Bennett v Sergio Gambi & Ors [1996] UKEAT 34_95_1405

EAT
Bennett v Sergio Gambi & Ors
[1996] UKEAT 34_95_1405 · 1996-05-14
MR JUSTICE BUTTERFIELD : This is an appeal by Miss Bennett against the decision of the Industrial Tribunal sitting at Bristol promulgated on 2nd December 1994, whereby the appellant's complaint that the respondents sexually discriminated against her was dismissed.This tribunal only has jurisdiction to hear appeals from an Industrial Tribunal on a question of law. It is not for us to substitute our views on the facts for the facts as found by the Industrial Tribunal, nor to disturb those findings provided that they were conclusions which a reasonable tribunal properly directing itself could have reached on the evidence. We have that principle firmly in mind in approaching our consideration of the grounds of appeal raised here.The appellant was employed as a bar person at an Italian restaurant in Swindon, operated by the third respondent, Mario's Trattoria Ltd. At the material time the first respondent, Sergio Gambi, was the managing director of the company and the manager of the restaurant. The second respondent, Antonino Coniglio was employed by the third respondents as the restaurant's chef.The appellant took up her employment on 7th March 1994 and left on 23rd April 1994, a total period of employment of about seven weeks. She complained to the Industrial Tribunal that she had been subjected to persistent and regular acts of sexual harassment throughout the period of employment. Some of the acts of which she complained were relatively speaking quite trivial, others were considerably more serious. In particular, she complained of the first and second respondents touching her on her bottom and breasts on many occasions. Additionally she identified specific separate incidents when the first respondent put his hand up her clothing, bit her in fun on her arm, tried to kiss her and cut off a ringlet from the front of her hair. She further alleged as against the second respondent that on two occasion he had pushed the end of a broom handle into her crutch. She first complained to a member of staff, Mrs Blythe Purt a few days before she left.The respondents denied all the allegation save that of cutting the appellant's hair. On that issue alone the first respondent accepted he had indeed cut off a small piece of the appellant's hair, but maintained it was done in fun without any sexual implication and accepted as a joke by the appellant at the time.The Industrial Tribunal heard evidence from the appellant herself for about three hours. She called no witnesses in support of her complaints.The first and second respondents gave evidence denying the truth of the allegations made against them, save to the very limited extent we have outlined.The respondents also called Lorena Spanu who worked for the respondents as a washer-up at the material time. She told the tribunal that she had seen nothing untoward, and had heard no complaint made by the appellant. Mr O'Dowd also gave evidence that the appellant had approached him to obtain a statement from Miss Spanu, who asserted the appellant had witnessed some of the sexual harassment. The appellant also complained to Mr O'Dowd that the first respondent had tried to rape her. There was further evidence from Giani Pau, a waiter at the restaurant. He too saw nothing other than what he described as "fun and frolics" which involved all those working at the restaurant including on occasion the appellant. She did not, he told the tribunal, object.Blythe Purt, to whom the appellant complained, also gave evidence for the respondents, asserting that the appellant was unstable in her private and home life, somewhat lonely and tended to make mountains out of molehills. Again she saw no incidence of sexual harassment involving the appellant or anyone else at the restaurant.Finally, the respondents called Mrs Jackie Ritchings, who worked as a secretary at the restaurant. Like all the other witnesses called by the respondents, she had seen nothing of an offensive or inappropriate nature.There was thus a stark conflict of fact which it was for the Industrial Tribunal to resolve on the evidence.The tribunal approached this task by first finding that the restaurant was a lively place in which the staff often played jokes on one another and in which there was a good deal of banter and familiarity. Having recited the complaints made by the appellant, the tribunal concluded as follows:
"11. ... Looking at the evidence overall we do not consider that it would be safe for us to find, on the balance of probabilities, that the alleged acts of sexual harassment occurred other than that relating to the cutting of the applicant's hair about which more will follow. Therefor, the applicant has, in respect of each of those allegations, failed to discharge the burden of proof which requires that she should prove those allegations on the balance of probabilities."
Setting aside, as the Industrial Tribunal itself did at that point, the question of the cutting of the hair. The first ground of appeal is that the tribunal erred in law in that it made no findings of fact about the major issues in the case. The appellant, it is said, is entitled to clear findings as to whether her evidence is accepted or not. We have been referred by Mr Archer on behalf of the appellant to the well-known case of Meek v City of Birmingham District Council [1987] IRLR 250 . In that case the Court of Appeal sought to categorise the nature of a decision which should be promulgated by an Industrial Tribunal. It was held that although the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draughtsmanship, it must contain an outline of the story which has given rise to the complaint, a summary of the tribunal's basic factual conclusions and a statement of the 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 sufficient account of the facts and of the reasoning to enable an appellate court to see whether any question of law arises. We were also referred to Levy v Marrable Co Ltd [1984] ICR 583 . The head note of that case accurately digests the substance of the judgment of Waite J. to this effect that: where there has been a conflict of evidence at an Industrial Tribunal hearing on a significant issue of fact, the tribunal's view of the evidence had to be plain from a reading of the tribunal's decision as a whole.In our judgment, it is quite clear from the reasons taken as a whole, that the Industrial Tribunal did not accept the evidence of the appellant which evidence they had summarised in setting out her claim. She had to achieve a minimum standard of proof, that is to say on the balance of probabilities. The tribunal held that she had failed to establish that minimum standard of proof. No error of law is disclosed in our judgment in the way that their conclusions were summarised, though it is accepted by the respondent that it could have been put perhaps in a rather clearer form.As is apparent from the decision of Meek to which we have referred, an Industrial Tribunal must set out the reasons which have led it to reach the factual conclusions they did. In this case the Industrial Tribunal made it abundantly plain what their reasoning process was for concluding that the appellant had not satisfied them on the balance of probabilities that her allegations were made out.In reaching that conclusion, the Industrial Tribunal in its full reasons identified three factors. First, the fact that the appellant remained working at the restaurant for seven weeks, notwithstanding the serious sexual harassment she had had to endure throughout that time. Secondly, the demeanour of the appellant when giving evidence before the Industrial Tribunal. And thirdly, the allegation made by the appellant to Mr O'Dowd that the first respondent had tried to rape her, an allegation materially different to the allegations made at the hearing.The appellant submits that the Industrial Tribunal fell into error in taking the first and second of those factors into account. In our judgment the full reasons show that the tribunal was particularly influenced by the first of those factors. At paragraph 7 of the full reasons, the Chairman expresses the tribunal's view as follows:
"7 ... The allegations that she makes against the respondents are extremely serious ones which she says were constantly occurring throughout her employment. If these allegations are true it is surprising that she stayed in this employment for so long. The employment was not well paid and the nature of the allegations is such that if they occurred and she found them objectionable we would have thought that she would have left this employment much earlier."
Later in the full reasons, the following paragraph appears:
"11 ... The employment which the applicant had with the respondents was low paid and not full-time. The allegations made against both Mr Coniglio and Mr Gambi are of the most serious kind. The allegation relating to the broom handle is particularly nasty. We find it difficult to envisage that this applicant would have been prepared to have tolerated such behaviour over a seven week period in order to keep this part-time job in this restaurant."
That citation immediately precedes the rejection of the appellant's complaints.The second factor was also significant in the Industrial Tribunal's reasoning process. At paragraph 8 the Chairman expresses the conclusions of the tribunal as follows:
"8 The applicant gave her evidence in a very assured manner. This seems to us to be somewhat surprising because we would have expected a witness giving evidence of such allegations as these to have shown some degree of emotion, particularly as she was closely cross-examined by the respondents' Counsel for 1 hour 40 minutes. Throughout that cross-examination she showed no emotion at all which we find surprising in view of the nature of the allegations. On the contrary, she gave her evidence in what can be described as a self-assured manner without a hint of embarrassment when she was dealing with the unpleasant allegations she was making."
It is submitted that the tribunal erred in law by taking either of these considerations into account at all in reaching its conclusions. We do not agree. The behaviour of an employee in remaining in employment whilst allegedly subject to sexual or for that matter racial discrimination is a factor which is potentially relevant in determining the truth or otherwise of the allegation. Equally the demeanour of a witness is always a matter the Industrial Tribunal, as the industrial jury, may take into account. In this respect the Industrial Tribunal is no different to a jury hearing a criminal case which may indeed often must have regard to the demeanour of a witness in determining the truthfulness, accuracy and reliability of him or her.The appellant further submits that if the Industrial Tribunal was to rely on these matters, the appellant should have been given an opportunity to deal with each of them in evidence, or at least the appellant's representative should have been alerted to the thinking of the tribunal during closing submissions. We reject that submission. There was no obligation on the Industrial Tribunal particularly where the parties are represented, to give any indication of its tentative thoughts as to the evidence and arguments being addressed to it.However, if the Industrial Tribunal are to rely on matters such as these, it must ensure that it weighs carefully any arguments that might lead to a contrary conclusion. The more so must it do that where the matters have not been addressed directly in evidence and argument.We are unanimously of the view that in this case the Industrial Tribunal failed to conduct the required balancing exercise and in that failure erred in law. As to the length of the appellant's employment, which was after all only seven weeks, the appellant herself said in her written proof:
"I am not trying to say that the people I worked with were horrible. They were not. They were kind and funny and I would have stayed there and been happy if they did not touch me."
In the course of her evidence before the tribunal, when she was plainly being questioned about why she had not left in view of the allegations she was making, she said at one point "you can't just leave and get another job" "I though it would stop." "I wanted to leave but it is not as easy as that. I didn't want to sign on."Other evidence established that the appellant's financial situation was extremely parlous at this time. She had complained of sexual harassment before she left. There was therefore plainly evidence before the Industrial Tribunal from which it could have concluded that the appellant hoped that she could, `tough it out' and hoped the discriminatory acts would stop. She was isolated and alone in Swindon, knowing very few people socially outside work and had no other job lined up, and was desperately short of money and would not be entitled to state benefits if she left the employment voluntarily.All those factors could well have persuaded an Industrial Tribunal that far from supporting the respondent's case, the fact that the appellant stayed in employment only seven weeks, notwithstanding her parlous financial state, pointed in directly the opposite direction. We make it plain that the tribunal were not obliged to reach that conclusion, but they were obliged to weight the arguments. They did not expressly do so and we are not satisfied that it would be safe that we should imply that they did so.In relation to the demeanour of the appellant, again there was an alternative explanation for her behaviour when giving evidence, namely that people cope with embarrassment and stress in different ways. One of those ways is to project a calm detachment which is far removed from the turbulence beneath the exterior. Again the Industrial Tribunal were not obliged to reach that conclusion, but again they were obliged to weigh that possibility. Again they did not expressly do so and we are not satisfied that it would be safe we should imply that they did.These two matters have a cumulative effect on the Industrial Tribunal's decision which had been expressed in the slightly unusual terms to which we have referred. We are satisfied that the decision is flawed by reason of these two errors of law. We note in passing that there were some acts of familiarity which were admitted by the respondents, and further that it is accepted that the appellant herself had asked to be taught the Italian for "do not touch me". On any view, this must have been a marginal decision. We find that it was reached by a chain of reasoning which is significantly flawed. It is a decision which it is unsafe to allow to stand.We cannot substitute our own views of the facts for that of the Industrial Tribunal. We have not heard the evidence. The only solution is for the matter to be remitted in its entirety for determination by a new Industrial Tribunal unless of course the parties can come to terms before such a hearing takes place.In the light of the conclusions we have reached on the grounds of the appeal which we have so far considered, it is unnecessary for us to address the discrete point on the application of Section 11A of the Sex Discrimination Act 1975 to the incident involving the cutting of the appellants hair and we do not propose to deal with that matter in our decision.For those reasons and to that extent this appeal is allowed.