Sheppard v Post Office [1992] UKEAT 373_90_1806

EAT
Sheppard v Post Office
[1992] UKEAT 373_90_1806 · 1992-06-18
MR JUSTICE KNOX: The Appellant before us was at the time of the relevant events, known as Miss Sheppard. She has married subsequently but I propose to refer to her by her maiden name. She applied to the Industrial Tribunal which, at a hearing at London (South) on the 27th and 28th March 1990, held by a majority that her application for relief against unlawful discrimination contrary to the Sex Discrimination Act 1975 should be dismissed. It follows of course that the minority view was the application should be upheld.The application arose out of an incident on the 16th June 1989 when Miss Sheppard complained that she was sexually assaulted by one of her fellow employees, a Mr Austin. The events occurred in, and about the lift in premises to which, as Post Office employees, they both went, in the evening around about 9.30 to 9.40 pm. The only other person who saw anything of the events was a gentleman called Mr W Callender who travelled in the lift together with Miss Sheppard and Mr Austin from the 4th to the 2nd floor. He subsequently gave some account of what he had seen.The matter was the subject of an immediate complaint by Miss Sheppard and it was the subject of very prompt action on the part of Post Office employees. It was also the subject of a complaint to the Police that same evening who investigated the matter and Miss Sheppard went to the Police Station for that purpose. She decided that she did not wish to prefer a charge in law and the Police therefore ceased to investigate that matter. They returned her to the office of the gentleman in the Post Office who was dealing with the matter, a Mr Maney at about 2.30 in the morning. She thereafter went on 3 week's annual leave. There is no doubt but that she was extremely upset by the incident at the time.The investigation followed in a way which no one has criticised so far as the early stages were concerned, and it is not, I think, necessary for the purposes of this decision to go through the details of it. It will suffice to say that the person who was primarily in charge of the investigation, a Mr Reeves, head of Personnel, took a very strong line. He stated that it was a disgraceful incident and there was the need for urgent serious disciplinary action to be taken. That went through to his inferiors who proceeded to investigate. The third party, Mr Callender, was interviewed on the 29th June. Mr Austin was summoned to explain himself on the 6th July. That was on the basis that his initial explanation was not regarded as being satisfactory and he was therefore required to explain himself on a formal basis. I have passed over various intermediate stages which need not, in my view, be gone into in any detail. The ultimate position, so far as the investigation was concerned, was that a procedure known in the Post Office as RTU, which is Post Office shorthand for giving an employee an opportunity to state reasons to urge why he should not be dismissed, was invoked and that interview, with Mr Austin being given that opportunity, took place on the 26th July that is one month and ten days after the incident in question, before a Mr Forrester, who was the line manager in question, that is to say a District Head Postmaster. He had got the results of other peoples' enquiries, all of which, both that of a Welfare Officer, a Mr Duffy, and that of a Mr Swainson, the gentleman in Personnel to whom Mr Reeves entrusted the investigation, had formed the view that Mr Austin was guilty as charged of an improper sexual assault and at the outset of the RTU procedure before Mr Forrester it was indeed the prima facie situation so far as Mr Forrester himself was concerned.Mr Forrester interviewed Mr Austin at some length, and the Industrial Tribunal had the notes of that interview before it, as indeed have we. Mr Forrester then proceeded on holiday from the 28th July to the 13th August, and the next day after his return from holiday he interviewed Miss Sheppard, who had previously in July, been asked to submit a formal written report at Mr Forrester's request and which she had indeed done. It is in regard to this interview on the 14th August that the first and most serious complaint in these proceedings was raised. As a result of that interview, to which we must return, Mr Forrester altered the prima facie view that had been formed of Mr Austin's guilt and sent a memorandum to Mr Reeves in which he said, amongst other things this:
"Having now heard both accounts of the incident I have decided to accept Mr Austin's RTU. I do so on the following basis:
-Mr Austin has admitted his actions throughout;-he claims that Miss Sheppard did not reject his advances;-he had been in social contact with her before (in pubs outside the office);-she had allowed him on one occasion to `kiss and cuddle' on the way back from the pub;-her statement on the extent of the physical events which took place comply (sic) with Mr Austin's;-I find it hard to accept that Miss Sheppard was accosted by Mr Austin for a prolonged period, during which she made no attempt to shout or yell for help;-the sexual advances/assault took place in a lift which was stopped at the 2nd floor, it then proceeded to the 4th floor, then harassment was interrupted by a lift arriving at the 4th floor with a black occupant, then all three travelled to the 2nd floor, during all of which time Miss Sheppard did not/could not escape, nor shout for help, nor accuse Mr Austin when the third person came into the picture;-the time elapsed on the 4th floor could have been up to 10 minutes duration;-Miss Sheppard claims she was so ill she was sick in the toilet, went to the bar and had a cigarette, then went to the sorting office signed on but told no one; and-Miss Sheppard is `unable' to establish who the black man was except to say she `thought he was a cleaner'."So those were the reasons that Mr Forrester gave for having formed the conclusion that he did form, contrary to that of those who had previously investigated the matter. He also added a suspicion that:
"Miss Sheppard may have ended up in a situation which she encouraged or which `got out of hand'"
and he advanced the further suspicion that:
"the claim of sexual assault may in fact be a `front' because she did not want her step-father, or her boyfriend, (both of whom work in this office) to hear that she had been involved with Mr Austin. [But Mr Forrester said] Even if the above hypothesis is wrong I am not sufficiently certain to act to dismiss Mr Austin."
and Mr Forrester's decision on penalty was that he should award a written reprimand to Mr Austin and warn that behaviour of this kind would not be tolerated.When the matter came before the Industrial Tribunal the further events had been that there had in fact been an attempt to separate Miss Sheppard from Mr Austin in that Miss Sheppard had asked, and the Post Office had taken steps to comply with the request, to be transferred, or it may be promoted, to a PA job for which she was quite promptly tested and transferred. Unfortunately, it involved working in the same premises, albeit on a different floor, and there were three occasions, it is found as a fact, when she and Mr Austin subsequently met. Mr Austin later was dismissed, we understand, but for reasons which have no connection with this case.The Originating Application by Miss Sheppard was dated the 24th November 1989, and presented the next day.The Industrial Tribunal's decision contains a very lengthy statement of the initial facts and in particular, the documentation. There are set out almost in full the notes of the two interviews that Mr Forrester had with the principal actors in the drama, that on the 26th July with Mr Austin and that on the 14th August with Miss Sheppard. There are also the reports of the other persons who investigated the matter, again set out in extenso. That takes up the first 19 paragraphs and nearly 14 pages of the Industrial Tribunal's decision and is done in very great detail. The Industrial Tribunal then went on to give an account of the evidence that was given on the one side, by Miss Sheppard, and on the other side by Mr Forrester. Miss Sheppard's evidence about the interview was stated by the Industrial Tribunal to have included the following:
"Mr Forrester had [on that occasion] an accusing look; when she showed signs of emotional disturbance he shouted at her to pull herself together and told her she was not under oath; he fired questions at her accusing her of having led Mr Austin on; he had tried to ask her to go into details of where Mr Austin had touched her but she had `just clammed up'; . . . . . . Mr Forrester's questions had been abrupt and angry; they had made her feel guilty of being a woman. At the end of the interview [she said that] Mr Forrester had told the applicant that in three days she would get a letter telling her of the outcome of the hearing; she was still waiting for that letter."
The Industrial Tribunal then turned to Mr Forrester's evidence, first of all dealing with the interview that he had with Mr Austin, into which it is not necessary for us to go. Then, which is a critical part, in regard to the interview with Miss Sheppard, the Industrial Tribunal recalls Mr Forrester as saying, amongst other things, this:
"The applicant had been very agitated and nervous. When Mr Forrester had asked her to say what had happened, she broke into tears. Mr Forrester denied shouting at the applicant but had told her `perhaps tersely' that they had a difficult interview. He had not resumed questioning her until she had become more composed. He had tried to be positive in questioning the applicant as he had been in questioning Mr Austin. He was having to decide whether to dismiss the latter. He had asked the applicant direct questions and wanted direct answers. He did not recall saying that he would tell the applicant the result of his decision with regard to Mr Austin in three days. If he had done so and had not kept his promise, it was not because of the applicant's sex. Mr Forrester agreed that a written reprimand was generally an award for a minor misdemeanour but he had decided that he had not got the evidence to satisfy him that Mr Austin was guilty of a sexual assault. He could not treat Mr Austin as if guilty of such an assault if not satisfied that he was. He had concluded that he had no evidence that the sexual acts were without the applicant's consent."
and he then gives the reasons for imposing the penalty that he did impose.The Industrial Tribunal then goes on to give its decision and one looks first to see what findings of fact were made and secondly, what principles of law were applied to answer the question was there or was there not unlawful discrimination, contrary to the Sex Discrimination Act 1975. So far as the findings of fact are concerned we, first of all find one paragraph that has been criticised on behalf of Miss Sheppard. It is numbered 23 and it reads:
"This is a complaint of direct sexual discrimination. We are not concerned with whether the respondent acted sympathetically or sensitively towards the applicant in relation to her complaint of sexual assault."
With regard to that, it was submitted that one has to read the decision as a whole, and that is a submission which we have little trouble in accepting, and it is the fact that at the beginning of the decision in the second paragraph, the Industrial Tribunal set out the allegations that were being advanced on Miss Sheppard's behalf in the following terms:
"The applicant complains that, on the ground of her sex, the respondent treated her less favourably than it would have treated a man by subjecting her to detriment - (i)in the manner in which she was interviewed on 14 August 1989 by Mr Forrester, the District Head Postmaster . . . regarding the alleged assault;
(ii)by failing to take adequate steps following her complaint to ensure that she and Mr Austin would not meet in the course of their work; and(iii)by failing to inform her of the decision taken by Mr Forrester on 30 August 1989 at the conclusion of the disciplinary proceedings taken against Mr Austin."and it was pointed out that it was clear that the Industrial Tribunal had treated as being the first of the subject matters of enquiry, whether there had been unfavourable treatment in the manner in which she was interviewed on that occasion by Mr Forrester. We are not persuaded that in saying:
"we are not concerned with whether the Respondent acted sympathetically or sensitively towards the Applicant"
the Industrial Tribunal thereby meant to say that that was a wholly irrelevant consideration with which they were not going to concern themselves in any way whatever. Because the next paragraph goes on to contain what Mr Wynter submitted on behalf of the Post Office, to constitute a finding of fact on the first of the issues, namely, how was the interview conducted. That sentence is this:

"We accept that Mr Forrester questioned the applicant rigorously."

Mr Wynter submitted to us that that amounts, in the context, to a finding that that was all that Mr Forrester did by way of questioning the Applicant, namely that although it was rigorous, it was nothing more than rigorous, and that that effectively solves the clear conflict of evidence that there was, notably in the two passages that I have read earlier, one of which contains Miss Sheppard's evidence that Mr Forrester shouted at her to pull herself together, and the other that Mr Forrester denied shouting at the Applicant. That is a submission that we have some difficulty in accepting. It seems to us that the Industrial Tribunal did not make a specific, or indeed an implicit, finding in the majority decision as to exactly how this interview was carried on. A rigorous questioning can be entirely courteous and proper, it can, on the other hand at the other end of the scale be outrageously violent, we are suggesting that either of those two is necessarily the right answer, that is not a question that we are concerned with. What we are concerned with is whether we can detect in this decision a finding which of these two conflicting, and flatly conflicting, accounts by Miss Sheppard and Mr Forrester which the Industrial Tribunal heard, it accepted. It is to be added that Mr Wynter pointed out that the minority decision did make findings on the way in which the interview was conducted in the sense that there was an express statement that Mr Forrester's evidence was not to be accepted rather than Miss Sheppard's evidence, and so the minority undoubtedly accepted Miss Sheppard's account. Mr Wynter ingeniously suggested that we should deduce from that that the majority did the opposite. That is not a process that we feel able to indulge in. It seems to us that if a majority is making findings they should be stated in the majority decision rather than be left as an inference of a conflict with what the minority finds.The next question of fact among the three issues that were identified at the outset of the decision was the subject of a specific finding. That was that there were no adequate steps taken to keep Mr Austin and Miss Sheppard apart. It was specifically found as being a detriment to her by all three of the Members of the Industrial Tribunal. So there is no problem there. There is no finding in terms regarding failure to inform her of the decision but it does appear to us clear that there really was not any conflict of evidence at the end of the day either but that she was not told until long after. If one looks at the evidence, as recounted by the Industrial Tribunal, on the basis whether Mr Forrester said he would tell her, it is that Mr Forrester merely said that he did not recall whether he did or not, whereas Miss Sheppard said that he definitely did, and it does seem to us probable that the Industrial Tribunal accepted that Mr Forrester did make that promise and did not keep it. But that is as far as the findings of fact go.We then come to the paragraph which is at the heart of the majority decision, it is number 26, it only contains four sentences and it reads as follows:
"In the view of the majority, subjecting an employee to a detriment is not in itself evidence of discrimination, still less of discrimination on the ground of sex. Unless there is evidence of discrimination of some kind, there can be no inference of unlawful discrimination contrary to the Sex Discrimination Act. We heard no evidence to suggest that, if a man had complained of unwanted sexual advances made by a female employee, the respondent would have treated him any differently than it treated the applicant. The majority, with some reluctance, finds that the application fails and must be dismissed."
The criticism that is levelled against that paragraph is that the comparative process which is there revealed is one that is misconceived and indeed contrary to the provisions of the Act. The relevant provision is Section 5(3) of the Sex Discrimination Act 1975 which reads:
"A comparison of the cases of persons of different sex or marital status under section 1(1) or 3(1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."
The Section which is in question here is Section 1(1) and in particular 1(1)(a) which is the definition of what is very commonly called direct sex discrimination.That there has to be a comparison is clear from the frame of the Act, and indeed from Section 5(3). Identifying a proper comparator is therefore a necessary operation and the submission is that this comparison was an entirely inappropriate one. Mr Wynter, for the Post Office submitted to us that one should not place great weight on the sentence, "We heard no evidence to suggest that if a man complained of unwanted sexual advances made by a female employee the Respondent would have treated him any differently than he had treated the Applicant". He submitted that that was no more than illustrative and was not an essential part of the reasoning process of the majority. We are unable to accept that submission, it seems to us that if one has regard to the whole of that paragraph, there is a unity between the second, third and last sentences and that the penultimate sentence, which I have already read twice and do not propose to read again, is the logical bridge between the proposition that unless there is evidence of discrimination of some kind there can be no inference of unlawful discrimination contrary to the Sex Discrimination Act 1975, and the conclusion that the application fails. Between those two sentences, the critical sentence much quoted, clearly, in our view, performs the function of explaining why the Industrial Tribunal came to the conclusion that it stated in their last sentence of that paragraph and we are satisfied in our minds that no tooth comb needs to be wielded to arrive at that conclusion. It seems to us an inevitable result of a fair reading of the whole of paragraph 26. That comparison, is in our view, a most unfortunate one. It is unfortunate in that it is ambiguous, in this sense, that it is not clear what sort of unwanted sexual advances made by a female employee are envisaged. They might or might not be violent. If they were violent that would be so improbable as a matter of practical common sense as to form a wholly unsatisfactory comparison. If on the other hand they were not violent, they would not be comparing like with like with the allegation that was made against Mr Austin which was that he imposed himself on Miss Sheppard by force. Perhaps not very great violence but certainly by force. So that whichever meaning one takes of the rather ambiguous expression "unwanted sexual advances" it seems to us that the process of comparison is essentially a seriously flawed one. The other criticism that can be and was made is this. The statement "we heard no evidence to suggest that" at least suggests that there is a need for such evidence and it is notorious that in this jurisdiction it may well be that there is no direct evidence of what the treatment of the opposite sex would have been.

(a) itself, which it will be recalled reads:

"A person discriminates against a woman 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,"
So hypothesis is built into the Section itself and it must at least be possible for it to be a matter of inference for an industrial tribunal as to whether or not the treatment that would be accorded to a man would or would not be less favourable than that accorded to a woman or vice versa. Accordingly, we are persuaded that an essential step in the logical process by which the majority reached its conclusion that the application should fail was one that was seriously flawed and in those circumstances it does seem to us that this decision cannot stand.There were other criticisms made of the decision. We do not find it necessary to go into them in detail, notably questions asked of Mr Austin about his family circumstances and whether he had family responsibilities as compared with the lack of questioning of Miss Sheppard about her circumstances, and the extent to which continuing to work in the same locality or near it as Mr Austin was a detriment, were canvassed. We do not find it necessary to express views on that aspect of the matter. We have given serious consideration to the unfortunate state of affairs that our conclusion leads to, in that it is now, sadly, three years and two days since the events in question occurred, and it is most unfortunate that these events so long ago should now remain unresolved. We have given serious consideration to the question whether it would be possible for us to reach a conclusion on the matters that were canvassed before the Industrial Tribunal but we think it quite impossible because this Tribunal has no fact finding function and it has been laid down more than once that unless it is clear to this Tribunal what the answer to the problem must be it is not for us to perform the functions that Parliament has entrusted to industrial tribunals and therefore, with no enthusiasm, we have reached the conclusion that this matter must be remitted to a fresh industrial tribunal for reconsideration in the light of this Judgment.