United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	EDWARD LEGARD (of counsel) Instructed by: Crutes LLP Great North House Sandyford Road Newcastle upon Tyne NE1 8ND
For the Respondent	(The Respondent in Person)


 


SUMMARY

SEX DISCRIMINATION – Inferring discrimination

PRACTICE AND PROCEDURE – Restricted Reporting Order

Claimant summarily dismissed, without any kind of process, on the basis of an allegation that he had raped a colleague – Dismissal without due process held by the Tribunal to constitute sex discrimination on the basis that the employer had feared that if Claimant were not dismissed summarily he might commit violence towards the complainant or others; and that that fear was on the ground of his sex.

Held that there was no sufficient basis in the evidence for the inference of discrimination – Observations about the drawing of inferences

Held also that parties entitled to anonymisation in order to protect the complainant's confidentiality – X v Commissioner of Metropolitan Police [2003] ICR 1031 followed.


 


THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)

INTRODUCTION

1. This is an unusual case, the facts of which are, whichever party's account is accepted, disturbing. They can be summarised in bare outline as follows:

(1) The Claimant (referred to in the Tribunal as "A") was an Assistant Director in one of the Departments of a local authority ("B"). For reasons which will appear, we do not identify the authority and refer to it simply as "the Council".

(2) On 3 July 2007 the Director of a different Department ("X") came to the Chief Executive of the Council ("C") in great distress and told him that some six weeks previously she had been the victim of a violent rape by the Claimant. She said that this was the culmination of a series of incidents of sexual harassment. C and X had been colleagues for some time, and he knew her well: he at once believed her account. She told him that she had not at that stage said anything to the police, and she made it plain that she was not prepared to make any formal complaint; but he persuaded her to permit him to speak to the police informally in order to seek advice.

(3) On 12 July a meeting occurred, arranged by C at his home, between X and a police Sexual Offences Liaison Officer ("J") to whom X gave a fuller account of the alleged rape. J found her account credible and convincing. The following day J's senior officer ("H") told C that J was convinced of the truth of the allegation and that there was reasonable ground to arrest the Claimant on suspicion of rape.

(4) Over the following fortnight C carried out some (limited) further enquiries. By 26 July he had decided that he wanted to dismiss the Claimant as soon as possible. He saw solicitors that day. They advised him that he had a sufficient basis to suspend the Claimant and institute the Council's disciplinary procedure. But they also apparently advised him that, if he believed X, he could dismiss the Claimant forthwith, for gross misconduct. C did not involve his own HR Department in any way.

(5) On 30 July C went to the Claimant's office, without prior notice, and told him that he was being summarily dismissed for reasons set out in a letter (drafted by the solicitors) which he handed him and whose terms he said he was not prepared to discuss. The letter read as follows:

"In the circumstances set out below, you are notified by this letter that your employment with the Council is terminated with immediate effect on the grounds of gross misconduct and gross breach of trust and confidence.

I do not intend to have any discussion at all with you about the matters giving rise to this decision and set out below the reasons for this.

You will appreciate that I have not followed the usual process in relation to disciplinary allegations relating to staff. I take this course on the basis of specific legal advice.

The reason for your immediate dismissal is that I believe that you have, in all probability, raped and sexually, physically and mentally assaulted, harassed and abused [X].

My belief is based upon recent discussions that I have had with [X] who has advised me of your actions and behaviour towards her since January of this year. I have had several meetings with [X] during which she has advised me of a specific incident of rape, another specific incident of physical assault and abuse and repeated incidents of serious harassment and abuse. These matters are clearly of the utmost seriousness.

[X] has also spoken to the police who have indicated to me that her story is entirely credible.

In most potential disciplinary situations, I would envisage offering the alleged perpetrator a hearing to respond to allegations and provide his/her account before reaching any decision.

Were I to follow that course in this matter, I would expect you to categorically deny the allegations. The decision I would have to make would be whether or not to believe [X].

I say without hesitation that I accept what [X] has told me, as I believe do the police.

In the circumstances, I consider that the only action to me is instant dismissal on the grounds of gross misconduct and gross breach of trust as stated above.

Your last day of employment is therefore today's date, 30 July 2007.

I will contact you further in relation to collection of remaining personal belongings and other such matters in due course.

Please note that in view of the probable involvement of the police, I intend to issue an instruction to staff not to speak to you under any circumstances and any further communication which you wish to have with the Council should be made to me."

(6) Thus the Claimant was summarily dismissed, by C acting on his own, for offences of the utmost gravity without any notice whatever of the allegations against him and without any opportunity to answer X's accusations – being told, indeed, that nothing he could say would be believed anyway. This is shocking; and we find it very surprising that C should have been advised, if indeed he was, that it was a proper way to proceed. We understand, in human terms, C's sympathy for X; and indeed it does him credit. But he ought to have realised that he could not fairly act both as her confidant and supporter and as an impartial adjudicator. But, as will appear, the fairness of the Claimant's dismissal is not the issue on this appeal.

(7) Since the Council's disciplinary procedure was not applied, the Claimant was not accorded any right of appeal. On 19 September, however, he lodged a grievance complaining of his treatment. He was denied any meeting and the grievance was responded to in writing.

(8) Immediately following his dismissal the Claimant was arrested and interviewed by the police under caution. However, in November 2007 he was notified that no further action would be taken because there was insufficient evidence to substantiate any charges. It can reasonably be inferred that, as she had already made clear, X was not prepared to make any formal complaint.

2. The Claimant brought proceedings in the Employment Tribunal claiming not only for unfair and wrongful dismissal but also that his dismissal constituted discrimination by C (who was named as second respondent to the proceedings) on the grounds of his sex, and that the Council was liable for C's action. (There was also a claim for holiday pay, but that was subsequently withdrawn.)
3. Those claims were heard over six days by an Employment Tribunal sitting in Newcastle-upon-Tyne chaired by Employment Judge Morris. An important preliminary issue was whether the Claimant had at the date of his dismissal been employed for the qualifying period prescribed by s. 108 of the Employment Rights Act 1996: although he had worked for the Council since June 2005, his services were initially provided through an agency, and there was an issue as to when his employment transferred to the Council. The Tribunal found against him on that issue, with the consequence that it held that it had no jurisdiction to entertain the claim of unfair dismissal. As for the remaining claims:

(1) The determinative question for the purpose of the claim of wrongful dismissal was whether the Claimant had committed the gross misconduct alleged against him, i.e. – in practice – whether he had raped X. (There were also, as we have said, allegations of acts of harassment of X in the period prior to the alleged rape; but these were inherently less serious and in practice stood or fell with the primary allegation.) That issue had to be decided by the Tribunal on the civil standard of proof, with the burden of proof being on the Council. X did not give evidence before the Tribunal, either orally or in writing. Thus the only evidence of the rape was the hearsay evidence of C and J as to what X had told them. The Claimant gave evidence and denied that anything of the kind had happened. The Tribunal, which approached this delicate issue with great care and an evident appreciation of the unsatisfactory nature of the exercise, was not prepared to find either that X had been raped at all or that, if she had been, the Claimant was the perpetrator. Accordingly the claim for wrongful dismissal succeeded.

(2) The Tribunal upheld the complaint that the Claimant's dismissal constituted direct discrimination by C; and that the Council was liable for C's action under s. 41 of the Sex Discrimination Act 1975. We will have to consider its detailed reasoning below, but in essence it was that in the case of a female employee in the same circumstances C would not have proceeded to an instant dismissal but would have suspended her and conducted a proper investigation through the Council's disciplinary procedures.

4. The Council and C appeal against the finding of sex discrimination. There is no appeal against the finding of wrongful dismissal; nor is there any cross-appeal against the Tribunal's decision that it had no jurisdiction to entertain the claim of unfair dismissal.
5. It will against that background be apparent why the Tribunal thought it right to anonymise the names of the parties and of X and, as it did, to exclude from its Reasons any details likely to facilitate their identification. The parties have submitted to us that we should follow the same course in this judgment, and we have agreed to do so. However, the basis of our jurisdiction is not straightforward, and we deal with the matter more fully at paras. 28-33 below.
6. Both before the Tribunal and before us the Claimant appeared in person, and the Appellants were represented by Mr Edward Legard of counsel.
7. We should add that a remedy hearing was conducted in January 2009 and that by a reserved judgment sent to the parties on 5 March 2009 the Claimant was awarded damages for wrongful dismissal in the sum of £25,000 and compensation for sex discrimination in the sum of £16,385.75. The latter sum was entirely for injury to feelings, the Tribunal concluding that even if due process had been followed the Claimant would have been dismissed. That conclusion was not on the basis that the Council would have been satisfied that he was guilty of the misconduct charged, but on the basis that the working relationship between the parties had broken down irretrievably. The Claimant has appealed against that decision but the appeal is stayed pending the outcome of the present appeal.

THE LAW

8. The Claimant's complaint was of discrimination falling within the terms of s. 1 (2) (a) of the 1975 Act, which provides that:

"… [A] person discriminates against a woman if … on the ground of her sex, he treats her less favourably than he treats or would treat a man …".

S. 2 (1) provides that s. 1 is "to be read as applying equally to the treatment of men". S. 5 (3) provides as follows:

"A comparison of the cases of persons of different sex … under s. 1 (2) … must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."

9. Acts of discrimination in the employment field are rendered unlawful by the provisions of Part 2 of the Act. The section relied on by the Claimant in the present case is s. 6 (2), which provides (so far as material) as follows:

"It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her –

(a) …

(b) by dismissing her, or subjecting her to any other detriment."

10. S. 63A (2) of the 1975 Act provides as follows (so far as material):

"Where, on the hearing of [a] complaint [under the Act], the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent –

(a) has committed an act of discrimination … against the complainant which is unlawful by virtue of Part II … , or

(b) …

the tribunal shall uphold the complaint unless the respondent proves that he did not commit … that act."

That section and the cognate provision of the Race Relations Act 1976 have attracted a great deal of judicial exposition. We need not, however, for the purposes of this appeal summarise the effect of the well-known decisions of the Court of Appeal in Igen Ltd. v Wong [2005] ICR 931 and Madarassy v Nomura International Plc [2007] ICR 867.

THE TRIBUNAL'S REASONING

11. It is necessary to set out the entirety of the Tribunal's reasoning on the issue of sex discrimination, which appears at paras. 44-56 of its Reasons, as follows:

"44 Turning to the complaint of sex discrimination, there were three essential questions for the Tribunal to answer, which are addressed in turn below.

Less favourable treatment?

45 The first question for the Tribunal was whether the claimant had been treated less favourably than a real or hypothetical comparator. The Tribunal considered that a hypothetical comparator in this case would be a female, relatively senior, officer of the first respondent who had allegedly committed a violent sexual assault on a male officer of higher status than she, which male officer held a post within the senior management team of the first respondent. The Tribunal was satisfied that this comparison complied with section 5(3) of the 1975 Act that "the relevant circumstances in the one case are the same, or not materially different, in the other". In this connection the Tribunal also had regard to the Judgment in Kettle (in which the EAT applied the principles enunciated in Macdonald v Ministry of Defence [2003] ICR 937 ("… the manager's treatment of the women is compared with his treatment of the men on his staff and is found to be less favourable") and in The Home Office v Saunders UK EAT/0260/05 and was satisfied that this hypothetical comparator accorded with the guidance in those Judgments.

46 The Tribunal was satisfied that if the roles and genders had been reversed in this fashion, the second respondent would have allied himself to his male colleague member of his senior management team and, therefore, having inclined against the female aggressor. To that extent, therefore, there would not have been any difference in treatment between the comparator and the claimant.

47 The Tribunal was satisfied, however, that if the aggressor, in similar facts or circumstances, had been a female and the victim a male, the second respondent would not have had the concern (that he said he had with regard to the claimant) that following the first respondent's procedure regarding suspension, investigation etc could well have had disastrous consequences for the male victim and put him and other staff at risk from someone who was violent and might "possibly attack another victim or victims". The Tribunal was satisfied that the reason why the second respondent would not have had an equivalent concern to that which he said he had with regard to the claimant was because the hypothetical comparator was a female aggressor and, further, that he had that concern about the claimant because the claimant was a man. The Tribunal was satisfied that not having that concern about a female aggressor, the second respondent would have suspended her and otherwise dealt with her in accordance with the first respondent's disciplinary procedure including as to such matters as suspension, investigation, hearing and appeal.

48 It was the difference of approach, which we found would have been adopted by the second respondent in the case of a female aggressor, from which we drew the inference that the decision of the second respondent not to comply with the first respondent's contractual procedure was taken because the claimant was male rather than female. Thus, by reference to the decision in Fire Brigades Union, the behaviour and the judgment of the second respondent was because of the claimant's gender as compared with that of the hypothetical comparator (i.e. he was male rather than female) and not simply because of the claimant's alleged conduct.

49 The Tribunal was therefore satisfied that if the roles and genders had been reversed as described in paragraph 45 above, the second respondent would (either directly himself or through having brought in an independent adviser at this early stage) have dealt with matters in a way that would have lead to the female aggressor being dealt with more fairly in accordance with the procedures of the first respondent.

50 For completeness, the Tribunal records that it did consider whether, in the light of the Judgment in Kettle, it should also reverse the gender of the first respondent's Chief Executive (i.e. the second respondent) but considered that it was unnecessary to add that further reversal to the hypothetical situation. It nevertheless did address such a situation and was satisfied that had it taken that further step of deeming the second respondent to be female it would not have made any difference to its conclusion. That is because the Tribunal is satisfied that such a female Chief Executive would have allied herself to her male colleague but would nevertheless have ensured that the female aggressor was dealt with in accordance with due process.

51 In conclusion on this first point, therefore, by reference to section 1(1)(a) of the 1975 Act, the Tribunal was satisfied that the claimant had been treated less favourably than the hypothetical comparator.

Possibly on grounds of sex?

52 The second question for the Tribunal was to consider, in accordance with what the Court of Appeal in the leading case of Igen referred to as the first stage of the process to be undergone with regard to section 63A of the 1975 Act. That is to say, in the light of the Judgment in Madarassy, whether the Tribunal acting reasonably "could properly conclude" from the evidence before it (being the evidence produced by the claimant and that produced by the respondents but, for now, "in the absence of an adequate explanation") that the respondents had committed an act of discrimination against the claimant that was unlawful by virtue of Part II of the 1975 Act.

53 Having considered all the relevant evidence before us including those factors identified in Madarassy and having regard to the guidance in Igen, the Tribunal was unanimous in finding that the complainant had proved such facts. It was not merely that he was a man and he had been dismissed without due process. On the contrary, we were satisfied from the evidence produced by the claimant and also the contesting evidence produced by the respondents and the inferences that we could properly draw from the primary facts that the claimant had proved such facts; not least that as explained above, if the aggressor had been a woman she would not have been summarily dismissed without appropriate procedures having been complied with, especially regarding a full investigation of the allegations and a proper consideration of her responses.

54 As such, the burden of proof in connection with the claim of sex discrimination passed from the claimant to the respondent in accordance with section 63A of the 1975 Act.

Not on grounds of sex?

55 The Tribunal therefore turned to the third question, referred to in Igen as the second stage of the process to be undergone with regard to section 63A, and considered whether the respondents had proved that in no sense whatsoever had they committed the acts of discrimination complained of. The Tribunal was not satisfied that the respondents had discharged that burden of proof.

56 In essence, the Tribunal was satisfied, for the reasons explained above, that the reason why (Shamoon) the respondents treated the claimant the way they did (i.e. a summary dismissal without regard to statutory or contractual disciplinary procedures and the other relevant policies, procedures and protocols of the first respondent) was the fact that he was a man and that had he (or the hypothetical aggressor) been a female, such person would not have been treated in that way."

12. We should make three preliminary points about the structure of that reasoning.

(1) Although the Tribunal distinguishes between (a) the question whether the Appellants had treated the Claimant less favourably than they would have treated a woman and (b) whether such treatment was on the ground of his sex, those questions are in fact two sides of the same coin. That point was made with great clarity by Lord Nicholls in his speech in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337, at paras. 7-13 (pp. 341-2), and has been recently reiterated by Elias J. in this Tribunal in Ladele v London Borough of Islington [2009] ICR 387, at paras. 30-39 (pp. 394-6). The meat of the Tribunal's reasoning is in fact in the paragraphs dealing with the first question (i.e. paras. 45-51). Indeed, its reasoning on the second question avowedly, and necessarily, adopts the points made in relation to the first: see para. 53.

(2) The discriminatory "treatment" found by the Tribunal was not, as such, the Claimant's dismissal, but the fact that he had been dismissed without any form of "due process": that is implicit at several points in the passage quoted, but is made explicit in the first substantial parenthesis in para. 56.

(3) The Tribunal explicitly applies the Igen test only in connection with the second question – i.e. that of whether the Claimant's treatment was on the grounds of his sex. Strictly, that was wrong. S. 63A applies to the entire question of whether the employer has committed an act of discrimination, and thus applies as much to "the less favourable treatment question" as to "the grounds [or "reason why"] question". Since the Tribunal's decisive reasoning is, as we have said, developed in connection with the first question, it would have been better if the Tribunal had deployed s. 63A in those paragraphs. However, we do not think that its failure to do so is of any significance in the circumstances of the present case.

13. The Tribunal refers to various authorities which had been cited before it. Most of them have no bearing on the issues on this appeal, but we should say something about Fire Brigades Union v Fraser [1998] IRLR 697. In that case the union had withheld assistance in disciplinary proceedings from a male member of the union who had been accused of sexual harassment. The employment tribunal had held that it had done so on the grounds of his sex and that a woman in the same position would not have been denied assistance. This tribunal (by a majority) held that that was an inference which the tribunal had been entitled to draw: see [1997] IRLR 671. But the Court of Session allowed the union's appeal. At para. 7 of its judgment (p. 699) it referred to the inadmissibility of inferences based on "speculation" and said:

"In the present case we are satisfied that there were no facts established in this case which would justify any inference that the decision taken by the union to withdraw support for the respondent was taken on a gender related basis rather than on a conduct related basis. The crucial inference drawn by the tribunal was that they were satisfied that a female would have been treated in a non-judgmental way and received the usual representation in a time of difficulty. We have been unable to find any facts established which would justify the drawing of that inference, nor indeed are there any other inferences which can legitimately be drawn from the evidence which would lead to that final inference."

14. Those preliminary points being made, we can analyse the Tribunal's core reasoning in the following steps.
15. First, C's initial sympathies would have been with the alleged victim irrespective of gender: para. 46. This is an important finding because it involves the rejection of a central part of the Claimant's case, namely that C was motivated by an instinctive sympathy, derived from subconscious stereotyping, for X's position as a female victim of male aggression. The Claimant had first made that allegation in his grievance of 19 September, where he said that C's conduct was:

"… based on an unreasonable and unsubstantiated presumption of guilt, arising from your belief that because my accuser is a woman she must be believed and because I am a man it must automatically be assumed that I am guilty of the offence."

And it appears to have been his principal case before the Tribunal. But it was not accepted. The Tribunal's thinking on this issue is clear from the primary findings of fact in the narrative section of the Reasons. It made positive findings as to why C believed X. When she first came to him she was in great distress, and it was – as the Tribunal put it at para. 18.21 – "perfectly understandable that … [he] … should have felt compassion towards a member of his senior management team with whom he had a close working relationship". Her account carried conviction, and there were, or C thought there were, a number of objective features which corroborated it. He was told that J, an experienced police officer, believed her. Those features are capable of accounting for his belief, held from the start and subsequently reinforced, that X was telling the truth, without any need to look for explanation in subconscious stereotypes.

16. Secondly, the reason why C did not afford the Claimant due process was that he feared that doing so could put X and possibly other staff at risk of further serious violence. That is the effect of the first sentence of para. 47. We asked both Mr Legard and the Claimant on what evidence that finding was based. Both agreed that the only relevant evidence was C's, summarised at para. 18.48 of the Reasons as follows:

"The second respondent's evidence was that he was very conscious that he had only heard X's account and did not know what the claimant would say but, despite that, he believed that the first respondent was employing a violent rapist in a very senior position with authority over female staff and access to confidential information relating to vulnerable children. In this regard, however, in answer to a question from the claimant, H confirmed that, in his opinion, suspending the claimant would have removed any ongoing threat. The second respondent said that he had not raised these matters with the claimant as, "he was bound to categorically deny the allegations". He was also concerned that such a confrontation could have "disastrous consequences" for X and others as he considered it very likely that the claimant would confront X "with the most fearful of outcomes".

17. Thirdly, if the alleged aggressor had been a woman, and her victim a man, C would not have had that fear. That is the finding in para. 47 taken as a whole.
18. Fourthly, the reason why C would not have had that fear in the case of a female alleged aggressor, whereas he did have it in the case of the Claimant, was the difference in their respective genders. That is expressed at para. 48 by saying that the Tribunal "drew the inference" of discriminatory grounds from their finding at para. 47. That, with respect, is not quite the right way to express it. The finding that C acted on the ground of the Claimant's sex is not an inference from, but the logical corollary of, the finding that he would have treated a woman differently: see para. 12 (1) above. But that error is not in itself significant.
19. The remaining, and crucial, question is on what facts or reasoning the Tribunal based its conclusion at para. 47 that C would not have had the same fear of further violence in the case of a female alleged aggressor as he had in the Claimant's case. The Reasons do not expressly address that question. This omission is central to the appeal, and we return to it below.
20. In short, the Tribunal's finding in the Claimant's favour is squarely based on the finding (a) that he was denied due process because C feared "repeat violence" and (b) that he would not have feared such violence in the case of a female alleged aggressor.

THE GROUNDS OF APPEAL

21. Although the Notice of Appeal pleads six distinct grounds of challenge to the Tribunal's decision, in our view they come down to one central point, namely whether there was any or any sufficient basis in the primary facts found to justify the Tribunal's conclusion that C's fear of further violence on the part of the Claimant was because of his gender. That is the essence of grounds 1 and 4, which read as follows:

"Ground 1

There was no evidence to support the Tribunal's finding that a woman in the same, or not materially different, circumstances would have been treated more favourably than C. The Tribunal was therefore wrong to conclude that (a) there was less favourable treatment afforded to C and (b) even if there was, such treatment was on the grounds of his sex.

Ground 4

The Tribunal failed to identify which, if any, "primary facts" it relied upon for the drawing of inferences or how such facts supported their conclusion that, had the hypothetical aggressor been a female, such a person would not have been treated as C was treated. Furthermore the Tribunal failed to explain why it rejected R2's assertion that he would have acted in the same way irrespective of the alleged aggressor's sex and irrespective of the alleged victim's sex."

Strictly, the question is whether there was any or any sufficient such basis to get the Claimant past "Igen stage (1)"; but in truth the assessment required is the same at whichever stage it is performed. Ground 2 merely emphasises the points which we make at para. 15 above, namely that the Tribunal did not accept the Claimant's primary case. The remaining grounds make particular points which are in our view supportive of, rather than alternative to, the main point. They are as follows:

"Ground 3

The Tribunal erred in law by failing, when conducting the hypothetical comparative exercise, to take account of all the material circumstances, including the fact that R2 acted on legal advice prior to dismissing C. Furthermore the Tribunal erred in law, when making the comparison, by failing to use at its starting point a like for like female comparator who was not only capable of the most serious physical assault on a male but also presented a real risk of carrying out such an assault.

…

Ground 5

The Tribunal's finding that R2 would not have had the same concern with regard to the potential risk posed by C (if C had been a woman) was not supported by any evidence and, moreover, was a finding based upon stereotypical assumptions on the part of the Tribunal itself, namely that female aggressors are not as potentially dangerous to males as male aggressors are to females.

Ground 6

The Tribunal erred in law by failing to consider how R2 might have acted had the alleged aggressor and victim both been female or indeed both male."

CONCLUSION

22. We have not all found this an easy case to decide. It is necessary to consider the Tribunal's reasoning process with care. The crucial question is on what evidence or primary findings the Tribunal based its conclusion that C would not have feared further violence from a female alleged aggressor (and so would have accorded her due process). As we have already noted (para. 19), the Tribunal does not spell out its thinking on that point. There was no direct evidence on which such a conclusion could be based: no such situation had ever occurred, and the Tribunal refers to no admissions by C, or other evidence of his attitudes, that might have supported a view as to how he would have behaved if it had. It is of course true that the Tribunal was in principle entitled to draw appropriate inferences from the nature of the behaviour complained of. C's behaviour was certainly sufficiently surprising to call for some explanation: in the public sector in particular it is second nature to executives to follow appropriate procedures, and the explanation offered by C for his failure to do so in the present case - namely that he was seeking to avoid repeat violence (see para. 16 above) – is irrational since he could have mitigated the risk to precisely the same extent by suspending the Claimant. But the fact that his behaviour calls for explanation does not automatically get the Claimant past "Igen stage 1". There still has to be reason to believe that the explanation could be that that behaviour was attributable (at least to a significant extent) to the fact that the Claimant was a man. On the face of it there is nothing in C's behaviour, or the surrounding circumstances, to give rise to that supposition.
23. The only possible explanation that we can see for the Tribunal's conclusion is that it believed that there is a prevalent stereotype that women are less prone to violent behaviour than men, and that it believed that because of that stereotype C would not have feared repeat violence from a female alleged aggressor in the way that he said he did from the Claimant - and so would have been prepared to accord her due process. If that was indeed the Tribunal's reasoning, we believe that it was illegitimate. Any conclusions as to C's motivation must be based on the evidence. We can see no basis in the evidence for any inference that C's fear that the Claimant might be violent was based on his gender, or, therefore, that he would have treated a female alleged aggressor differently. The possibility that C was influenced by a stereotype of male violence could be no more than speculation, without any evidential foundation – cf. the Court of Session's view about the not dissimilar conclusion of the tribunal in the Fire Brigades Union case. Although tribunals must of course be alive to the fact that stereotypical views of male (and female) behaviour remain common, there must still in any given case be sufficient reason to find that the putative discriminator has been motivated by such a stereotype (or, in cases which turn on the burden of proof, that there is sufficient reason to believe that he could have been so motivated). We see no such reason in the present case. The evidence disclosed a complete and obvious reason why C believed that the Claimant posed a continuing threat of violence – namely that he had, as C believed, acted violently towards X (and it was in fact also part of her account that he had threatened to "get her" if she told anyone what had happened). If the hypothetical female alleged aggressor had acted with comparable violence towards her victim (and had made the same threats) there is no reason whatever to suppose that C would not have had the same fears. Why should he not? The risk is the same in either case. The fact that female sexual violence is no doubt very rare (though not wholly unknown) is beside the point: the question for the Tribunal was how C would have acted in such a case. There was no basis for finding that he would have acted differently than he did.
24. We would in fact also add that in the particular circumstances of this case we do not find C's behaviour in summarily dismissing the Claimant, and the irrationality of his argument that he needed to prevent the risk of further violence (which could equally well have been achieved by suspension), entirely unaccountable in human terms. It is clear from the Tribunal's findings that C's judgment was seriously impaired by his sympathy for X and by the novelty and difficulty of the decisions which he had to take. That does not detract from the view shared by both ourselves and the Tribunal that someone in his position should have been able to act with proper objectivity.
25. We therefore do not believe that the Tribunal's conclusion can be supported in law, since the only ground on which it might be defended seems to us to rest on no evidential basis.
26. The focus of the Claimant's well-presented and articulate arguments in support of the Tribunal's decision was that it had been entitled to infer that the reason why C believed X's story, so firmly that he was not prepared even to hear from the Claimant, was essentially that he subconsciously accepted the doctrine that women making accusations of rape are always to be believed. We agree that if that had been shown to be the case his conduct would have been discriminatory: to act on an automatic assumption, conscious or unconscious, that an accusation of rape by a woman against a man must be well-founded is itself a stereotype based on gender, and to act on such an assumption would be to act on the grounds of the man's sex. But, as we have sought to show, that was not the reasoning of the Tribunal. Rather, its conclusion that the Appellants had discriminated against the Claimant was based on a very specific finding, namely that C's motivation for denying the Claimant due process was the fear of further violence. At para. 46 of the Reasons it expressly rejected the contention that C believed X simply because she was a woman complaining of rape.
27. The finding in para. 46 is not challenged in the Respondent's Answer; but, given that the Claimant is not represented, we would not have been disposed to prevent him from challenging it if there were good ground for such a challenge. But we cannot see that there is. The finding is plainly one which it was open to the Tribunal to make: see para. 15 above.
28. No point was explicitly taken before us, by either party, on the Tribunal's approach to the "hypothetical comparator" issue. The Claimant did, however, emphasise to us that rape (at least in the sense understood by non-lawyers) is gender-specific; and it could on one view be said to be artificial, if not indeed meaningless, to ask how C would have treated an alleged female rapist. The Tribunal clearly believed that the requirements of s. 5 (3) were satisfied by hypothesising a female "aggressor". (It might perhaps have been better to specify a female "sexual aggressor", but we do not think that for the purpose of its reasoning anything turns on the distinction.) In our view that was entirely legitimate for the purpose of the comparison being performed at para. 47: fear of violence is not gender-specific. If the Tribunal had accepted the Claimant's case that C was motivated by an abhorrence of the actual act of male-on-female rape, or stereotypes associated with it, it might have been a different matter. But it did not.
29. We accordingly allow the appeal and dismiss the claim of sex discrimination. We wish, however, to say that, although we do not in the end accept its reasoning, we were impressed by the care and conscientiousness shown by the Tribunal in its approach to a very difficult case. We also wish to make clear, if it is not sufficiently clear from what we have said already, that the Claimant was in this case very unfairly treated. But the proper vehicle for remedying any such unfairness is by a claim of unfair dismissal. It is the Claimant's misfortune that the employment arrangements into which he entered meant that he had not at the date of his dismissal accrued sufficient qualifying service to bring such a claim. But we cannot of course succumb to the temptation of seeking to get round that difficulty by allowing a claim of sex discrimination for which we can find no basis.

ANONYMISATION

30. At a case management discussion on 15 January 2008 the Tribunal made a restricted reporting order (an "RRO"), in accordance with rule 50 of the Employment Tribunal Rules of Procedure. Such an order may be made in any case which involves allegations of sexual misconduct (rule 50 (1) (a)), and its effect is to prohibit the publication of any matter likely to identify a person "affected by … or making" the allegation in question: see s. 11 of the Employment Tribunals Act 1996. The order, if not revoked earlier, will expire once both liability and remedy have been determined: rule 50 (8) (b). That limitation reflects the fact that, at least on the traditional view, the purpose of an RRO is not to give permanent protection to the privacy of the persons affected, but rather to prevent distortion of the legal process, though the position is frankly not very clear: see the discussion at para. 5 in the judgment of this Tribunal in Tradition Securities and Futures S. A. v Times Newspapers Ltd. [2009] IRLR 354. The Tribunal does not explain why, since an RRO was in place, it thought it necessary to conceal the names of the parties and other persons named in its Reasons. Perhaps it believed that to include the names of the persons affected, or other material which might lead to their identification, would constitute "publication" of identifying matter within the meaning of s. 11 or in any event might lead to publication by others. There was, however, as discussed below, a different basis on which the procedure could have been justified.
31. This Tribunal also has the power to make an RRO: see s. 31 of the 1996 Act and rule 23 of the Employment Appeal Tribunal Rules 1993. But any such order may only be made on an appeal against a decision to make, or not make, an RRO or against an interlocutory decision (see s. 31 (2)). The order expires at the moment of the promulgation of the decision: see rule 23 (3). An RRO was in fact made in the present appeal, but it appears that it should not have been, since the appeal was not of a kind specified in s. 31 (2): it is however unnecessary to revoke it since it no longer even purports to apply.
32. Thus, although we have thought it necessary to refer to the position about RROs by way of background, they are in fact irrelevant to the issue of whether we should anonymise the present judgment. They are not however the only orders of this character that can be made. In X v Commissioner of Police of the Metropolis [2003] ICR 1031 this Tribunal held that it (and indeed the Employment Tribunal) has power, on the true construction of its rules, "to make … provision in respect of confidentiality of the identity of the applicant or … respondent": see per Burton P. at paras. 47 (p. 1046) and 56 (p. 1049). In that particular case the exercise of that power was held to be necessary in order to ensure that an applicant who had undergone gender reassignment surgery should not be deterred from prosecuting a claim for sex discrimination; and Burton P. attached importance to the fact that the United Kingdom was obliged by EU law to accord her an effective remedy for such discrimination. But if the power exists it must be available in any appropriate case.
33. Mr Legard submitted that in the present case maintenance of the anonymisation performed by the Tribunal was necessary in order to protect the right of X to maintain her confidentiality as a complainant of rape. He relied both on art. 8 of the European Convention of Human Rights and on art. 6. The argument based on art. 6 is not straightforward (though we do not say it is hopeless) because X is not a party to the proceedings. But we are satisfied that a proper claim for confidentiality can be made by the Council (her employer), based on her art. 8 rights. The right of a complainant of sexual violence to maintain her privacy is well-recognised and is of course, in the context of criminal proceedings, given effect to by s. 1 (1) of the Sexual Offences (Amendment) Act 1992. We have borne in mind that the Tribunal found that X's allegation of rape had not been proved; but we do not believe that in the circumstances of the present case that makes any difference. It is necessary, in order to prevent her identification, to anonymise also the names of the parties.
34. It is on that basis that this judgment has been anonymised, and we also make appropriate orders to prevent the appearance of identifying matter in the Tribunal's records.
35. While the Claimant fully supported the Council's submission that anonymity should be maintained, he made it clear that he did so on a wholly different basis – essentially that he, as the victim of an unfounded allegation of rape, should be entitled to have his identity protected. An application on that basis gives rise to much wider issues; and since the same result is achieved on the basis contended for by the Council we need not consider it further.
36. We should also add, very much by way of footnote, that in cases where tribunals decide to follow the course of anonymisation, it would be helpful if they rang the changes on the letters of the alphabet used. There is already a confusing profusion of reported cases called "A v B" or "X v Y".