson to investigate the possibility of an incident of sexual harassment. In due course he was to hear the appeal.
8. During the disciplinary hearing the Tribunal found that Miss Sharkey was specifically asked whether she was alleging Mr Johnson had "felt her up". She made it very clear that she was not saying that and her reply was "I never meant anything like that". Her defence was that she had not pushed Mr Johnson very hard and she refers to his substantial size. She conceded that she had a temper and spoke her mind.
9. Despite the expectation that the question of a sexual allegation would be raised as a explanation for the matter, that was not done so at that hearing. She was dismissed. She appealed to Mr Manning and then the question of sexual harassment did raise its head. Mr Manning re-interviewed the witnesses. He had the suggestion of "touching up". He also had the explicit denials which she made at the disciplinary hearing. At the appeal hearing she said that she had not said Mr Johnson had "touched her up" but he had brushed against her from behind and she did not like that sort of thing. She said it made her feel sexually harassed and she pushed him away saying "I do not like people brushing against me, don't brush against me, where's your manners".
10. Mr Manning took the view there was no suggestion of a deliberate action on the part of Mr Johnson and Mr Manning concluded "I do not believe the Applicant felt she had been sexually harassed by the act of the engineer brushing past her". He decided there was no sexual factors to the incident and dismissed the appeal.
11. At paragraph 12 onwards the Tribunal proceed to note a number of concerns. They note, in particular, that the Applicant was suspended whilst they carried out an investigation but that the engineer was not suspended whilst they carried out an investigation into a possible sexual harassment incident.
12. The Tribunal note that the Respondents should have dealt with each allegation in a similar way and they should have specifically inquired at a stage earlier than the disciplinary hearing whether she was alleging sexual harassment or not. Her answer may have been no different from that which she put forward in the disciplinary hearing, when she made it clear she was not making an allegation of sexual harassment. If she had raised the point it would have been quite clear that there would have been a further enquiry by Mrs Parkinson who asked the Applicant several times during the disciplinary hearing.
13. The Tribunal were also concerned, and set out their reasons at paragraph 14 of the Extended Reasons, that not all the witnesses were interviewed. Others were standing around. Mr Morgan who interviewed the witnesses understood there were a number present. He did not interview Mr Cave who was Miss Sharkey's boyfriend, nor did he interview the Applicant herself. He told the Tribunal it would have been inappropriate to interview Mr Cave as he was a boyfriend of Miss Sharkey. The Tribunal rejected the inference that his evidence would inevitably have been biased and they said that Mr Cave should have been interviewed. The Tribunal also thought that others should have been interviewed. The Tribunal say this, in paragraph 14:

"What would almost certainly have emerged was the applicant's recent history of sensitivity to anything of a physical nature in more detail. That would have led to further consideration by the respondent about the seriousness of her reaction to being brushed past by Mr Johnson. In addition they would have been reminded of a serious assault in 1997 on her by a manager who had kicked her. He had not been dismissed – merely transferred to another department. She had been off work for several weeks following a termination of her pregnancy. Another incident which would have emerged was the serious sexual assault on her in September 1998. These were incidents known to the lower management of the respondents and should have emerged had there been sufficient enquiries. Although she did not wish to pursue the matter, in our judgment, the respondents at that time should have investigated and taken action against the individual concerned. It was an obvious question for Mr Morgan to investigate the reason for Miss Sharkey's reaction to being brushed against. Mr Cave was the person best placed to give the relevant background but he was excluded deliberately from the investigation. The further information which Mr Cave could give could have been confirmed by the shift manager at the time Mr Jackson and any other staff on duty at the time."

At paragraph 15 the Tribunal say this:

"Any violence on a factory floor where there is machinery can be, and usually is, treated very seriously by employers but this final incident when Miss Sharkey pushed Mr Johnson, on any view could hardly amount to a serious physical assault. There was even confusion as to where the push had been, whether it was against the shoulder, arm, hand or stomach. There were different versions. According to Mr Morgan the applicant had 'lashed out'. Mrs Parkinson used the word 'push'. Mr Manning used the words 'lashed out'. Mr Johnson described the matter as a push as did Mr Hoskin."

14. After noting in paragraph 16 that there probably would have been no dismissal if the Applicant had said at the disciplinary hearing that she felt she had been sexually harassed and her action was in retaliation the Tribunal said that if there had been a full investigation the background leading to her emotional and sensitive state would have emerged. The directions of law are certainly concise. Paragraph 17 reads as follows:

"Clearly the reason for the dismissal was connected with the applicant's conduct which is a potentially acceptable reason under section 98 of the Employment Rights Act 1996. We have to consider whether it was a sufficient reason for dismissal. There must be a full investigation of all circumstances which are relevant before a dismissal is justified. That was lacking. In addition the respondents were inconsistent. There had been two serious physical assaults on the applicant in the past but no dismissals had result in those cases. For those reasons we find the dismissal unfair."

15. We have had the opportunity of a very able argument by the Solicitor, Mr Spencer, appearing for the Appellant. It ought to be said that Mr Spencer did not appear at the Tribunal below. In essence Mr Spencer's arguments are as follows. He points out that there is no express reference to authorities. He does not suggest (in fairness to him) that that in itself gives him a ground of appeal but he does go on to say that there are areas when, looking at the Tribunal decision, the Tribunal is substituting its own view for what is reasonable and he reminds us of the judgment of Mummery LJ in the case of Foley v Post Office [2000] IRLR 827, which reasserts the position that an employer's conclusions have to be evaluated within the band of reasonable responses.
16. Mr Spencer says that effectively the Tribunal in paragraph 13 make two findings. There must be a full investigation of all the circumstances that are relevant before the dismissal; that was lacking; that the Respondents were inconsistent in that it was unfair to dismiss the Applicant because of the two serious physical assaults on the Applicant in the past and no dismissals had resulted in those cases.
17. We have been referred not only to the case of Foley v The Post Office but also the case of Beedell v West Ferry Printers Ltd [2000] IRLR 650, a decision of this Tribunal and referred to in an unreported decision by Lindsay J in Quaker Oates Ltd v Shiraj, appeal number EAT/280/98. We mention the decision of Lindsay J and to which we have been referred, at page 14 paragraph D, in which he says this:

"What Burchell and other cases require to be sufficiently investigated is the misconduct relied upon in a misconduct case and not some more remote underlying causes. It would be quite unreasonable to expect an Employer to have at hand, at the disciplinary stage, the means of making an adequate investigation of remote possible causes such as, for example, a broken home or a spouse's infidelity or an inability to have children (which, in fact, was mentioned by Mr Siraj). Indeed, it would perhaps be regarded as offensively intrusive were an employer at a disciplinary stage to embark on questions of any such nature. If the Employment Tribunal had asked itself only whether the misconduct relied had been sufficiently investigated it could only have answered that it had. Its regard to an alleged failure to attempt to complete an investigation of more remote causes and its reliance upon that failure by Quaker Oats Limited represented, in our view, an error of law."

18. Mr Linden does not attempt to suggest that paragraph 17 should represent a template of how issues of law should be dealt with. He has adopted a more robust view. What he has said in argument to us, which was foreshadowed in his skeleton argument, is that if you actually look at the basic essentials, what the Tribunal is doing in paragraphs immediately prior to paragraph 17 is to set out the nature of their concerns. Although Mr Linden accepts the drafting is not as clear as it might have been, he submits that the reality is that the Employment Tribunal based its conclusion that the Respondent was unfairly dismissed on the matters it had set out as concerns in paragraph 12 to 16. Paragraph 17 is merely a summary of its overall view which was that the investigation which had been carried out was one-sided and the sanction was disproportionate, giving that the Appellant's treatment of two serious physical assaults on the Respondent. That, says Mr Linden, is a permissible conclusion. We accept that what happens in the workplace is different from more remote underlying causes mentioned by Lindsay J in Quaker Oates (supra).
19. It is true that the decision does not recite the fact that it is directing itself within the ambit of reasonable response line of authorities; it does not make an express finding one way or the other as to the extent to which the appeal cured any procedural defect. It does not in terms set out the fact that it had in mind, at the point where it made the determination that the dismissal was unfair, that the Applicant was subject to a final warning and it does not, in paragraph 17, go back to say that any reasonable employer would have regarded this as a less serious assault.
20. We accept that this decision could have been more carefully drafted. This is a Tribunal, not a Court presided over by a mere judge, which has the advantage of having experienced members of both sides of industry with a long history of involvement in issues such as these. We consider that taken in the round what clearly emerges is that this Tribunal considered a reasonable employer would not have dismissed the Respondent for a relatively minor matter of assault, in circumstances where the Applicant had herself been the subject of recent physical violence. We consider that was a decision to which they were entitled to come.
21. We wish to add this. We do not in any way want to pre-judge what decision, if any, the Tribunal will reach on compensation but we do (if we may and, I speak specifically having asked the lay members of this) voice a concern which we are sure has been voiced on many other occasions and that is the propensity of Employment Tribunals to look at merely one issue. We strongly suspect that where Tribunals ask themselves "Was there a dismissal, was that dismissal unfair? If so, did the Applicant contribute to that dismissal or should there be a reduction in compensation or other remedy awarded because of a finding that part of the reason for finding the dismissal was unfair was the procedure was inadequate?". We suspect there would be far less appeals to this Tribunal when the total questions are asked, because it does enable the Tribunal to reflect the true justice of the situation. We want to say right away that it is not for us to determine the answer to those questions but on the facts of the matter it may be, to put it at its most neutral, reduction in compensation may be a very live issue.
22. At the end of the day a tribunal which has seen the witnesses, heard the arguments and knows the chemistry of the case are in the best possible position to judge the fairness of a decision. Whilst we consider that this appeal is very well argued and it has flagged up areas where the reasoning could have been more explicit.
23. At the end of the day we feel that this matter was properly dealt with by the Tribunal and that we should not interfere and send this case back. But we do say that it is clear as to this decision that no findings have been made as to contribution, no findings have been made as to Polkey and, as Mr Linden with characteristic frankness said, unless there was some agreement of which he is unaware that issues would not be raised, the issue of contribution, the issue of reduction for a Polkey basis, are still very much matters to be argued and are live issues. In seeking to say that, we are not seeking to influence Tribunal decisions arising from the facts themselves. The appeal is dismissed.