At the Tribunal | |
On 20 March 2007 | |
Before
HIS HONOUR JUDGE BIRTLES
SIR A GRAHAM KBE
MR D J JENKINS OBE
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR GARY HODKINSON Solicitor Citizens Advice Bureau Specialist Support Unit The Development Centre Coxwell Avenue Wolverhampton Science Park Wolverhampton WV10 9RT |
For the Respondent | MR TIM DONNELLY (Of Counsel) Instructed by: Messrs Blackett Hart & Pratt Solicitors Eldon Chambers 23 The Quayside Newcastle upon Tyne NE1 3DE |
Sexual harassment
ET failed to consider S.4A(1)(b) and (2) of Race Discrimination Act 1976. EAT held (1) ET had found all relevant facts in relation to sexual harassment claim (2) Kumchyk v Derby City Council [1978] ICR 116 did not apply as sexual harassment was not a new point. Case remitted to same Employment Tribunal to consider S.4A(1)(b) and (2) on the facts already found by it.
HIS HONOUR JUDGE BIRTLES
Judgment
Introduction
The Employment Tribunal Reasons: The Facts
"3 The respondent employs some 49 staff. It has an equal opportunities policy. At the time that Mr Love ceased to be its employee the respondent employed about 14 women. Mrs Love was employed from 7 July 2003 until 15 November 2005 when she resigned. When she first started work for the respondent she worked in the cleaning bay and then moved from there to work in the office in either, she says May 2005, or as Mr Brendan Alexander says, August 2005. Her job was to set up in the vans the equipment to be used for various jobs that the company was doing making sure that the right equipment was on a particular van going to a particular job. She was provided with a work sheet which was prepared by Mr Brendan Alexander for that purpose.
4 She came into contact, when she moved up to the office and towards the latter part of her employment, with Mr Paul Alexander. He is a Director of the company and a co-founder of the company with his brother Mr Eric Alexander. Mr Paul Alexander is described as a colourful character. It is accepted that he swears a lot. He uses profanities in everyday speech as most people would use adjectives. He uses bad language equally towards men and women. It is accepted that on at least three occasions Mr Alexander did use profanities in the presence of Mrs Love. The first one she complains about is on 1 June 2005. Mrs Love had agreed to ferry Mr Alexander and others to a Masonic meeting. She was being directed to the Masonic lodge by Mr Alexander but took the wrong turning and had to go twice round a roundabout. She says that she was called a 'stupid fucking cow' by Mr Alexander, he says that he did not use the word 'stupid cow' he did say something to the words of what's fucking happening here Jean (Mrs Love's forename)'.
5 The second occasion was on 26 October 2005. Some steps, which had been hired by the company had gone missing. They had been placed in an articulated lorry. Because of the continuing cost of hiring the steps Mr Paul Alexander had demanded to know where they were and enforced his query by swearing at Mrs Love. Again, Mrs Love says Mr Alexander called her a 'fucking stupid cow'. He denies that he said these words, although he does not deny swearing at her.
6 A further occasion Mrs Love gives is when she was asked to go to the cafe to get a pie for Mr Brendan Alexander. She had forgotten exactly what type of pie he wanted and so asked him which one he wanted. Mr Paul Alexander again swore at her and she says called her a 'stupid cow' using the other expletive that he always seems to use. Mr Alexander denies the use of stupid cow.
7 Mr Alexander says that there was a further incident in a car being driven by Mrs Love to a Masonic meeting. The other person in the car, who has not been called to give evidence, said referring to Mr Alexander 'he is a hard man to work for' and Mr Alexander's reply was 'you'd better fucking believe it'.
8 Mr Alexander, therefore, accepts that he did swear. He accepts that he swears constantly at everybody else who might be in the vicinity, it does not matter whether it is a man or woman.
9 Things came to a head on 15 November 2005. Mrs Love had, by agreement with the respondent, taken an employee to Bishop Auckland in her own car. She had then been due to return. She was expected to return to the office by about 9.00am. When she had not Mr Brendan Alexander telephoned her on her mobile phone. She told him that she was stuck in traffic. He became suspicious he could not hear any traffic noise. He asked her to sound her horn to prove that she was in the car. Mrs Love then admitted she was not in the car at all, she was at home. She then came into work. Mr Alexander said that he wanted to see her and, in the presence of Mr Brown, said that he was going to have a meeting with her later that day which was to be a disciplinary meeting, to determine what action should be taken. He was not given that opportunity to hold the meeting as Mrs Love then, verbally, resigned from her employment and left the respondent's offices.
10 Mr Love was asked for a letter of resignation. She brought the letter of resignation into the office on 18 November 2005, it is reproduced at page 57 of the bundle and it says:
"I am writing to you to tell you why I walked out on Wednesday, I thought you were looking for a reason to get rid of me. I thought you were going to sack me for lying to you so I thought I would get in first and walk out. I know I was stupid but there is nothing I can do about it now. I always thought that you thought I was inadequate to do the job I was doing. All I can say now is that I'm sorry as I really enjoyed working for you."
11 Mrs Love then, having taken advice, sent a letter of grievance which is at page 58 in which she raises the use of the word by Mr Paul Alexander of calling her a 'stupid fucking cow'. Nothing came of the grievance as there was no meeting arranged. Mrs Love did ask Mr Brendan Alexander, on one occasion, whether she could have her job back and had also, through another employee, asked for her job back."
Employment Tribunal Reasons: Submissions and Law
Employment Tribunal Reasons: Conclusions
18 Mr Paul Alexander uses profanities in his everyday language. The evidence is that he used such language in front of Mrs Love that he admits. He does not admit that he used the words 'stupid cow'. It is also accepted that he used such language in front of other employees of the company, and presumably, in his everyday life. He speaks that way to everybody that he comes across. Mr Alexander agrees that on the occasions stated in the facts he did use profanities whilst Mrs Love was present. We have to be satisfied that the use by Mr Alexander of profanities were directed at Mrs Love because of her gender and that she was treated differently and less favourably on account of her gender. We come to the conclusion that Mr Alexander would use those words in front of anybody who happened to be in his presence. We do not find as a fact that the word cow was used. Mrs Love has not shown on the balance of probability that word was used. We consider that Mrs Love has not shown the proof that is needed to found a claim of sex discrimination and we must dismiss her claim.
19 As far as the unfair dismissal is concerned, we have to find a fundamental breach of contract. It cannot, following our finding on sex discrimination, be the sex discrimination, which of itself, would be a fundamental breach of contract. There has to be something else. The letter of resignation pre-empting what Miss Love, thought was going to happen at the disciplinary hearing, that is, that she was going to be dismissed. It may have been that there was shouting and swearing but she does not mention so in her resignation letter. She was referring directly to the fact that she had told a lie, which she admits, that she was in traffic when she was actually at home .Mrs Love did ask on two occasions, for her job back. If it was such a fundamental breach and she could not work for this respondent any longer, it would seem strange that she applies for her job back on two occasions. We cannot find that there was a breach of contract and, therefore, dismiss that claim as well. The respondent was entitled to hold a disciplinary hearing on the admitted lie by Mrs Love,
The Notice of Appeal
Employment Appeal Tribunal Decision
Issue 1: Did the Employment Tribunal consider the Application of Section 4A(1)(b) of the Sex Discrimination Act 1975?
"[4A Harassment, including sexual harassment
(1) For the purposes of this Act, a person subjects a woman to harassment if-
(a) on the ground of her sex, he engages in unwanted conduct that has the purpose or effect-
(i) of violating her dignity, or
(ii) of creating an intimidating, hostile, degrading, humiliating or offensive environment for her,
(b) he engages in any form of unwanted verbal, non-verbal or physical conduct of a sexual nature that has the purpose or effect –
(i) of violating her dignity, or
(ii) of creating an intimidating, hostile, degrading, humiliating or offensive environment for her, or
(c) on the ground of the rejection of or submission to unwanted conduct of a kind mentioned in paragraph (a) or (b), he treats her less favourably than he would treat her had she not rejected, or submitted to, the conduct
(2) Conduct shall be regarded as having the effect mentioned in sub-paragraph (i) or (ii) of subsection (1)(a) or (b) only if, having regard to all the circumstances, including particular the perception of the woman, it should reasonably be considered as having that effect."
Issue 2: Were all relevant facts concerning sexual harassment before the Tribunal?
(1) That on at least three occasions starting with 1 June 2005 Mr Paul Alexander used profanities in the presence of the Appellant: Reasons paragraph 4: EAT Bundle Page 3;
(2) The second occasion was on 26 October 2005: Reasons paragraph 5: EAT Bundle Page 3;
(3) There was a third occasion that the Tribunal did not date when Mr Paul Alexander swore at the Appellant "using the other expletive that he always seems to use" ("fucking"): Reasons paragraphs 6: EAT Bundle page 3;
(4) There was a further occasion admitted by Mr Paul Alexander where profanities are used in the Appellant's presence but not directed at her: Reasons paragraph 7:EAT: Bundle page 3.
Issue 3: Was sexual harassment raised at the Employment Tribunal or is it a new point?
Conclusion