United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR G CLARKE (of Counsel) Instructed by: Equal Opportunities Commission Legal Services Arndale House Arndale Centre Manchester M4 3EQ
For the Respondent	MR P SALES QC and MS S MOORE (of Counsel) Instructed by: The Treasury Solicitor (Employment Team) Queen Anne's Chambers 28 Broadway London SW1H 9JS

SUMMARY

Sex Discrimination

A complaint of direct sex discrimination on the grounds of sexual harassment brought by a woman requires a male comparator, either actual or hypothetical. Furthermore, see decision of House of Lords in MacDonald v Advocate General for Scotland and Pearce v Governing Body of Mayfield Secondary School do not conflict with European law.


 


HIS HONOUR JUDGE BIRTLES

Introduction

1. This is an appeal from the decision of an Employment Tribunal sitting in Birmingham on 2-5 June, 4 July, 25 July, 29 July and 29 August 2003. The Extended Reasons were entered in the Register and sent to the parties on 21 October 2003. The Chairman was Mr A J McCarry and the members were Mrs S M McAllister and Mr W Smith.
2. The unanimous decision of the Tribunal was that:

(1) The first and second Respondents victimised the Applicant contrary to section 4 of the Sex Discrimination Act 1975 when the second Respondent completed the Applicant's annual appraisal in February 2002.

(2) The Applicant's remaining claims fail and they are dismissed.

(3) The parties were invited to explore the possibility of agreement on the Applicant's remedy but in default of agreement the case was relisted for a remedy hearing.

The Material Facts

3. The material facts found by the Employment Tribunal are extensive and set out in paragraphs 8-53 of the Employment Tribunal's decision. Suffice it to say that the Appellant served in the RAF from 12 January 1990 to 6 May 2003. From 11 January 1999 she worked at RAF Cosford where she was an acting Corporal in the RAF Military Police, known as "police flight". She was involved in gate duties, mobile patrols and emergencies, where she might be involved in obtaining and preparing statements and assisting in criminal incidents. As acting Corporal she was second in charge of her shift and when her supervisor was absent, she would supervise the shift herself. Sergeant Fitzpatrick, the second Respondent, supervised the Appellant, other Corporals and acting Corporals within Police Flight. Above him were a Flight Sergeant and the officer in charge of police at Cosford, Fl. Lt Daly.
4. There is no doubt whatsoever that Sergeant Fitzpatrick was known for inappropriate and offensive language. Leaving aside the merits of this decision, we are all appalled by the apparent failure of the appropriate RAF authorities to deal with the problems caused by Sergeant Fitzpatrick. The history recounted in the Employment Tribunal's decision reflects no credit on the service or on any officer involved in this affair.
5. On 9 February 2001 the Appellant attended a one-day continuation-training course conducted by Sergeant Fitzpatrick. It is quite clear that throughout that course Sergeant Fitzpatrick used a substantial number of offensive and obscene remarks which were directed at both the male and female personnel attending. The remarks are set out in paragraphs 10-13 of the Employment Tribunal's decision. The Tribunal specifically concluded that the Appellant "found the overall effect offensive and humiliating to her as a woman.": decision paragraph 13. The Appellant complained about Sergeant Fitzpatrick and much of the Employment Tribunal's findings of fact deal with the way in which her complaint was investigated. We have no hesitation in saying that the investigation was grossly inadequate and came nowhere near the standards of fairness that we would expect from an organisation such as the Royal Air Force.

The Employment Tribunal's Conclusions

6. The Employment Tribunal concluded, in respect of one matter, that the Appellant had been victimised contrary to section 4 of the Sex Discrimination Act 1975. That was in respect of Sergeant Fitzpatrick's completion of the Applicant's annual appraisal in February 2002. However, the Employment Tribunal also decided that the Appellant's other complaints of sex discrimination in relation to (i) Sergeant Fitzpatrick's offensive and humiliating language (ii) the inadequate investigation by the Respondent could not be decided in her favour as she had not been discriminated against on account of her sex because it could not be said that "but for her sex" the Appellant would not have suffered the treatment complained of or been treated any differently. The Tribunal decided that the Appellant suffered the exposure to the language of the Sergeant at the training course not because of her gender but because, like others of both genders, she had the misfortune of being required to attend the training course: decision paragraph 60. Furthermore, there was no basis on which it could be concluded or inferred that the inadequate investigation of the Appellant's complaint of sex discrimination was because of her gender, or that a male complainant in similar circumstances would have been dealt with more favourably: decision paragraph 68. Finally the Employment Tribunal dismissed the Appellant's complaint that there was sex discrimination in the failure to carry out any assessment to the risk to her health arising out of her being exposed to Sergeant Fitzpatrick's language: decision paragraph 73.

The Notice of Appeal

7. The Notice of Appeal raises 12 separate grounds of appeal. We are grateful to Mr Gerard Clarke who appeared for the Appellant and to Mr Philip Sales and Ms Sarah Moore, who appeared for the Respondent, for their Skeleton Arguments and oral submissions. We will deal with each of the grounds of appeal in the order in which they were argued before us.

Ground 1: burden of proof

8. Mr Clarke submits that the Employment Tribunal erred in law by failing properly to apply the burden of proof established by section 63A of the Sex Discrimination Act 1975 and the guidance of this Tribunal in Barton v Investec [2003] IRLR 332 (Judge Ansell), as modified by Chamberlin Solicitors & Another v Ms I Emokpae (unreported) EAT/0989/03/DM (Judge McMullen QC). Specifically, that in the light of the Tribunal's findings (a) the Appellant was offended as a woman by the second Respondent's conduct and (b) that women were more likely to be offended by that conduct than men, the Tribunal should have found that the burden was on the Respondents to prove that they had not discriminated against the Appellant and that the Respondents had not in fact discharged that burden.
9. Mr Sales argued that there was no failure to apply section 63A. In order to find that the Respondent had discriminated against the Appellant it would have been necessary for the Tribunal to hold that the Appellant had been treated differently and less favourably on account of her sex. The fact that the Appellant was offended by the Sergeant's language was not a basis upon which such a different of treatment could be inferred because the finding says nothing about the treatment meted out to the Appellant by the Respondents, still less about how that treatment compared to that meted out to a man in similar circumstances. He relied upon the decision of the House of Lords in MacDonald v Advocate General for Scotland and Pearce v Governing Body of Mayfield Secondary School [2003] IRLR 512, and particular the remarks by Lord Nicholls at paragraph 29; Lord Hope at paragraph 94; Lord Scott at paragraph 117 and Lord Rodger at paragraphs 191 and 194.
10. Mr Sales also argued that even if such a finding was to be regarded as evidence of such a kind as to fall within section 63A (2) (a) of the Sex Discrimination Act 1975, the Employment Tribunal was satisfied as a matter of fact that the Respondents had proved that they had not discriminated against the Appellant on account of her sex and that in fact she had been treated in exactly the same way as all attendees – both male and female – on the training course: decision paragraph 60. Furthermore, he argued that the Tribunal's remark that women would be more likely to be offended by the second Respondent's conduct than would men was obiter. There was no evidence to support such a proposition. The only other woman who attended the course (Corporal Donnelly) was not offended by the language and found it "funny", whereas there was evidence that some male attendees of the course were offended by, or at least dissatisfied with, the language used: decision paragraphs 13 and 24.4. In the event that went to indirect discrimination under section 1 (1) (b) of the Sex Discrimination Act 1975 which was not pleaded or argued in this case.

The Employment Appeal Tribunal Decision

11. We agree with Mr Sales' submission. In our judgment, what the House of Lords said in the MacDonald and Pearce cases at the paragraphs cited above is crystal clear: in all cases of sex discrimination, including sexual harassment, a male comparator, whether actual or hypothetical, is required. It is sufficient to quote from the judgment of Lord Hope at paragraph 94 when he said that:

"94. There is no escape, then, from the need to resort to a comparison. The words "less favourable treatment" in section 1(1)(a) render this inevitable."

12. At paragraph 60 of their decision, the Tribunal, having noted Lord Hope's remark, came to the following conclusions as regards the language used at the training session:

"60 …Sgt Fitzpatrick's conduct was not directed towards the applicant, nor even towards females generally, and that she was not selected, singled out or treated differently in any way. Sgt Fitzpatrick's conduct, undoubtedly, was an exhibition of thoroughly unsavoury behaviour but it was unaffected by the gender mix of those present and was indiscriminately bad and insensitive of the feelings of anyone, of either gender, who might be present and object. Adopting Lord Nicholl's advice to consider the reason for the treatment, it was not because Cpl Brumfitt is female; she suffered the treatment, with others of both genders because, like them, she had had the misfortune of being required to attend the training. It cannot be said that 'but for' her sex she would not have suffered the treatment or have been treated any differently…"

13. At paragraphs 68-69 of their decision the Employment Tribunal came to the following conclusions in respect of the first Respondent's investigation of the Appellant's complaint of sex discrimination:

"68 … We cannot regard [Reed and Bull Information Systems Ltd v Stedman [1999] IRLR 299] as authority for the proposition that a failure to adequately investigate a complaint of sex discrimination is necessarily sex discrimination in itself. It may be this will be proved on the facts of an individual case but that will depend upon whether the failure amounted to less favourable treatment than an actual or hypothetical male comparator and the grounds for the different treatment being the complainant's sex.

69. We must also consider whether section 63A of the Act assists Cpl Brumfitt in establishing that there was such a difference in treatment of her in this case. Regrettably, because it must be apparent by now that we have the greatest of sympathy with the applicant, we have searched in vain for grounds upon which we could conclude or infer that at some stage of the investigation, from PI. Lt Daly's appointment to investigate, through to its outcome and on to the obstruction in processing the matter to a higher authority, any of the shortcomings listed by the applicant in her consolidated grounds of complaint arose on the grounds of the applicant's gender or that a male complainant in similar circumstances would have been dealt with more favourably…"

In our judgment the decision of the Employment Tribunal is correct in law.

Grounds 2 & 3: gender-specific offensive conduct satisfying the comparator test

14. These two grounds are run together. Ground 2 is that the Tribunal erred in law by failing to hold that, on the facts as found by it, the Appellant was treated unfavourably on the grounds of her sex in being offended as a woman by conduct insulting to her dignity and diminishing her position in the workplace. Ground 3 is that the Tribunal erred in law by failing to find that this case fell within the category of cases described in Pearce and MacDonald, supra.
15. Mr Clarke submits that the gender-specific nature of the second Respondent's misconduct was inherently more offensive to women than to men and was such that the Tribunal ought to have inferred that the misconduct occurred on the grounds of the Appellant's sex. In particular, Mr Clarke relied upon cases prior to the Pearce and MacDonald cases: Strathclyde Regional Council v Porcelli [1986] IRLR 134; British Telecommunications plc v Williams [1997] IRLR 668 and Reed & Another v Stedman [1999] IRLR 299. Mr Clarke submitted that the Pearce and MacDonald cases did not change that line of authority because they did not concern discrimination by men against women: they were cases about sexual orientation discrimination. Thus, what was said about the concept of sexual harassment and sex discrimination cases was obiter. In particular, he relied upon the following passages: Lord Nicholls at paragraphs 16-17; Lord Hope at paragraphs 91-94 and Lord Rodger at paragraph 194. He also prayed in aid the fact that the relevant events in this case took place after the Human Rights Act 1998 came into force, unlike the fact situations in the Pearce and MacDonald cases.
16. Mr Sales submitted that Ground 2 was misconceived because it failed to consider the treatment to which the Appellant was subjected but considered only the effects on her of that treatment, and it also failed to compare the treatment to which the Appellant was subjected with the treatment to which an appropriate comparator was or would have been subjected. As far as Ground 3 is concerned, Mr Sales submits that Mr Clarke has misconstrued or misunderstood the passages in the judgments of Lord Nicholls and Lord Hope upon which he relies.

The Employment Appeal Tribunal Decision

17. We agree with Mr Sales. As we have already indicated, our reading of the decision of the House of Lords in Pearce and MacDonald requires a comparator in cases of direct discrimination. Furthermore, Mr Clarke's submission flies in the face of the specific finding of the Employment Tribunal that the language used by the second Respondent was not gender specific: decision paragraphs 12, 59-60. Neither do we find that Driskel v Peninsula Business Services Ltd [2000] IRLR 151 assists the Appellant. In our judgment this case is not authority for the proposition that sexual words spoken in her presence amounted to discrimination to her on the grounds of sex because the Appellant found that the conduct was offensive as a woman. The Employment Tribunal correctly pointed out Driskel is a case which involved treatment which was never doubted as treatment of a kind which would not have been afforded to a man: Driskel paragraph 14; Employment Tribunal decision paragraph 64. So far as there is any conflict between Driskel and Pearce and MacDonald we prefer and must follow Pearce and MacDonald and especially the judgments of Lord Hope at paragraph 93 and Lord Rodger at paragraphs 193-194.
18. In our judgment the relevant questions in any claim of direct discrimination are (i) has the complainant been treated less favourably than the comparator with whom she falls to be compared and (ii) has she been so treated on the grounds of her sex. The fact that a man uses offensive words of a sexual nature in conversation with a woman does not constitute discrimination unless it can be shown or inferred that this was less-favourable treatment than the man would have meted out to another man in a comparable situation. In this case the Tribunal addressed these questions correctly and came to the unequivocal conclusion on the facts that the Appellant had not been treated less favourably than any male who attended the course: decision paragraph 60.

Ground 4

19. Mr Clarke submits that the Tribunal erred in law by failing to hold the facts as found met the definition of sexual harassment under European Union law. In particular, it failed to have sufficient regard to the amending Directive 2002/73/EC which consolidated and redefined existing principles of EU law. It also ignored the European Commission's Code of Practice 92/131/EEC which refers to unwanted conduct of a sexual nature which affects the dignity of a woman at work. That definition includes unwelcome physical, verbal or non-verbal conduct.
20. Mr Sales submits that the Tribunal in fact made no findings on this issue but simply pointed out that the member states are not required to give effect to Directive 2002/73/EC until October 2005 and that the United Kingdom has not yet done so: decision paragraph 61. He also made submissions upon whether or not the Directive "consolidates" or "codifies" existing principles of EU law or whether it makes a substantive change in the law.

Employment Appeal Tribunal Decision

21. In our judgment the Employment Tribunal correctly stated that member states are not required to give effect to Directive 2002/73/EC until October 2005 and that the United Kingdom had not yet done so. Furthermore, we accept Mr Sale's submission that the Directive did not merely consolidate or codify existing principles of EU law but change them by introducing a definition of sexual harassment which did not require a comparator. We reject Mr Clarke's submission that sexual harassment, as defined in that instrument, can already form the subject of a complaint under the Equal Treatment Directive. The title of Directive 2002/73/EC describes it as "amending" the Equal Treatment Directive. Furthermore, Article 1 (2) (3) of the Directive provides that:

"3. Harassment and sexual harassment within the meaning of this Directive shall be deemed to be discrimination on the grounds of sex and therefore prohibited. A person's rejection of, or submission to, such conduct may not be used as a basis for a decision affecting that person."

22. See also Article 1 (2) (4). In our judgment if it was considered that harassment and sexual harassment as defined by the Directive was simply a form of discrimination on grounds of sex that already fell within the scope of the Equal Treatment Directive then it would have been unnecessary to deem it to be so.

Grounds 5-8: Reference to the European Court of Justice

23. Mr Clarke submits that if we agree with his earlier submissions then for a number of reasons there is a conflict between United Kingdom law and European Union law, and a question arises as to how the Sex Discrimination Act 1975 should be interpreted in line with the Equal Treatment Directive in the context of sexual harassment and he helpfully sets out in ground 8 of his Notice of Appeal the question he invites us to refer to the European Court of Justice.
24. Mr Sales submits that there is no justification for making a reference to the European Court of Justice for the following reasons:

(a) the House of Lords in the MacDonald and Pearce cases was correct in interpreting United Kingdom law;

(b) that there is no conflict between United Kingdom law and European Union law, i.e. between MacDonald and Pearce and the current state of European Union law prior to the implementation of Directive 2002/73/EC in October 2005;

(c) if there was any question of a conflict it would have been raised by one of the 10 experienced Counsel who appeared before the House of Lords in the MacDonald and Pearce cases.

Employment Appeal Tribunal Decision

25. We agree with Mr Sales. In our judgment it is quite clear reading the decision of the House of Lords in the MacDonald and Pearce cases that their Lordships unanimously required a comparator in cases of direct sex discrimination including cases of sexual harassment. It is wrong to say that the cases only concerned the question of sexual orientation. Furthermore, it is quite clear that a close reading of the judgments shows that their Lordships had the current state of European law in mind: see the judgments of Lord Nicholls at paragraph 20 and Lord Rodger at paragraph 182. In our judgment the issue is acte claire. There is no need at all for a reference to the European Court of Justice.

Ground 9: Human Rights Act 1998

26. Mr Clarke submits that the Employment Tribunal failed to interpret the Sex Discrimination Act 1975 so as to protect the Appellant from degrading treatment under Article 3, her right to a private life under Article 8 and her right to be protected from discrimination in enjoyment of her Article 3 and Article 8 rights under Article 14. He elaborates those arguments in his admirable Skeleton Argument. Mr Clarke submits that there is no pressing social need which can justify such conduct or setting a legal test for sexual harassment which does not concentrate on the effect of the conduct impugned upon the person complaining of such conduct. Finally, there can be no justification for failing properly to investigate the Appellant's complaint.
27. Mr Sales submits that there is no breach of the Appellant's Convention rights for the reasons set out in his Skeleton Argument.

Employment Appeal Tribunal Decision

28. Article 3 provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment. It prohibits conduct which has serious physical or psychological effects on the individual concerned: see e.g. Pretty v UK [2002] 2 FCR 97, para. 52. It clearly has no application in the present case.
29. Article 8 provides that everyone has the right to respect for his private and family life, his home and his correspondence. In X v Y v Netherlands (1986) 8 EHRR 235 the European Court of Human Rights stated at para. 23 the "object of Article 8 is essentially that of protecting the individual against arbitrary interference by public authorities". Furthermore, the case-law establishes that in order to be capable of constituting an infringement of Article 8 the treatment complained of must entail such adverse effects on physical or moral integrity as to constitute an interference with the applicant's right to respect for private life.
30. In our judgment the circumstances of the present case do not fall within the scope of Article 8.
31. In this respect the Appellant refers to the cases of Bosta v Italy (1998) 26 EHRR 241 and Osman v UK (1998) 29 EHRR 245. Bosta concerns the rights of disabled people to have access to leisure facilities and in which the European Court of Human Rights stated that:

"private life...includes a person's physical and psychological integrity; the guarantee afforded by Article 8 is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings."

32. However this statement of principle has no application to the present facts. The Appellant's physical and psychological integrity has not been infringed, nor has there been any outside interference with the development of her personality in her relations with other people.
33. As to Osman v UK, this was a claim by the applicant in respect of the shooting at their home of her husband and son by a pupil at her son's school. The only aspect of the case which concerned Article 8 was the rejection by the European Court of Human Rights of an allegation that there had been a breach by the authorities of their duty under Article 8 to secure the physical integrity of Mr Osman (para. 128). This judgment has no relevance at all to the facts of the present appeal.
34. As to the Appellant's reliance on Article 14, it is well established that Article 14 has no independent existence; it applies only to cases within the ambit of another Convention right. The Appellant has referred to Article 14 but has not shown how that provision is relevant in the present case. If the Appellant's rights neither under Article 3 nor under Article 8 are engaged and the treatment was not within their ambit, it does not help the Appellant to rely on Article 14.
35. In any event, even if the Appellant's rights under those Convention articles (or one of them) were engaged, Article 14 would only assist the Appellant's case insofar as she were able to establish discrimination of a kind prohibited by that Article in respect of the exercise of those rights. In this case the Appellant alleges that that she has been subjected to direct sex discrimination. However, the difficulty with such an argument is that the tribunal has found as a fact that she was not discriminated against on grounds of her sex.

Grounds 10-12: the handling of the complaint

36. Finally, Mr Clarke submits that because the Employment Tribunal were severely critical of the first Respondent's handling of the Appellant's complaint the Tribunal should have found that the inadequate investigation conducted by the first Respondent amounted to direct sex discrimination and ultimately to her decision to leave the RAF. Mr Clarke relies upon Reed and Another v Stedman [1999] IRLR 299 and especially at paragraphs 12 and 18-19 per Morison J. He seeks to distinguish the decision of the Court of Appeal in Home Office v Coyne [2000] IRLR 838 as not consistent with European law and the Human Rights Act 1998.
37. Mr Sales submits that the Employment Tribunal were correct to follow Home Office v Coyne, supra, and to hold that Reed and Another v Stedman, supra, was not authority for the proposition that a failure adequately to investigate a complaint of sex discrimination is necessarily sex discrimination in itself. Mr Sales submits that this interpretation does not fail to give effective protection to the Appellant's Human Rights Act 1998 rights.

Employment Appeal Tribunal Decision

38. We are bound to apply Home Office v Coyne [2000] IRLR 838. In our judgment the Employment Tribunal were also right to do so. Furthermore, in our judgment the Employment Tribunal's reasoning in rejecting Mr Clarke's submission on Reed and Another v Stedman [1999] IRLR 299 was correct for the reasons it gave: decision paragraph 68. As Lord Hope remarked in the MacDonald and Pearce cases at paragraph 94:

"94. There is no escape, then, from the need to resort to a comparison. The words "less favourable treatment" in section 1(1)(a) render this inevitable."

The Employment Tribunal were correct in saying that applied with the same force to the circumstances in which an inadequate investigation of a complaint of sex discrimination may fall within the scope of the Sex Discrimination Act 1975.

39. We also agree with Mr Sale's submission that this interpretation does not fail to give effective protection to the Appellant's European Community or Human Rights Act 1998 rights. The Sex Discrimination Act 1975 gives the Appellant an effective remedy in respect of any discrimination she has suffered on the grounds of her sex within the scope of the Equal Treatment Directive. The Equal Treatment Directive does not confer on the Appellant the right to have her employer investigate a complaint of sex discrimination. Even less does it deem any failings in respect of such an investigation to amount to discrimination. All of the usual requirements of a direct sex discrimination claim have to be satisfied. There is nothing to prevent an Applicant bringing a claim for direct sex discrimination in respect of an investigation providing the normal requirements of the law are satisfied. There is therefore no inadequate protection.
40. In our judgment neither is there any infringement of the Appellant's Convention rights. Inadequate investigation of the Appellant's complaint of sex discrimination which does not of itself amount to sex discrimination is not capable of amounting to a breach of Articles 3 or 8. It cannot amount to a breach of Article 14 because that Article is not engaged.

Conclusion

41. For these reasons this appeal is dismissed.