United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR KEVIN HARRIS (Of Counsel) Instructed by: Messrs Webster Dixon Solicitors 21 New Fetter Lane London EC4A 1AW
For the Respondent	MR KEVIN CHARLES Barrister (Non-Practising) Cannon Gate House 62-68 Cannon Street London EC4N 6AE

SUMMARY

The Tribunal did not comply with its duty to resolve issues of fact and assess the credibility of witnesses, with at least succinct reasons. The Tribunal erred in discounting, without any assessment, what was in effect "recent complaint" evidence.


 


HIS HONOUR JUDGE RICHARDSON

1. This is an appeal by Miss Cadanna Peart against part of a Decision of the Employment Tribunal sitting in London Central entered in the Register on 19 February 2004. The Employment Tribunal rejected her complaints that she had suffered direct sex discrimination and victimisation. She appeals against the dismissal of her complaint of direct sex discrimination.

The Background

2. Miss Peart was employed by Dixons Store Group Retail Ltd, ("DSG" hereafter) as a sales adviser. She commenced employment on 19 July 2001. She worked full-time for a short period then part-time on Wednesdays and Thursdays at DSG's Wood Green Store.
3. It was her case before the Tribunal, that between 19 July and 27 November she was subjected to sexual harassment.
4. Her principal allegations were against another sales adviser, Mr Sappleton. She says he made unwelcome remarks of a sexual nature on a daily basis, pinched her bottom, deliberately pushed past her towards the tills, dragged her over to male friends who attended the shop, and on an occasion in September 2001 attempted to grab her and in the ensuing incident pulled at her trousers and ripped them down the seam.
5. She also made complaints against the deputy manager of the store, Mr Robson, and against the manger, Mr Omoyi who, she alleges, witnessed some incidents and sometimes perpetrated or instigated harassment himself.
6. These allegations of sexual harassment were very much in dispute. But it was not in dispute that on 27 November there was an incident at work between Mr Sappleton and Miss Peart over the claiming of commission for a sale. Mr Sappleton claimed the disputed commission on a sale by processing a refund to the customer and a fresh sale to himself - something which he should do only with the permission of a manager. Following this incident Miss Peart complained, both about the refund and about sexual harassment. Her allegations were investigated, but only the allegation about the refund was accepted. Mr Sappleton was warned in writing in respect of that allegation and transferred elsewhere. Miss Peart was notionally transferred to a different store, but allowed leave until in the following year, she went off sick, with a stress-related illness.

The Tribunal Proceedings

7. Miss Peart, in her Originating Application set out substance of her complaints. She said she had been told that the staff at the store would all tell the same story - namely, that they knew about her allegations.
8. At the Tribunal hearing, Miss Peart and DSG were both represented by Counsel. Miss Peart gave evidence herself and was cross-examined. She called one supporting witness, Miss Gowdie. Miss Gowdie was a friend of Miss Peart, who worked at another store owned by DSG. They met both in the course of work and at lunch time. Miss Gowdie's evidence was that during such meetings Miss Peart complained to her of the harassment she was receiving. As the weeks passed, Miss Gowdie said, she noticed that Miss Peart was distressed and not her usual self. Miss Peart wanted to know if she could transfer. So, if Miss Gowdie's evidence was true, although Miss Peart did not complain within her own shop, she did complain contemporariously.
9. On behalf of DSG a number of employees gave evidence, including Mr Omiyi and Mr Robson. Mr Omiyi denied any involvement in harassment of any kind. Mr Robson admitted one unfortunate remark, for which he had apologised. Other witnesses denied that they had seen incidents which Miss Peart said they had seen. Mr Sappleton, although subject of a witness order, did not in the end give evidence.

The Tribunal's Decision

10. As to Miss Peart's allegations concerning Mr Sappleton, the Tribunal said:

"8 Miss Peart says that another sales adviser, Mr P Sappleton, made remarks about her sex life on a daily basis. There is no supporting evidence for this. The evidence of Miss Gowdie, called by Miss Peart, is hearsay evidence and all the Respondent's witnesses deny that such remarks were made. In these circumstances, we can make no finding.

9. Miss Peart alleges that Mr Sappleton pinched her bottom, which she said was witnessed by Miss Byfield-Johnson. Miss Byfield-Johnson gave evidence and denied that this happened. There is a direct conflict and the Tribunal can make no finding that this occurred.

11. Miss Peart alleged that Mr Sappleton had said that she was sleeping with other men, referring to her boyfriend, and that "she could not handle the sex that he could give her." There is no corroborative evidence of this or of any of the remarks that Mr Sappleton is supposed to have made. We are therefore unable to make any finding that these remarks were made."

11. As to the specific incident concerning the ripping of the trousers, the Tribunal said:

"13. Miss Peart gave evidence that on 10 September 2001, Mr Sappleton ripped her trousers. She told us that it was a Wednesday. In fact, 10 September 2001 was a Monday. Miss Peart's evidence was that Miss Byfield-Johnson was present, but Miss Byfield-Johnson says that she was not present. Miss Peart's evidence was that she informed Mr Robson but Mr Robson said that she did not.

14 …There is nothing in the evidence that specifically corroborates that Mr Sappleton ripped Miss Peart's trousers or that Miss Peart reported it to Mr Robson at the time. For this reason, we can make no finding that Mr Sappleton did rip Miss Peart's trousers."

12. The Tribunal also dealt with an allegation about an inappropriate remark by Mr Omiyi by saying, after reviewing the evidence:

"There is nothing to support any remark made by Mr Omiyi whilst he was putting up Christmas decorations and we cannot find that any remark was made by him by Miss Peart."

13. The Tribunal dealt with the allegations about Mr Sappleton deliberately pushing past Miss Peart at the tills by accepting evidence of Mr Robson, the deputy manager that there was limited space at the tills and employees would have to put their hands on the shoulders of others to move round them. We note, incidentally, that in reaching this conclusion the Tribunal did not accept the written statement of Mr Sappleton or an account given by him at an earlier investigation.

Submissions on Appeal

14. On behalf of Miss Peart, Mr Harris's submissions may be summarised as follows.
15. Firstly, he says in essence that the Employment Tribunal has abdicated its duty to resolve issues of fact in a properly reasoned way. He says, effectively, that the reasoning stops where it should start. The Tribunal identifies a conflict that but does not resolve it. There is, he says, no indication in the Decision that the Tribunal made any assessment of the credibility of witnesses and there were no findings as to the credibility of witnesses in the Decision.
16. Secondly, he criticises the approach of the Tribunal to the question of corroboration. To say that since there is no corroborative evidence therefore the Tribunal can make no finding is to impose in effect the condition on Miss Peart that she must produce supporting evidence before a finding can be made in her favour. This, he submits, is wrong in law.
17. Thirdly, he says that if, contrary to his earlier submission, the Tribunal did resolve the conflicts in evidence between the witnesses, they have not said that they did so, still less how they did so. Their reasons are inadequate.
18. Fourthly, he criticises the discounting of Miss Gowdie's evidence on the basis that it is hearsay. He says it is supporting evidence of the consistency of Miss Peart's account, which would be admissible even at common law. He says, in any event, that there is no bar on hearsay evidence in Employment Tribunal's proceedings.
19. Fifthly, he says that since there were no adverse findings as regards Miss Peart's evidence, and since Mr Sappleton did not attend to give evidence, the Tribunal was bound to find in Miss Peart's favour in relation to those incidents where there was only her evidence to consider.
20. Sixthly, he criticises the approach of the Tribunal to the issue of pushing at the till. He says that the Tribunal erred in finding that Miss Peart was not subjected to a detriment and erred in the comparison it made.
21. On behalf of DSG, Mr Charles submits that in reality, even if it is not expressly said so the Tribunal must have preferred the evidence of DSG's witnesses and rejected the evidence of Miss Peart. He says that it follows inevitably from the Tribunal making no finding that a particular incident did occur that the Tribunal must have found that it did not occur. He submits that the Tribunal in referring to the absence of corroboration has in mind the fact that Miss Peart was alleging that corroboration did exist for some of her allegations. Since the Tribunal rejected the evidence of Miss Peart, though it had direct oral testimony to contradict it, he says the Tribunal made no error in rejecting it where it had only a witness statement from Mr Sappleton. The Tribunal was not bound to draw any inference from Mr Sappleton's non attendance. He says that by its decision the Employment Tribunal makes it clear implicitly that it concluded that Miss Peart was not a credible witness.
22. Mr Charles submits that Miss Gowdie's evidence was not corroborative of Miss Peart's. The Employment Tribunal was correct in regarding the evidence of Miss Gowdie as hearsay in relation to the issue whether the act actually occurred. He says the evidence of Miss Gowdie was not probative as to the issues. He says that the Tribunal did not err in law in finding that brushing past Miss Peart was no detriment, and did not err in law in finding there was no comparator.
23. We turn to our conclusions.

Finding the facts

24. In a case where there are disputed issues of fact relevant to the question whether there has been unlawful discrimination, a Tribunal will be charged with resolving the disputes and finding the primary facts. That was the duty of this Tribunal.
25. The Tribunal has repeatedly adopted the formula, "We can make no finding": (paragraphs 8, 9 and 14) or "we are therefore unable to make any finding." (paragraph 11) or "we cannot find that" (paragraph 18). This is an unsatisfactory formula for dealing with disputed allegations of fact, for more than one reason.
26. Firstly, it will generally be the duty of a Tribunal, faced with the decision as to whether a particular event occurred or not, to find as a fact whether it occurred. If there is evidence both ways, it can decide either way. Generally that is precisely what it should do. There will be rare occasions when the evidence is so finely balanced that the Tribunal is unable to make up its mind whether the event occurred or not. In that rare event, the Tribunal should say so, and the burden of proof will decide the issue.
27. Authority for these propositions will be found in Morris v London Iron and Steel Company Limited [1987] 2 ALL ER 496 at 500-501:

"A judge or tribunal of fact should make findings of fact in relation to a matter before it if they can. In most cases, although in some it may be difficult, they can do just that. Having made them, the tribunal is entitled to draw inferences from the findings of primary fact where appropriate. In the exceptional case, however, a judge conscientiously seeking to decide the matter before him may be forced to say, 'I just do not know': indeed, to say anything else might be in breach of his judicial duty. In this connection, however, I would say this. Speaking from my own experience, some people find it easier to make up their minds than others and it should not be thought that a swift reliance on where the burden of proof lies and a failure to decide issues of fact in the case ought in any way to be considered an easy or convenient refuge for anybody who does find it difficult to make up his mind in a particular case. Judges should, so far as is practicable and so far as it is in accordance with their conscientious duty, make findings of fact. It is the exceptional case that they may be forced to reach the conclusion that they do not know which side of the line the decision ought to be. In any event, where the ultimate decision can only be between two alternatives, for instance negligence or not, or, in the instant appeal, dismissal or resignation, then when all the evidence in the case has been called the judge or the tribunal should ask himself or itself whether, on the totality of the evidence, on the balance of probabilities, drawing whatever inferences may be thought to be appropriate, the alternative which it is necessary for the plaintiff to succeed is made out. If it is not, then the operation of the principle of the burden of proof comes into play and the plaintiff fails."

28. The second reason why the formula used by the Tribunal is unsatisfactory is that the use of a formula expressed in terms of "cannot" or "is unable to" may suggest that the Tribunal thought there was some legal bar to a particular result. There is no legal bar to the Tribunal believing one witness against another or against a number of other witnesses.
29. Thirdly, the parties at the end of a case are entitled to know why they have won or lost. The approach of the Tribunal is inimical to this. If the Tribunal concluded that Mr Sappleton, for example, did not bully or harass Miss Peart, the Tribunal should say so. They should also say whose evidence they did or did not believe, and why.
30. The manner in which the Tribunal expressed itself in this case is in the experience of this Appeal Tribunal unusual. Tribunals generally do find the facts one way or the other and give reasons for doing so. The approach of this Tribunal should not find its way into general usage.
31. If the Tribunal were intending to say that they found it impossible to make up their minds about the complaints, and that this was an exceptional case where they relied on the burden of proof, they should have said so. If they assessed the evidence of the witnesses, rejected the evidence of Miss Peart wholly or in part, and found that the allegations she was making were untrue, then again the Tribunal should have said so, and given succinct reasons for their conclusions. This was all the more so, when Mr Sappleton did not give evidence. There is in the Tribunal's Decision no reference to the fact that Mr Sappleton did not attend and give evidence in accordance with the witness order that was made against him. There is no reference to how they assessed the evidence given under oath by Miss Peart on the one hand as against the untested witness statement of Mr Sappleton and on the other.

Evidence and corroboration

32. The strict rules of evidence do not apply to an Employment Tribunal: see Rule 11 paragraph 1 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 and Rosedale Mouldings Ltd v Sibley [1980] ICR 816 at 821 - 822. Hearsay evidence is admissible. It is therefore not a conclusive argument for a party, or for the Tribunal, to say that a piece of evidence is hearsay. The value of a piece of hearsay evidence will vary enormously depending on the issues, the other available evidence, and all the circumstances. Some hearsay evidence is, on analysis, valueless. Other hearsay evidence may be of great value. These are matters of assessment for a Tribunal.
33. Even when the hearsay rule was applied in all its rigour by the common law, evidence of a complaint could be admitted in certain circumstances. For example, it might be relevant to the assessment of the credibility of the person making the complaint to know that the complaint had been made contemporaneously: the common law doctrine of recent complaint. It might be relevant to rebut an assertion that the evidence has been invented or made up after the event. In Tribunals no legal rules are required to define when evidence of a complaint may be supportive and relevant. The matter is one for the judgment and common-sense of the Tribunal.
34. Likewise there is no legal requirement in the Employment Tribunal for corroboration of any kind of evidence. Such a requirement has now been abolished even in the criminal courts. It is therefore not a conclusive argument for a party or the Tribunal, to say that the evidence for a fact is not corroborated. A Tribunal is of course entitled to say after it has assessed the evidence in the case that it finds the evidence of a particular witness so unsatisfactory or unreliable that it is not prepared to act on it unless there is other evidence to support it. A Tribunal which takes such an approach is simply exercising common sense and judgment, not imposing a legal requirement that there be corroboration.
35. In our judgment, in the light of these principles the manner in which the Tribunal treated the evidence of Miss Gowdie is wrong in principle. The Tribunal do not say whether they believed Miss Gowdie. They say only that her evidence was hearsay. If they believed Miss Gowdie then Miss Peart was making contemporaneous complaints of sexual harassment. That is relevant to an assessment of her credibility. If Miss Gowdie is telling the truth Miss Peart was repeatedly complaining at the time of the problem, she was having. That does not necessarily mean her complaints were true, but it is certainly relevant to an assessment of her credibility and can be regarded as supportive of her case. It is also relevant because a point made by DSG was that she did not complain at work contemporaneously. It is then relevant to bring into account in the Tribunal's assessment of the evidence the word of another DSG employee that Miss Peart was making contemporaneous complaints. In our judgment the Tribunal ought to have considered whether Miss Gowdie was telling the truth, and ought to have weighed her evidence in the balance.
36. Likewise the Tribunal's references to corroboration are unsatisfactory. They refer to the absence of corroboration for certain allegations and say that they are "therefore" (paragraph 11) or "for this reason" (paragraph 14) unable to make findings. The Tribunal might have concluded after an assessment of the evidence that Miss Peart's evidence was unreliable and untrustworthy, and that it could not be accepted in the absence of corroboration. But this is not what the Tribunal say. There is no assessment in the reasons of the extent to which they did or did not accept her evidence.

Conclusions

37. For the reasons we have given, the Employment Tribunal's decision is reasoned in a most unsatisfactory way. Moreover it has erred in law in the way in which it has approached the evidence of Miss Gowdie.
38. We do not think any useful purpose would be served in considering the specific argument put forward related to pushing past Miss Peart at the tills in any detail. Suffice it to say that whether there was that a detriment and whether the detriment was the result of unlawful sexual discrimination will depend on findings of fact which were unsatisfactorily made by this Tribunal. If the pushing past was an innocent touching, it might be open to the Tribunal to find that it was not a detriment and not discriminatory. We do not feel the need to express any concluded view on this. But if the Tribunal takes the view that it was part of a course of conduct of harassment, quite different considerations apply.
39. The question then arises whether this appeal which in our judgment must be allowed should be remitted to be reheard by the same Tribunal or by a different Tribunal. We have drawn the attention of the parties to the recent case of Sinclair Roche and Temperley & Others v Heard and Fellows [2004] IRLR 763 and in particular to the passage at paragraph 46 where the President of the Appeal Tribunal had set out relevant factors in such a consideration.
40. It is always of course, more proportionate in a sense of less expensive and more convenient to remit a case to the same Tribunal and a point that is made by Mr Charles on behalf of DSG is that to hold a fresh hearing would be disproportionate in this case. Such a hearing would be likely to last two or three days. This is not one of those discrimination cases which last weeks or months.
41. A further consideration is the passage of time. It will be by the time this matter returns to a Tribunal, a year since the matter was heard. In this case oral evidence is of critical importance. Documentary evidence is not of great significance. The passage of time of a year is therefore significant.
42. The question then arises of the extent to which the decision is flawed. The Tribunal's error goes to the whole of its Decision. This is not a case where one particular point has been the subject of an error of law. The whole decision will have to be re-considered. The Tribunal's reasoning is fundamentally flawed as we have sought to explain. We do not know to what extent, if at all, behind the scenes the Tribunal, a year ago, reached assessments, for example, of the evidence of Miss Gowdie and to what extent they made any assessment of Miss Peart.
43. It is therefore, by no means easy to send this case back to the same Tribunal. We would have before doing so, to be confident that with guidance the Tribunal would be able to look afresh at the evidence in the issues in the case after this period of time.
44. In all the circumstances we do not have that confidence. We think, regrettable though it is, this case must be remitted to a different Tribunal. The appeal will be allowed and the case will be remitted to a different Tribunal.