United Kingdom Employment Appeal Tribunal

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Cite as: [2003] UKEAT 0330_03_2107, [2003] UKEAT 330_3_2107

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		BAILII case number: [2003] UKEAT 0330_03_2107
		Appeal No. EAT/0330/03

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 July 2003

Before

THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)
MS S R CORBY
PROFESSOR P D WICKENS OBE

MS M A WLODARCZYK APPELLANT

SHELL PENSIONS MANAGEMENT SERVICES & OTHERS RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

APPEARANCES

For the Appellant	MR R THACKER (of Counsel) Instructed by: Messrs Royds RDW Solicitors 2 Crane Court Fleet Street London EC4A 2BL
For the Respondents	MR B CARR (of Counsel) Instructed by: Messrs Lewis Silkin Solicitors 12 Gough Square London EC4A 3DW

THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)

This has been the hearing of an appeal by Ms Wlodarczyk against the unanimous decision of the Employment Tribunal at London (South) dismissing her complaints against the Respondent company, Shell Pensions Management Services Ltd, and seven named other Respondents, that she was discriminated against on the grounds of her sex by virtue of a lengthy series of allegations of sexual harassment, and dismissing her claim that she was unlawfully victimised by the Respondents or certain of them by virtue of her having made such complaints.

The case came on on 25 November 2002 by way of a hearing of two Originating Applications; one relating to the original acts of discrimination and one relating to the alleged victimisation, which was said largely to arise out of the failure by the Respondents, and in particular a Ms Moore, to investigate and report upon those allegations.

Pending the hearing of those applications the Respondent company continued to investigate, and took the view that not only was there no foundation in the allegations but also the Applicant should be disciplined for maliciously having made them; and pursuant to that disciplinary process she was dismissed. That dismissal occurred subsequent, as we have indicated, to the issuing of the second application, and the Applicant's complaint that that dismissal was not only an unfair dismissal but also amounted itself to acts of discrimination and victimisation formed the subject of a third application.

By the time the third application was thus issued (and, of course, no criticism could be made whatever of the Applicant in relation to late issue of that third application because, as we have indicated, it arose only out of events which had occurred after the first and second application) the first and second applications were fixed for hearing; and those representing the Applicant sought to have the third application consolidated with the first and second applications, and that application itself to the Employment Tribunal was refused, primarily on the basis that it would cause an adjournment of a case which had by then been fixed for some time, and for which some fifteen days or so had then been set aside, starting so very shortly afterwards.

An appeal was brought to this Employment Appeal Tribunal, and came on before the President sitting alone on 20 November 2002.

The prime worry that those representing the Applicant had was of the risk of issue estoppel by a Tribunal which would not be seised of the third application; because it would be pretty obvious that whichever way it was concluded in relation to the original two applications would be likely to be determinative of the third, subject of course to any separate allegation that might be made of unfair procedure, if that could indeed be treated as stand alone in the light of the outcome of the first two applications.

It was also possible, although not at that stage capable of being particularised or articulated, that some of the evidence which would be on any basis admissible in evidence in relation to the third application might also be relevant in relation to the first and second applications.

The President's judgment was given on 20 November 2002 and essentially was a judgment aimed at achieving justice from all points of view. There was not to be an adjournment of the hearing. There was to be consolidation to the extent that the three applications would be listed together, but that there would be no determination in relation to the third application, and no requirement on the Respondents to scurry around in the few days that remained for the hearing to put in a Notice of Appearance or to deal in substance with the third application.

What was ordered was that a supplementary statement should be served from the Applicant, setting out the matters which had occurred subsequent to the second application which would be sought to be relied upon in the third application and some or all of which would be alleged by the Appellant to be admissible and relevant on the first and the second applications also. Once that statement was served that gave the opportunity for the Tribunal at the start of the hearing to decide what, if any, of the evidence so included would be relevant on the first and second applications and, further, given that the third application would be before that Tribunal, it would be in fact the same Tribunal which would be in due course deciding the third application even though it would not be resolved at the same time as the first and second application; and therefore if any relevant evidence were given on the first and second applications which would also be relevant on the third application, it would remain on the record, and in the mind of the Tribunal presiding over both hearings.

That is what occurred, namely the case came on on Monday 25 November and no adjournment was sought, or indeed was necessary, and the supplementary statement was indeed served.

What occurred is not completely agreed between the two legal teams, but there is no material difference between them. In general terms it is accepted that the Tribunal did not in fact read itself, at any rate so far as is known, the whole of the new supplementary statement; but it relied upon the parties to make submissions as to what, if anything, was relevant for consideration on the first and second applications by reference to that statement.

It was common ground, as a result of the Order of this Tribunal if nothing else, that there was to be no adjudication on the third application and in any event, as we have indicated, the Respondent had not yet even put in its Notice of Appearance.

What was agreed was that it was right and sensible for the adjudication of the issues relating to the first and second applications to continue up to the end of the grievance procedure which would inevitably form part of the victimisation case; and there was a short statement of agreed facts, drawn from the supplementary statement, which were dedicated towards enabling the Tribunal to reach conclusions about that additional……………...

It was equally common ground that the Tribunal was not to reach any decision on the adjudication on the issues of the fairness or otherwise of the dismissal. What, however, was to be done, pursuant to this Tribunal's earlier Order, was that if there were any evidence in the supplementary statement relevant to the first and second applications that would and could be adduced.

What was clear from the supplementary statement was that the Applicant had some covertly-taken tapes which the Applicant believed was going to show that one of the witnesses proposed to be called by the Respondent, a Kim Lee, had made inconsistent statements.

It was further common ground that, insofar as either it could be shown that any witness of the Respondents or the Applicant had made statements in the course of the disciplinary process which was inconsistent with any earlier statements made at the time of the investigation into the alleged harassment, or indeed the grievance procedure, then that too would be likely to be admissible, and would inevitably be likely to be used in cross-examination. But subject to those safeguards, and the Tribunal having heard any submissions made by both sides in that regard, the Tribunal concluded that it was not necessary or appropriate for the whole of the supplementary statement to be permitted; and the case went ahead on that basis.

In the event, the Tribunal was wholly unpersuaded by any suggestion that Ms Lee had made any inconsistent statement, and her evidence was accepted. As we will indicate when we come to deal with the second ground of appeal before us by the Applicant, the Tribunal disbelieved the Applicant and concluded that her evidence was not credible.

The first ground of appeal before us by Mr Thacker of Counsel, who appeared on the original application before this Employment Appeal Tribunal on 20 November 2002 and at the hearing, as well as before us today, is his complaint of a failure by the Tribunal to admit the supplementary statement. He submits that, in order to comply with the Order of this Employment Appeal Tribunal per the President, the Tribunal ought to have done so.

In the judgment on 20 November 2002 the following is stated:

8 "Mr Thacker who has been recently instructed, and not therefore fully on top of the case, is unable to give concrete examples [of facts that might be relevant on both the first and second and the third applications] but he gave hypothetical ones...It is inevitable, given what I have called the flip side of the coin, that there must be a chance that matters which occurred in relation to the disciplinary enquiry leading up to the dismissal will be of relevance in the consideration of the very events themselves, which were, as it turns out, the subject matter of that disciplinary enquiry.

…

10 It may well be that matters have been discovered in the course of disciplinary enquiry which will either be helpful or unhelpful to one or other side's case or as to what earlier happened…Equally, maybe, and I know not, it may be that, in the course of a disciplinary enquiry, inconsistent statements had been made by one side or the other which will fall to be compared with what was said at the time or with what is now being said about what was said at the time.

11 It seems to me that it is not possible to bring down the curtain temporally on anything post-dating the two existing applications…Mr Thacker says, although he has not been instructed, that his client is going to say that more than what I have just summarised is relevant in respect of subsequent events to the earlier events. And if that is so, then that evidence would in any event be relevant on the first two applications, and it appears to me far more likely that a Tribunal will be able to sort out what is relevant and what is not if it is seised of all three of the applications in detail.

12 What does not appear to me to have been considered, and therefore, in my judgment, an important part of the balancing act required by the Tribunal was omitted, was what I propose to order, after the matter has been fully canvassed with the parties, namely, that, although the three applications are combined such that Tribunal is now seised of all three, and will in due course be trying all three, the third will not be tried on 25 November. …

13 …I have ordered that a supplementary statement be served by the Appellant on the Respondent…setting out the matters post-dating April 2002 upon which the Appellant would wish to rely in the first and second applications which will otherwise be relevant on the third application. That will enable the Respondents to grasp the additional points that are sought to be made, which on the view I take would be at any rate arguably relevant on the third application anyway.

14 Of course, it is not taken for granted that the content of this statement, which will be served on Friday, will necessarily be accepted as so relevant, and it will be a matter for the Tribunal hearing the case still to have to decide that, on the face of seeing something in black and white which is going to be relevant on the third application, it will also be relevant on the first and second…"

That did not, in our judgment, require the Tribunal itself to read the supplementary statement, but rather to hear submissions as to what parts of the supplementary statement would or might be relevant on the first and second applications, it being relevant on the third application; and it was essential that the Tribunal should bear in mind, as it did, the distinction between matters in respect of which it was going to adjudicate, namely the first and second applications, and matters on which it was not going to adjudicate, namely the fairness of the dismissal.

Last Friday we requested Mr Thacker in advance of the hearing to indicate those parts of the supplementary statement which he was going to submit ought to have been admitted as relevant to the first and second applications but also said to be relevant to the third application, in order to indicate:

(a) any respects in which the Employment Tribunal erred; and, equally if not more significant

(b) the respects in respect of which, if at all, the Appellant was prejudiced.

He indicated in response two things:

(1) He submitted that the Tribunal ought to have read the whole of the supplementary statement in order to get, we think as it was put in orally to us, the "flavour" of the statement; and thus the fact that, as the Applicant submits, the Respondent acted unfairly towards her throughout. More particularly

(2) he identified three paragraphs which he submitted ought to have been admitted. It is not suggested that before the Tribunal he identified those three paragraphs. But we have looked at them now for the purpose primarily of seeking to understand any prejudice.

Paragraph 24, the first of them, simply recites that it was asserted by the Applicant that two of the company's witnesses had made false statements. One of those witnesses was Ms Lee, and the basis on which it was suggested that she had made a false statement was by reference to the tapes. That, of course, was admitted by the Tribunal, and the tapes were put to her. The other witness was Ms Moore, and it is accepted by Mr Thacker that, in relation to Ms Moore too, he was able to put to her in cross-examination any false statements that she was said to have made.

In paragraph 26 there is, again by way of commentary rather than actual evidence, a reference to a Mrs Brook, who was not to be called as a witness by the Respondents at the hearing, and who is said by the Applicant in that paragraph to have unquestioningly (I think it must mean, although it says 'unquestionably') accepted the statement of Ms Lee. Mr Thacker submits that in some way that complaint by the Applicant ought to have been able to be put in before the Tribunal. We do not see how that is in fact material, given that the real issue was whether Ms Lee was telling the truth or not. Any question as to whether the Respondent unquestioningly accepted the honesty of Ms Lee would go primarily, if at all, to the fairness of the dismissal procedure, which was not being adjudicated on in the first and second applications.

The third paragraph which was referred to by Mr Thacker before us was paragraph 31. That is a summary paragraph, in which the Applicant's arguments are set out, on which no doubt she would rely to assert that the dismissal was unfair; and she sets out why it was unfair that she should be dismissed without notice, by reference to failings she alleges in the disciplinary process. It appears clear to us that, given that the Tribunal was not to adjudicate on the fairness of the disciplinary process, there was no relevance to those matters on the question of the first and second applications, which related to events many months earlier. Mr Thacker submits that it would have shown that the mind of the Respondent continued to be closed to the strength and veracity of the Applicant's allegations; not only when she made them but also during the grievance procedure and right through to the dismissal. That was of course entirely apparent to the Tribunal. The Tribunal knew not only that the Respondent did not accept the veracity of the allegations when they were made but that in due course the Respondent dismissed the Applicant because she had made them.

In our judgment, it was not necessary or material to go into the precise circumstances of the dismissal process in order simply to make that point and in any event, as we have indicated, at that stage there was no Notice of Appearance in from the Respondent, and the circumstances as to the dismissal procedures would no doubt have been heavily contested; and if the third application does now proceed will be still contested, as is apparent.

In those circumstances we are satisfied that the decision by the Tribunal not to admit the supplementary statement, which was, pursuant to the order of this Tribunal, served for the purpose of assessing whether any evidence contained in it would be relevant and admissible on the first and second applications, in its entirety, was neither a failure to follow this Tribunal's Order, nor in any way an error of law; and in any event neither led to any evidence which should have been adduced not been adduced, nor to any prejudice whatever. It was archetypally not only a question of case management but just the kind of exercise of discretion by the Tribunal which this Appeal Tribunal had intended it should exercise when the Order was made on 20 November.

The first ground of appeal is thus dismissed and indeed we did not call on Mr Carr in respect of it.

The second ground of appeal relates to the following circumstances. The Appellant was the only witness who gave evidence in support of her own case.

A helpful chronology has been prepared by Mr Carr, which has not been contested by Mr Thacker, which summarises the sexual harassment allegations which the Applicant made. They were not what one might call normal, ordinary allegations which this Tribunal and even more so the ordinary Employment Tribunals, see, sadly, on a regular basis, whether true or false, in relation to employment of women, or indeed of those who allege race or sometimes disability discrimination. Women do face, sadly, in this day and age still, problems at work involving harassment and unpleasantness from fellow male employees. They will include inappropriate words and gestures, jokes about their sex life or their family life which are, uncomfortable and intolerable on many occasions and which this Tribunal and the Employment Tribunals are, pursuant to legislation passed for the purpose, determined should if at all possible be stopped.

There will in many cases be an allegation of more than one such incident and the evidence will be contested as to whether the incidents took place, or whether there has been an exaggeration on one side or the other as to what happened, a misunderstanding, a forgetfulness or a moment of aberration which can otherwise be justified, or perhaps an allegation that there was give and take in an office which could justify what had occurred.

Insofar as there are some dozens of incidents on some occasion, it is sometimes the case that some of them are well-founded and others not; and they usually involve one female employee and one male employee who in some circumstances or other have either got on the wrong side of each other or have misunderstood each other; or, of course, simply the inappropriate behaviour of one male employee who rightly or wrongly thinks that he is in a position to pursue a perceived attraction.

But the chronology here listed what Mr Carr has told us, although Mr Thacker does not accept its complete accuracy, and we have not sought to tot the matters up, to be some 300 allegations, stretching over nine or ten pages, sometimes (and this is how the 300 no doubt arises) involving ten or a dozen similar incidents on one day. They involve physical assault, licking of the Applicant's ear, unpleasant physical approaches such as numerous simulated orgasms, sexual licking of lips and touching of crotches and wholly inappropriate and unpleasant sexual approaches demanding or recommending sexual intercourse.

The incidents are said to have begun in July 2000 and continued until May or July 2001. The first complaint of any kind that was made, in relation to these extremely frequent and serious allegations, was when the Applicant emailed the Respondent's harassment adviser on 9 April 2001, just about 9 months after the incidents had started.

The Respondent's case was that none of these incidents had occurred at all. They were not simply, according to the Applicant, a catalogue of incidents by one employee. It appears clear that the suggestion is that they began with one employee, a Mr Lock, but that on the basis that the Applicant did not sufficiently (or to Mr Lock's satisfaction) respond to such approaches, other male employees in what was in fact an open-plan office joined in the unpleasant activity; hence, the joinder of six named Respondents.

Thus, the somewhat unusual circumstance was approach by Mr Lock, rejection, irritation on the part of Mr Lock and then joining in by a large number of male employees, almost in each case in front of each other, that is by way of group harassment; and that this, as we have indicated, went on for a very long time before there was any complaint at all.

The Tribunal referred to the fact that the first complaint, namely on 9 April 2001, came only nine days after a meeting which the Applicant had had with her superiors when no mention was made of the complaint, but the Respondent refused to give the bonus to her to which she considered she was entitled, or at any rate which she was expecting.

In the course of her cross-examination, Mr Carr of Counsel, who has appeared before us as he appeared below, explored the nature of the allegations that she was making and put to her that they were unusual and of a somewhat startling kind, and asked her whether she had ever been subjected to any such treatment or had made any such complaints before. She said no. The Tribunal record this in paragraph 15 of its Decision.

The Respondent knew of the existence of a previous application which stood in the name of the Applicant and Dresdner Kleinwort Benson (a merchant bank) and named individuals. Neither Mr Carr nor the Respondent knew at that stage any more than that, but it appeared to be an Originating Application which might possibly make similar complaints.

After the denial by the Applicant in the Tribunal, an application was made to the Tribunal for disclosure of relevant documents relating to that Originating Application, and the order was granted by the Tribunal, but limited to the Originating Application, the Notice of Appearance and any pleadings.

The documents were thus produced, and before the Tribunal, and it became apparent that the Applicant had indeed made complaints against that employer of sexual harassment. On the basis of the Originating Application, denied in the Notice of Appearance, she alleged that the harassment began with the inappropriate conduct of one fellow employee, that she rejected his approaches, that that was met by irritation, that other employees then joined in and used forms of body language towards her; and that they used collectively inappropriate sexual language towards her, making innuendos about her sex life and suggesting intercourse; and, as she put it, reduced her status to that of a sex object.

It appeared that the Applicant had settled that claim before it came to hearing before a very substantial sum so that the truth of those allegations were never tested by a court. But what of course remained was that she had not disclosed that fact to the Tribunal. She did not, for example, say that she did appear to attract this kind of inappropriate sexual behaviour which she regretted and resented, and that that had previously happened at another employer, and that she had been paid substantial compensation as a result; but she had attempted to conceal that fact.

She was cross-examined further about it. At paragraph 52 the Tribunal record as follows:

52 "We found that the Applicant had made a complaint of unlawful sex discrimination against Dresdner Bank and named individuals. When comparing that application with these two applications we found that there were striking similarities. The allegations and pleadings were similar in outline and structure: a large number of individuals had been accused of sexual harassment and were named as Respondents; the timing of the complaints appeared to be similar. In the present case the Applicant presented a complaint to the Tribunal [that must, we think, be a misprint for presented a complaint to the Respondent] when she was finally refused a pay increase and, in the case of her earlier application against Dresdner Bank, when she was finally informed that she would not be offered any employment [in the sense that she was to be made redundant]."

The evidence of the Applicant was heavily tested in cross-examination. It was apparent, not only, against the background to which we have referred, that she had concealed the similar incidents involving the other employer, but that the conduct itself appeared to be difficult to credit.

Mr Carr has listed a number of the points which he made to the Tribunal, in paragraph 9 of his Skeleton Argument, and which, in due course, were found by the Tribunal in its Decision. We set them out as follows:

(1) The Appellant worked in an open plan office into which there was three doorways which were regularly used by employees working on the floor (paragraphs 23 and 24 of the Decision).

(2) Mr Lock told the Appellant that there was a swimming pool in the building, which she could use, in the hope that the Appellant might arrange to use the pool with his wife [who we interpolate was in fact working in the same building] (paragraph 26 of the Decision).

(3) Mr Shaw and Mr Lock had made attempts to ensure that the Appellant was taken out to lunch by Ms Chan and Mr Johaadien (paragraphs 26 and 27 of the Decision).

(4) Mr Shaw had learned that the Appellant had been seen crying and had sought to find out from her what was wrong (paragraph 28 of the Decision).

(5) The Appellant made her first written complaint of sexual harassment by letter dated 30 April (paragraph 34 of the Decision), which letter followed a meeting with Mr Craven, Managing Director of the first Respondent, at which the Appellant had challenged the level of bonus which she was to receive.

He set out other matters in his Skeleton Argument which we do not repeat, and then he summarises at paragraph 9 (11) of the Skeleton Argument the following submissions as to why the Appellant was submitted by him not to be a credible witness:

"- the extraordinary number of allegations made;

- the open-plan layout of the office…;

- the improbability of the Appellant having been treated as alleged on almost a daily basis for the best part of a year and there being no-one who could corroborate her complaints;

- her inability to explain in a convincing manner how the alleged acts had occurred;

- the incredible nature of the allegations;

- the unconvincing evidence of the Appellant;

- the lack of any tape recording of the incidents, notwithstanding the fact of covert recording having been undertaken by the Appellant and the frequency with which they were alleged to have occurred;

- the lack of any reasonable explanation for not making a complaint of sexual harassment until 30^th April 2001…;

- the lack of candour on the part of the Appellant when cross-examined about the Dresdner complaint;

- the similarities…between the present complaint and the Dresdner complaint…"

Mr Carr made a submission at the close of the Applicant's evidence of no case to answer. The Tribunal did not accede to that application, although indicating that it could be renewed at a later date if so advised; and indicated (and this appears from paragraphs 13 and 14 of the Tribunal Decision) that it wished to hear evidence from the following Respondents and witnesses:

(i) Mr Lock – who was alleged, as appeared clear from the chronology to which we have been referred and indeed from the allegations themselves, to have been the prime mover in the alleged sexual harassment, and the original starting point of them;

(ii) Mr Shaw – who, like Mr Lock, had either taken part in, or was a witness, given the open plan nature of the office, of, a substantial number of the incidents;

(iii) Ms Lee – who was the lady who was said by the Applicant to have been a witness of some of the sexual harassment and to have made inconsistent statements according to a tape transcript of the conversation with her; and

(iv) Ms Moore – who was alleged to have victimised the Appellant by carrying out the investigation and grievance procedure inadequately.

Those were the witnesses whose evidence the Tribunal said that it considered necessary to hear. At paragraph 14 the Tribunal's Decision records (and there is no dispute about this) that:

14 "…at the conclusion of the evidence of these four witnesses, the Respondents and the Applicant could make further submissions as to whether the Tribunal should hear evidence from any other witness."

The Tribunal heard the four witnesses give evidence and cross-examined, and in particular the credibility of Ms Lee was left unaltered notwithstanding the alleged inconsistencies in the tapes which were put to her, and she did not support the case for the Appellant of which she was said was suggested to have been an eye witness.

Mr Lock and Mr Shaw were said, as we have indicated, to have been the main harassers. Although no exercise has been carried out today on a mathematical basis, it is not in dispute that they were either involved in or witness of, a substantial majority of the alleged incidents. And, as we have indicated, Ms Moore gave evidence.

There is no note of the subsequent exchange taken by the Tribunal, but there is no reason to doubt the account given by Mr Thacker, which comes from a note he told us was taken by his pupil. Mr Carr does not accept its accuracy but does not seek to challenge it.

Mr Carr's recollection, set out in his Skeleton Argument at paragraph 8, was this:

8 "Having heard from the four witnesses referred to above, the Tribunal gave the parties the opportunity to make submissions as to whether any additional witnesses should be called (see paragraph 14 of the Decision). The Appellant's Counsel made a short submission to the effect that it might be helpful to hear from others. The Respondent's Counsel did not seek to call any additional witnesses and the Respondent's case was therefore closed."

The note taken by Mr Thacker's pupil has been incorporated into a letter dated 16 July 2003 from the Applicant's solicitors to the Respondent's solicitors, which reads as follows:

"With regard to your counsel's skeleton argument we would like to put on record the following comments from our counsel. In paragraph 8 of the skeleton Mr Carr asserts that, after the ET asked both sides if we had any representations to make as to whether any more witnesses should be called, our counsel said it might be "helpful" if that was done. In fact, our Counsel's recollection is as follows.

…

[3.30 pm]

Chair: As you know we've said we've no desire to hear more witnesses. Submissions on more witnesses from Applicant.

Rajeev Thacker: You have heard some evidence, particularly from Mr Lock who admitted that there were sexual comments. You may consider it appropriate to hear from other witnesses since at least two others have denied this outright.

[Tribunal retires for three minutes]

Chair. Tribunal sticks to earlier view. Don't believe we will be assisted bearing in mind comments made by Mr Lock."

The reference to Mr Lock is, it is common ground, as follows. Mr Lock was cross-examined at some length by Mr Thacker. At the close of his examination and cross-examination there were, as is sometimes the case, questions from the Tribunal; and one of the lay members asked Mr Lock a question which had not been asked by Mr Thacker, arising out of one paragraph of Mr Lock's witness statement which he had given in chief, namely paragraph 26, which read as follows:

"I never heard anyone in the office making sexual comments towards Marta or otherwise acting in any way aggressively to Marta. If anything people and myself included had little to do with Marta for various reasons. The main reason I think is because she was difficult to get on with and had little or no intersocial skills."

The lay member asked, by reference to the first sentence of that paragraph, a question to the effect of whether there were any sexual comments ever made at the office, to which the answer from Mr Lock, although we do not have the notes of evidence, was, it is common ground, something along the following lines "Well there were sexual comments from time to time, but none that I recollect ever directed towards Marta."

Mr Thacker told us that he did not ask any questions arising out of that, and accepted that he plainly could have done, and that it was his decision not to do so. The result is that that was the only evidence which there was that at any stage, over any period of time at which the Applicant was employed, or indeed at which anyone was employed by this small company, some sexual comments were made; but how often there were any such statements or of what nature they were or whether directed towards anyone at all, or whether indeed in the presence of any women, never mind the presence of the Applicant, was not explored. There was no attempt to pursue the question as to the existence or nature of those sexual comments, either with Mr Lock by Mr Thacker, or with any of the other witnesses called for the Respondents who followed on.

It is clear that the nature of the evidence that the Applicant gave was that this was not a question of inappropriate sexual comment from time to time, but a campaign of aggressive collective harassment towards her, involving in some cases serious physical interference with her.

The Tribunal, says Mr Thacker, ought to have permitted, or indeed insisted on, the rest of the evidence being called, certainly in relation to the named Respondents because, as it happens, there was no evidence from Mr Charles, Mr Frazer, Mr Hamilton and Mr Powell who had supplied witness statements and were otherwise available to give evidence.

In fact we have the bundle of witness statements. It is apparent that two of the witnesses were not going to be called in any event, because they did not have material evidence to be given; but there were in fact 21 other witnesses listed for the Respondents, of which, pursuant to the indication by the Tribunal to which we have referred, only four were called.

Mr Thacker says that when he referred, in the note which we have recited from his pupil, to "at least two others have denied this outright", that was a reference to two of the Respondents, Mr Frazer and Mr Charles, both of whom had said in their witness statements that they did not recall there being any sexual comments in the office.

As a result of the conclusion by the Tribunal that they would not be assisted by any further evidence, Mr Carr reserved his position over night and the following morning announced that he had closed his case and would not be calling any further witnesses; and the Tribunal then considered its decision.

The Decision is a lengthy one and it, in great detail, demolishes the case for the Applicant, and indicates that it accepts the credibility of the Respondent and does not accept the credibility of the Applicant. In its conclusions, the following is stated by the Tribunal:

60 "The Tribunal found that the allegations of sexual harassment did not occur as alleged. In arriving at our findings, the Tribunal considered that the Applicant was not a credible witness. We were first concerned by the extraordinary number of allegations made; the Respondents estimated there to be some three hundred alleged incidents. Having regard to the open-plan office layout, the positioning of the Applicant's desk, the positioning of Mr Shaw's desk and the three separate doors which led into the Back Office, we considered that it was improbable that had the alleged acts occurred on an almost daily basis for the best part of a year no independent witness could corroborate the Applicant's complaints. The Tribunal listened carefully to the Applicant's oral evidence of her allegations of sexual harassment. We were struck by her inability to explain in a convincing manner how she alleged these acts occurred. We found the allegations incredible and we found the Applicant's evidence unconvincing. Furthermore, the Applicant had been surreptitiously tape-recording conversations with the first Respondent's employees. We consider that she failed to satisfactorily explain why she had been unable to tape-record any of the alleged remarks of noises if they had, as she claimed, been occurring so frequently.

61 The Tribunal considered that the Applicant gave no reasonable explanation for not making a complaint of sexual harassment until 30 April 2001. The incidents alleged were blatant and excessive and, had they occurred, would in our view have been intolerable for even a short time.

62 The evidence of the Applicant's previous complaint to the Employment Tribunal was relevant to our findings relating to the credibility of the Applicant for three reasons: firstly, her lack of candour during cross-examination on this matter; secondly, the similar outline and structure of the allegations, including the large number of individuals accused of sexual harassment; and, thirdly, the similar timing of the complaints.

63 The Tribunal finds that the various acts of sexual harassment which are alleged did not occur and we find therefore that the Applicant has failed to prove facts on which the Tribunal could conclude that the Respondents had committed acts of discrimination against her."

In relation to victimisation at paragraph 67 they point out that they concluded that the protected act relied on were "false and bad faith allegations". In paragraph 70 they again repeat:

67 "We find the allegations made against Ms Moore were not only false but we consider that they were made in bad faith."

No ground has been put forward to challenge the decision by the Tribunal in relation to its substance. What is said by Mr Thacker is that the decision by the Tribunal that it would not be assisted by hearing any further than the four witnesses who were therefore in due course called was erroneous in law, and that had some or all of those witnesses been called and been cross-examined it might be (and we are not to know) that they might have affected the view taken by Tribunal. He submits that the decision of the Tribunal to limit the Respondents to the four witnesses having been wrong, we should now set aside the decision, and the matter should be remitted for a completely fresh hearing in front of a fresh Tribunal. Plainly, if he is right, that is the only course that can be taken because it would not be a feasible possibility, as he himself rightly asserted, for this Tribunal to be asked to change its mind having reached a decision already of such a firm kind.

The basis on which he makes the submission is by reference to two decisions to which we will refer: Hackney Borough Council v Usher [1997] ICR 705, and Logan v The Commissioners of Custom & Excise [21 January 2002] EAT Unreported EAT/686/00. He also referred us, although accepted that it was of no materiality, to the case of Ellis v The Ministry of Defence [1985] ICR 257, where an Employment Tribunal had effectively found against a Respondent without having heard the Respondent's evidence. That is plainly a question of an unfair hearing which is not relevant here. In this case the Applicant had given the entirety of her evidence and been cross-examined and she bore the onus of proof and plainly, because the Tribunal disbelieved her, she failed to satisfy that onus of proof. So far as the Sex Discrimination Act 1975 section 63A is concerned, she did not get to the question of any transfer of the onus of proof to the Respondents, because the Tribunal found that there was no unfavourable treatment because there was no sexual harassment.

Hackney Borough Council v Usher was a case in which there was a complaint of unfair dismissal. The evidence was called first by the Respondent and there was a misunderstanding, not surprising because the law had only recently changed, as to whether there was an onus of proof on the Respondent. On the basis that the Tribunal concluded that there was a burden of proof on behalf of the Respondent in proving fair dismissal, when half-time came the Tribunal dismissed the case for the Respondent. On appeal to the Employment Appeal Tribunal that alone would have been sufficient to have caused there to be a rehearing because of course, as a result of the 1978 Act (as amended), there was no onus of proof on the Respondent employer.

The Tribunal's finding is set out as follows. It was a decision of His Honour Judge Clark and a Tribunal, and is set out in the holding as follows:

"Held, allowing the appeal, that the industrial tribunal, in stating that the evidence from the council's witnesses had not "shown" that the council had acted reasonably or fairly in treating the employee's conduct as a reason for dismissal and that the council had not made out a prima facie case, had incorrectly placed a burden on the council to prove reasonableness; that, although it was open to a tribunal to stop a case halfway where the party on whom the onus lay had failed to establish what he had set out to establish, it was difficult to envisage cases, other than utterly hopeless or frivolous cases, where such a course would be appropriate when there was no burden of proof; and that the industrial tribunal had erred in misapplying the burden of proof and in terminating the proceedings when they did…"

That, of course, was a case in which there was an upholding at the end of the case given by the first party of no case to answer. In our case both sides rely, by way of differentiation, on the fact that this was not a case in which there was the upholding of such a submission. Mr Thacker submits that, as the Tribunal had not upheld the submission of no case, therefore effectively they should then have gone on, if not to the end then certainly to the end of any evidence given by the Respondents themselves. Mr Carr submits that the Tribunal just needed, having declined but not beyond peradventure the submission of no case, were entitled to say that they just needed certain evidence from the Respondent to satisfy themselves that the case was not supportable.

In Hackney Borough Council v Usher Judge Clark referred to a decision of Slynn P in Coral Squash Clubs Ltd v Matthews [1979] ICR 607; and he did so as follows at 712E:

"The employer appealed [that is, in the Coral case]. The appeal tribunal allowed the appeal on two grounds: first, that the tribunal was wrong to refuse to admit hearsay evidence…Secondly, this tribunal held that the industrial tribunal should not have stopped the proceedings at the close of the employer's evidence in circumstances where they had refused to admit the hearsay evidence. The two points were therefore intertwined. It was submitted on behalf of the employer that proceedings before the Tribunal should always involve evidence from both sides. The appeal tribunal held that that was too extreme a position. Slynn J put the matter this way, at pp. 611-612:

"We do not think that there is a rigid rule of the kind which Mr Brooke first contended for. It is clear that in many cases it is of great importance to hear both sides. We think that will be the normal position. This appeal tribunal has already said in cases alleging race or sex discrimination that it is right normally to hear both sides. It has been said also that, where constructive dismissal is alleged, in the ordinary case it is important to call upon both sides to give evidence and, indeed, if a question of contribution arises, certainly it should not be decided against the employee without being allowed, indeed called upon, to give evidence. But as we understand it, this appeal tribunal has never said that the industrial tribunal cannot stop a hearing at the end of the case of the party whose evidence and submissions come first. It clearly is a power which must be exercised with caution; but if the tribunal is satisfied that the party upon whom the onus lies and who goes first has clearly failed either in law or in fact to establish what he set out to establish, then it seems to us that the industrial tribunal is entitled to decide the case at that stage…""

His Honour Judge Clark then went on by way of comment on that Decision as follows at 713C:

"A number of points arise. First, it is open to a tribunal to stop a case at half time where the party going first and upon whom the onus lies has clearly failed to establish what he set out to establish."

Then he sets out a second point; and then at 713F he sets out a third point, namely:

"…there have been and will be utterly hopeless or frivolous cases where a tribunal is entitled to halt the proceedings without hearing the other party."

It is apparent that that is a different category from his earlier category of cases where it is open to a Tribunal to stop a case at half time where the party going first and upon whom the onus lies has failed to establish what he sets out to establish.

Finally, at 714A Judge Clark refers to the broad case management powers which had been, at that stage, recently given by the then Industrial Tribunal Rules and which have been re-emphasised and indeed broadened in the Employment Tribunal Rules which have followed. Even in relation to those less emphatic Rules, Judge Clark said as follows at 714B:

"We accept that that alteration to the rules emphasises the industrial tribunal's role in conducting its own proceedings; however, it must in our judgment be read subject to the existing body of case law which holds that it is only in exceptional cases that it will be unnecessary to hear both sides before reaching a decision."

The other case to which Mr Thacker referred us was the decision of Mr Recorder Burke QC (as he then was) giving the judgment of the EAT in the Logan case, to which we have referred. That was a case where the EAT concluded that it had been inappropriate for any submission of no case to be upheld at half time. Judge Burke too considers (at paragraphs 17 and 18) that it should only be rare or exceptional or clear cut circumstances which were such as to justify the dismissal of the Applicant's claim after hearing his or her evidence alone.

That plainly would in any event be right in any area of the law. The upholding of a submission of no case requires satisfaction on the part of the Tribunal, which inevitably requires a heavy burden on them to be sure, and a good deal of caution, as Slynn P said in the Coral Squash Club case at 611-612.

Mr Thacker's submissions here are as follows:

(1) He accepts that subject to the appropriate degree of caution, even in a sex or race discrimination case, a Tribunal can, provided that the appropriate circumstances are there, uphold a submission of no case if it is satisfied that the Applicant cannot prove what she has set out to prove.

(2) He also accepts that a Tribunal can take a course, subsequent to a submission of no case, by way of the kind of decision that was made in this case, indicating either that a submission of no case could be pursued and allowed even some way through the Respondent's case or, as here, an invitation to the Respondents effectively to call no further evidence, because no further evidence from the Respondent was, so far as the Tribunal was concerned, necessary for its Decision. But he submits that that should only occur in exceptional cases, and he submitted that it should almost never, as he put it, occur in relation to a case involving sexual harassment or racial harassment. The minute of course one gets into this kind of definition, as Mr Carr points out, the questions arise as to what are meant by exceptional circumstances and indeed what is meant by sexual or racial harassment?

There is no such express definition in the legislation. Sexual or racial harassment is simply an example of unfavourable treatment on grounds of sex or race within the legislation. At the suggestion of Ms Corby on behalf of the Tribunal, Mr Thacker adopted the suggestion by reference to the Commission Code of Practice on Protecting the Dignity of Women and Men at Work, upon which he told us he in any event did rely before the Tribunal, which contains a definition of sexual harassment as being:

"unwanted conduct of a sexual nature, or other conduct based on sex affecting the dignity of women and men at work" This can include unwelcome physical, verbal or non-verbal conduct."

Even as so defined, it may be difficult to draw the line between what is what one might call ordinary sex discrimination and what is sexual harassment, as so defined, and of course it also does not help in relation to a definition of what is meant by racial harassment. It seemed to us difficult to pigeon hole any particular kind of action as one in which something higher than exceptional circumstances would, it seems according to Mr Thacker, be needed before this kind of course was permissible.

Why he makes the submission as he puts it, on the basis of public policy, is because it is generally accepted that it is more difficult for race discrimination or sex discrimination to be proved than the usual kind of claims for unfair dismissal or redundancy; particularly in relation to sexual harassment cases a woman is obviously sometimes alone and unprotected and faced with a barrage of evidence of denial which it is difficult for her to surmount.

Mr Thacker submits that in those kind of cases it should be almost never that a Tribunal should not hear the whole of the evidence, at any rate, the whole of the evidence proposed to be given by any named respondents, although, as he accepted in the course of argument, it is not be a very sensible distinction for two reasons:

(i) that it is not necessarily the fact that someone has made a respondent that makes his or her evidence significant. For example, he accepted that if there was only one alleged sexual harasser, but there were said to have been a substantial number of eye-witnesses to such an incident, then the eye witnesses would fall into the same kind of category as any alleged individual respondents;

(ii) if this process was to be attached to a condition that such a person be a respondent, it would encourage applicants simply to join more people as respondents in order to bring themselves within the alleged 'exceptional circumstances' rule. It cannot therefore depend upon the identity of a witness as a respondent or not as to whether the exceptional circumstances rule can be said to apply.