Harrison v Institute Of Energy [1992] UKEAT 231_92_1405

EAT

Harrison v Institute Of Energy

[1992] UKEAT 231_92_1405 · 1992-05-14

MR JUSTICE WOOD (PRESIDENT) : This is an Appeal from a decision of an Industrial Tribunal sitting in London South under the chairmanship of the very experienced chairman Mr Walker sitting with Mrs Barton and Mr Bird, who on 3 days in December 1991 heard Mr Harrison's application alleging that he had suffered sex discrimination at the hands of his employers the Institute of Energy.

At that hearing Mr Harrison was represented by Mr Hussain (Of Counsel) and the Respondents were represented by Counsel also, Mr Ferris. In opening the case Mr Hussain submitted that the claims fell under something like 10 different heads which are all set out in the decision. In the end the issue really came down to this. Because Mr Harrison did not have the qualification period of 2 years he could not bring a claim for unfair dismissal which as the Tribunal said, might or might not have been a valid claim and the sole issue was that of sex discrimination under the 1975 Act.

The only possible ground of indirect discrimination is suggested to be that Mr Harrison was not granted a pay review until he had ensured as editor, that the magazine came out on time. He submits that that condition was indirect discrimination on the grounds of sex because other women working in the office did not have that condition attached to their annual pay review. It seems to us that put in that way there are really no grounds whatsoever for alleging indirect discrimination on such facts as we have gleaned from the decision. However, it is quite clear that the Tribunal were not aware of that claim. The essential, and the essence of his case before the Industrial Tribunal was that this was a case of direct sexual discrimination.

(a) of the 1975 Act:

"(1) A person discriminates against a women in any circumstances relevant for the purposes of any provision of this Act if - (a)on the ground of her sex he treats her less favourably than he treats or would treat a man"

As we know for "man" you can read "woman" and vice versa so that this applies whether the discrimination is against a man or against a woman.

At the end of the evidence for Mr Harrison, he gave evidence as apparently did some two others. Mr Ferris for the Respondents submitted that there was no case to answer. The Tribunal heard argument on both sides, considered all the evidence very carefully and came to the conclusion that there was no prima facie evidence of direct sex discrimination. Of course there was evidence there but they decided that the facts which the evidence established, did not constitute a prima facie case and they dismissed the application.

Mr Harrison, who now appears in person, has submitted that they had no right to reach that conclusion because he submits that the facts which were proved did establish a prima facie case. In commenting on the way in which the hearing had progressed the Tribunal say this in paragraph 3:

"We have to say that, regrettably, that Mr Harrison's evidence was beset with exaggeration, and evasiveness, which was clearly apparent whenever anything which he had said was questioned or investigated. That was a matter which we had to draw to Mr Harrison's attention on various occasions. Equally unfortunate was the fact that Mr Hussain opened the case with a considerable amount of hyperbole, whilst, in examination in chief, both of the Applicant and the Applicant's witnesses, he persisted in asking not only leading, but often highly pejorative, questions."

They go on to indicate that they had to adjourn for 30 minutes on one occasion. So this was a difficult situation and the Tribunal had to decide what facts could be taken as having been established by the evidence before them.

We have seen a number of Further and Better Particulars which were before the Tribunal because the Originating Application in its original form really tells one nothing, it is a very general allegation. From that documentation the evidence and the submissions the Tribunal say in paragraph 4 that they isolated 4 allegations which are capable of being identified and they say:

"Mr Harrison's complaints, insofar as there was any evidence to support them may be summarised as follows"

and they summarise those 4 points.

Before us Mr Harrison does not wish to rely on the fourth point at all, so we shall ignore that, but the other three were first of all that there was an allegation that in the letter of offer which he had received, a document containing terms and conditions, 3 matters were not contained in that document which he considered should have been so contained. It seems by implication also that they may have been contained in the contracts of employment of some of the women involved.

Secondly, the complaint was that he was forced to compete with others for a post which he contended was the job that he had formally carried out, albeit with a new title, and in that competition a female was chosen.

Thirdly, that he was dismissed as redundant. An action which he was contending was victimisation arising out of an earlier application to an Industrial Tribunal under Section 11 of the 1978 Act, which as we know relates to the terms and conditions of employment.

The Tribunal looked at such facts as were established under each of those headings. They considered the terms and conditions of employment (they deal with that in paragraphs 5, 6 and 7). The first omission was apparently a job title, the second was an omission for a contractual annual pay review and the third was a condition about flexible hours. Mr Harrison was submitting that the omission of those matters established a prima facie case, in the circumstances, of direct sex discrimination. The Tribunal examined those facts and came to the conclusion that it does not even provide a prima facie case. We read that and we can see no error in that approach.

Secondly, the Tribunal look at the question of the new position. They find against Mr Harrison's case that the job was identical or very much the same as that for which he was previously employed namely the editor. This position was a new position with additional responsibilities and that is a question of fact. Then they deal with the question of a woman having been chosen and they say at the start of paragraph 9:

"There was no evidence before us whatsoever that the woman was chosen in preference to Mr Harrison because of her sex."

They go on to point out that in fact she did not take this up, the first woman offered it, and in fact a man was appointed. They reject that particular allegation.

Thirdly, they look at the question of the victimisation arising out of the earlier case before the Tribunal. They reject that and they also reject a suggestion, that was clearly being made, that during a reorganisation the management had spoken and discussed the matter with some of the women, but had failed to discuss it with Mr Harrison, who indeed happened to be out of the country at that time. That again they reject.

Mr Harrison has submitted first of all that because of the wording at the beginning of paragraph 4 namely the phrase "insofar as there was any evidence to support them" indicates that there is an implied acceptance that there was evidence of sex discrimination and he also relies on a phrase in paragraph 7 which starts with the words:

"The last item proved in evidence was..."

and he submits there that that indicates there was an acceptance implied there but there was evidence before them and he submits therefore that it was quite wrong of the Tribunal to take this step.

With respect to him we feel he may have misunderstood the position in law. It must be a rare occasion, when there is some evidence of discrimination for a Tribunal to stop a case, because they may need some explanation of what is maybe a slender and delicate case of discrimination. The reason for hearing the explanation and requiring one is as explained in many of the cases, that the burden of proof is on the Applicant but it may be very difficult for an Applicant to discover and provide evidence of discrimination.

This Learned Chairman is immensely experienced and was no doubt familiar with those cases. They may even indeed have been referred to him. However he took the view, after careful examination that here was a case where there was no evidence of direct sex discrimination. I am as a lawyer using that expression, so I may explain it to Mr Harrison. It means that there were no facts established by the evidence nor any reasonable inference to be drawn from those facts established by the evidence from which it could be argued that there was any disclosure of a prima facie case of direct sex discrimination. That is what the Tribunal found. There is no error of law. We can find no factual facts established here which would have pointed to discrimination and for which an explanation was required. In those circumstances therefore we find no point of law here which merits argument with both parties present.

Lastly may I just say this. Mr Harrison takes a point on paragraph 12 where he submits that the Tribunal were not entitled to take into account the fact that he obtained a post shortly after his departure from the Respondents at Tonbridge as an assistant editor and that he lost that position within a short time because his new supervisor had no confidence in him. That was not a matter which was essential to be mentioned but nevertheless an Industrial Tribunal is entitled to take into account those matters which it thinks assist it in reaching a decision. There is no point of law on that matter either. This Appeal must be dismissed at this juncture.