Automotive & Financial Group Ltd v Bark [1994] UKEAT 398_94_1010

EAT
Automotive & Financial Group Ltd v Bark
[1994] UKEAT 398_94_1010 · 1994-10-10
MR JUSTICE PILL: This is an employer's Appeal against the Decision of the Industrial Tribunal held at Lincoln on 28 February 1994, whereby the Tribunal unanimously decided that the Applicant, Miss K. Bark, was discriminated against on the grounds of her sex and was awarded compensation of £5,880.The Appellant employers sell motor vehicles and the Respondent, Miss Bark, was employed as a trainee sales person in their Lincoln branch. She commenced that employment on 10 July 1993. The employment was terminated on 26 July 1993. Before the Tribunal the Applicant successfully claimed that the reason for her dismissal after such a short period of employment was because she was a woman.

(a) of the Sex Discrimination Act 1975 provides that:

(1) "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.Section 6(2)(b) provides that:"(2) "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 - (b) by dismissing her, or subjecting her to any other detriment.It is common ground that the question which the Tribunal needed to ask itself was "would the employee have received the same treatment but for her sex?" or "has the employee been treated less favourably than a man would have been in the same situation?"; James v Eastleigh Borough Council [1990] IRLR page 288. It is common ground that the Tribunal were entitled to conclude, upon the evidence, that during her short period of employment Miss Karen Bark had been the subject of sexual harassment.In his able and helpful submissions on behalf of the Appellant employers, Mr Howlett accepts that he is not in a position to dispute that the Tribunal were entitled to make that finding, and undoubtedly "coarse remarks" to use his expression, had been made to Miss Bark. In summary, Mr Howlett's submissions are that the Tribunal were wrong in finding that Miss Bark's dismissal was the result of sexual discrimination. Second, that the reasons given by the Tribunal were inadequate and third, that the Tribunal failed to apply the test which we have already set out. The Reasoned Decision is quite short and it is necessary to set out several paragraphs from it:
"5. It is a fact that the sales force at the respondents' premises in Lincoln were totally male orientated and there had never been a lady salesperson there previously.
6. The respondents said that they were critical of the applicant because she was trying to do too much herself and was not referring back to her Manager as she should. They criticised her for not keeping customers in the salesroom so that the Sales Manager could speak with them. She said that this was not always easy and that most of the salesmen were criticised in the same way as she was.7. It is a fact that the applicant was dismissed on 26 July. There was no single act amounting to gross misconduct, and in fact the respondents paid the applicant a week's wages in lieu of notice. (We were told that the respondents were concerned about the applicant's wilful behaviour and disregard of the necessity of complying with the requirements laid down).8. It is a fact that the Sales Manager did complaint to the General Manager about the applicant. The applicant says that at the end of the day the respondents did not like having a woman working within this male dominated workforce.9. We are satisfied that the applicant was discriminated against in the way that I have said because this was not challenged. It is a fact that nothing was said to the sales force upon the applicant's arrival about the behaviour of the sales force with the advent of a woman on to that sales force. It seems to us extraordinary that a trainee salesperson should be dispensed with, within 2 weeks of being taken on. The applicant impressed us as a confident, smart, alert and assured person. We believe that the real reason for the applicant's dismissal was that she was a woman and that fact grated upon the Sales manager and the sales force.10. It is significant that the respondents called no evidence apart from the General Manager. We would have thought that at least the Sales Manager and some at least of the sales personnel would have been called to give evidence on behalf of the respondents but they were not.11. The fact of the applicant's dismissal after such a short trial period with no gross misconduct is so extraordinary as to enable us to draw the inference that the only reason for that dismissal was because she was a woman.12. We therefore find that the applicant was discriminated against both by way of the actions of the workforce and by way of dismissal in due course".The Applicant appeared before the Tribunal in person and gave evidence. We do not have the Chairman's Notes of Evidence. It is common ground that she gave evidence in accordance with the details of her complaint, which she submitted on 6 October 1993, on Form IT1, and also in a further document headed "Sex Discrimination Act 1975, Section 74(1)(a) - A Questionnaire Of Person Aggrieved".The employers before the Tribunal were represented by Counsel. They called one witness, Mr Tony Choppin who was the General Manager. We need not spell out the allegations of sexual harassment in detail. They include remarks made to her by reason of her sex, some of them of a most unpleasant nature. The main allegations are against a "senior employee with the Christian name of Graham". One specific allegation is made against Mr Choppin himself.We have indicated that the Tribunal were entitled to find there had been sexual harassment. It is necessary to say a little more about the background in view of the manner in which the Tribunal have expressed their Decision. It is common ground that when she gave evidence Miss Bark was not cross-examined upon the allegations which she made, save in relation to the allegation made against Mr Choppin. In her written case it was submitted that some of the other remarks were made in the presence of management and she was not cross-examined about these even though it may be that she was alleging that Mr Choppin was present on occasions when the harassing remarks were made.It is not clear from the Tribunal's Decision whether the allegations which Mr Choppin makes against Miss Barr are as a result of his own knowledge, or whether he was simply relaying complaints which it is clear had been made to him about her by the Sales Manager who did not give evidence.It is against that background that Mr Howlett submits that the Tribunal have failed to make findings of fact as to what acts of harassment there were and by whom those acts were committed. Further, he submits the inference which the Tribunal have drawn could not be justified upon inadequate or incomplete findings of fact. There was no finding as to whether Mr Choppin himself had harassed Miss Bark. That could be relevant because if he had, as he was the senior employee who dismissed her, then it is easier to draw the inference of sexual discrimination, if he himself had been found to be a harasser.Mr Howlett submits that there is no sufficient statement or summary of what evidence the Tribunal accepted and what evidence they rejected and as to why they rejected it. The Tribunal were not entitled, he submits, to give such high significance to the fact that dismissal was after a short period of employment. The employers, he submits, do not know why they have lost the case.It was not enough for present purposes to say that the Tribunal could have made proper findings if in fact they did not make them. He further submits that there is no self-direction upon the law, either expressly or by implication, in the Tribunal's Decision. He draws attention to the absence of any complaints by Miss Bark. While he accepts that absence of complaints should not be taken against her, he submits that it is more difficult for a Tribunal to find the dismissal as having been because she was a woman, if she had not expressed complaints about harassment on that ground.In reply to submissions that the findings of fact can be inferred from what the Tribunal concluded and what they have said, Mr Howlett submits that the Tribunal must find facts expressly and it is not satisfactory for them to do so, or to be held to be entitled to do so upon inferences from a conclusion which they have expressed. Similarly, upon the law, this Tribunal must not work backwards from the conclusion which the Industrial Tribunal expressed to find what the reasoning process must have been. The Tribunal could easily have found facts and directed themselves upon the law and they failed to do either of those things.We have been referred to the decision of the Court of the Appeal in Meek v City of Birmingham Council [1987] IRLR 250 . Bingham L.J stated at paragraph 8:
"It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be a sufficient account of the facts of reasoning to enable the EAT or, on further appeal, this Court to see whether any question of law arises ...'
....and it is highly desirable that the decision of an Industrial Tribunal should give guidance both to employers and trade unions as to practices which should, or should not be adopted".In Wadman v Carpenter Farrer Partnership [1993] IRLR 375, the President of the Tribunal, Mr

Justice Wood having recited the passage to which I have referred stated:

"Bearing that in mind, it is important to see what the law is which should have been applied by this Industrial Tribunal and whether it directed itself sufficiently on the law, or indeed, whether we are able to see from their decision what direction the Tribunal, in fact, gave itself".The Employment Appeal Tribunal in that case found that it was quite unable to analyse the thinking of the Industrial Tribunal. In the course of his judgment in Chapman v Simon [1994] IRLR 124 Court of Appeal, Lord Justice Peter Gibson stated at page 129 paragraph 43 in a case where racial discrimination was alleged:"More often racial discrimination will have to be established, if at all, as a matter of inference. It is of the greatest importance that the primary facts from which such inference is drawn are set out with clarity by the Tribunal in its fact-finding role, so that the validity of the inference can be examined. Either the facts justifying such inference exist or they do not, but only the Tribunal can say what those facts are. A mere intuitive hunch, for example, that there has been unlawful discrimination, is insufficient without facts being found to support that conclusion".In our view, that passage applies equally where the allegations are of sexual discrimination.On behalf of the Respondents, Miss Simler has submitted that the decision of the Tribunal should be upheld. The Industrial Tribunal is the tribunal of fact. The findings of this Tribunal are clear, either expressly or by implication, and justified them in reaching the conclusion which they did.The Tribunal was not required to give explanations for its finding of fact or to state the law, although it was under a statutory duty to give reasons for its decision. We have considered the submissions of Counsel. The decision of the Tribunal could certainly have been better expressed. It is valuable if findings of fact are set out as such and then the conclusions which are drawn from them. It is important that the Tribunal should set out first what evidence it has heard, second, what evidence it has accepted, third, what conclusions it draws from that evidence and fourth, if the conclusion is by way of inference, what facts have led to the inference. We consider whether the present decision does sufficiently meet the requirements, notwithstanding the admitted fact that the manner of expressing the decision has not been in the sequence or form which we have indicated, applying as we do the authorities to which we have referred.There are express findings of fact. First, and this is not in issue, there were acts of sexual discrimination or harassment. Second, the sales force at the Lincoln premises were totally male orientated. Third, the fact that Miss Bark was a woman grated upon the Sales Manager and the sales force. In our judgment, that is a conclusion which the Tribunal were entitled to reach upon the evidence before them. Fourth, that the dismissal came after a short trial period of employment. Fifth, there was no gross misconduct, either alleged or proved against Miss Bark.The Tribunal do spell out at paragraph 7, last sentence, what is accepted on the employer's behalf as being the reason for the dismissal, namely that the employers were "concerned about the applicant's wilful behaviour and disregard of the necessity of complying with the requirements laid down" . We note in passing that in their written documents the employers had not put their complaint against Miss Bark in that way, or their reason for dismissing her. In their document of 10 November 1993, IT3, they stated that:"The Respondents will specifically aver that they dismissed the Applicant because her performance as a sales executive was below average and that they would have dismissed a male employee at the same time and on the same grounds".On the previous page of that document however, the reason for dismissal is given as "incompetence".

(b) they stated that:

"The Applicant was dismissed because she refused or was incapable of following instructions from those responsible for her training as a result of which she lost potential customers for the Respondent".We have already referred to the evidence which, at the Industrial Tribunal, was given as the reason for refusal. The Tribunal were certainly entitled in assessing what the real reason for dismissal was to have regard to these apparent inconsistencies in the way in which the employers put their case. However, Mr Howlett accurately points out that they did not in fact state that in reaching their conclusions they had regard to those inconsistencies.The conclusion of the Tribunal is stated in the last sentence of paragraph 9:"We believe that the real reason for the applicant's dismissal was that she was a woman".They give reasons for that in paragraph 11. In paragraph 10 they do comment upon the absence of evidence from the Sales Manager and some at least of the sales personnel. While they do not state in terms what conclusion they draw from that, it is, in our view, a reflection of their dissatisfaction with the evidence which was called on behalf of the employers. The employers were of course entitled to call or not to call whom they saw fit, but having regard to the evidence which Miss Bark had given in the circumstances of this case it was undoubtedly surprising that, if the employers sought to contest the case, further evidence was not given to support the suggestion made at the hearing that the true reason for dismissal was Miss Bark's "wilful behaviour and disregard" etc.In our judgment it is implicit in the finding of the Tribunal that they have rejected the explanation which had been given on behalf of the employers. Setting out as we have the relevant paragraphs, they were entitled to reach the conclusion which they did. Further, in our judgment it is clearly implicit that they did apply the correct legal test in their approach to the evidence. They recognised that their finding was by way of inference and therefore correctly set out the facts upon which they felt entitled to make that inference and on which they thought it correct to make that inference, and they have spelt out at paragraph 11 the two particular facts, the absence of any allegation of gross misconduct and second, and extraordinary fact as they found it, and indeed as we find it, against the background which we have described, that the dismissal occurred after such a short trial period. We would like to add that we accept the submission that there are certain statements of fact in the paragraphs which appear to us to have no bearing upon the matter and we do not know why they were stated, including the reference though we have no doubt accurate, to the smartness and alertness of Miss Bark. However, we conclude that the findings of fact and the reason why the inference was drawn, are sufficiently set out in this Tribunal Decision and we find that it was an inference which upon the evidence the Tribunal were entitled to reach. Accordingly, on the question of whether the reason for the dismissal was within the sections to which we have referred, we dismiss this appeal.There is a further appeal against the amount of the award. That was in two parts and an award of £3,880 for loss of earnings. That part of the award is not challenged. There was a further award for injury to the Applicant's feelings and that was an award made under Sections 65 and 66 of the 1975 Act. Section 65(1) states:"(1) Where an industrial tribunal finds that a complaint presented to it under Section 63 is well-founded the tribunal shall make such of the following as it considers just and equitable - (b) an order requiring the respondent to pay to the complainant compensation of an amount corresponding to any damages he could have been ordered by a county court or by a sheriff to pay to the complainant if the complaint had fallen to be dealt with under section 66".And Section 66(4):"For the avoidance of doubt it is hereby declared that damages in respect of an unlawful act of discrimination may include compensation for injury to feelings whether or not they include compensation under any other head".The Tribunal stated in paragraph 14:
"There has clearly been injury to the applicant's feelings. She was considerably distressed at being dismissed in the way she was and after such a short period. By the respondents' actions the applicant has been deprived of a career as a car salesperson. Oddly enough this position carries within our society a greater status than that of either a shop salesperson (which the applicant was considering) or a hairdresser.
We take into account the figure already awarded by way of compensation and decide that an appropriate figure for injury to feelings would be £2,000 and that figure would have been higher had we not awarded the compensation already awarded".That last statement is subject to a cross-appeal and Mr Howlett rightly and inevitably accepts, that the two heads of damage are separate and the award for injury to feelings should not be reduced on account of the substantial figure for compensation awarded. He submits however, that the figure of £2,000 was, in the circumstances, outside the bracket within which an award could properly be made. The leading case is Skyrail Oceanic Ltd v Coleman [1981] ICR 864, Court of Appeal. Lawton L.J. at page 871 stated that any injury to feelings must result from the knowledge that it was an act of sexual discrimination which had brought about dismissal. At page 872 he stated the approach which this Tribunal should adopt towards an award by an Industrial Tribunal under this head:"In my judgment, appellate courts when reviewing the assessment of compensation by industrial tribunals should act as they do when reviewing awards of damages by judges sitting alone. Mr Lester submitted that they should deal with awards made by industrial tribunals in the same way as they dealt with awards made by juries. I do not agree. Industrial tribunals are presided over by chairmen who have legal qualifications. Reasoned decisions are given, including reasons for making awards. The giving of reasons distinguishes their decisions from the verdict of juries. If they have acted on a wrong principle of law or have misapprehended the facts or for other reasons have made a wholly erroneous estimate of the damage suffered, an appellate court can interfere: see Davies v Powell Duffryn Associated Collieries Ltd [1942] A.C.601, 617, per Lord Wright".Miss Simler does not seek to increase the award but submits that it was within the appropriate bracket. The award of damages under this head is, in our judgment, an area where this Tribunal should be slow to interfere with the finding of an Industrial Tribunal which had the opportunity to hear the Appellant, hear the employee give her evidence and assess the relevant considerations. They have an opportunity which we do not of considering what injury there has been to her feelings as a result of their assessment of her when giving evidence, though it is right to add that we know the background facts and the nature of the employment involved in this case.It is common ground that since the Decision in Skyrail there has been a substantial increase in the awards thought proper under this head. That reflects current social movesand also perhaps the removing of any cap upon the maximum awards which can be made by Industrial Tribunals. In our judgment the Industrial Tribunal applied the correct test. They were entitled to find that there had been injury to the employee's feelings. Further, it was an entirely appropriate point to make that the employee had been deprived of a career as a car sales person.It is clear from their findings that the trade was, at any rate, in these premises and it is not disputed more generally, a male preserve and the hurt to her feelings when she had broken into that male preserve, only to find herself shut out of it within about two weeks, was substantial. We do not comment upon the oddness or otherwise of the relative status of this employment and the other employments mentioned in the Tribunal's Decision, but we accept the point made that the career upon which she had so briefly embarked, did carry with it a greater status than other employments open to her and that inevitably increases the injury to her feelings upon losing her job.In our judgment the award of £2,000 was inside the bracket within which the Industrial Tribunal were entitled to make an award and we dismiss too the appeal against the sum of £2,000 under this head. This appeal must be dismissed.We have borne in mind the admitted error of law on the part of the Tribunal in stating, as they did, that their figure would have been higher under this head had they not made a substantial award under the other head. However, we do not consider it appropriate to increase what we regard as a proper and appropriate award under this head in all the circumstances of the case.