Ojeda v Beverley Hills Bakery & Gift Baskets [1997] UKEAT 1251_97_1512

EAT

Ojeda v Beverley Hills Bakery & Gift Baskets

[1997] UKEAT 1251_97_1512 · 1997-12-15

JUDGE PETER CLARK :

In this case Ms Ojeda appeals against a decision of the London (North ) Industrial Tribunal sitting on 30th May and 22nd July 1997, dismissing her complaint of unlawful sex discrimination brought against her former employer, the respondent, Mr Mark Peterson. Extended reasons for that decision are dated 26th August 1997.

Between July 1996 and her dismissal on 8th January 1997 the appellant was employed as manageress of the respondent's bakery. The nature of her complaint was that she was sexually harassed on a number of occasions by a delivery driver, Mark Johnston, for whose actions the tribunal held the respondent was vicariously liable.

There was a complete conflict of evidence as to whether or not the acts complained of took place. The appellant alleged that they did, and that she had complained to the respondent about Johnston's behaviour. Johnston denied the acts complained of, and the respondent denied that the appellant had reported these matters to him. The appellant called two witnesses, neither of whom expressly supported any of the material allegations of harassment.

The tribunal dealt with the conflict at paragraph 14 of their reasons in this way:

"14 There is a direct conflict of evidence on this point. The Applicant making certain allegations set out in her IT1 and in her evidence and the Respondents Mr Peterson deny that he knew anything about these allegations and the alleged harasser Mr Johnston denies that these events ever took place. The Applicant has not been able to bring any evidence from any of her colleagues to support her claim. We therefore prefer the evidence of the Respondent's witnesses and conclude that the events as stated did not take place in the way as alleged by the Applicant."

Accordingly, the complaint failed.

In this appeal Mr Crosfill's principal submission is that the tribunal erred in rejecting the appellant's factual account on the basis that she was unable to lead any corroborative evidence. He relies on the observation made by Neill LJ in King v GB China Centre

[1991] IRLR 513

, 518, in the course of giving guidance to the Industrial Tribunals recently endorsed by the House of Lords in Glasgow City Council v Zafar [Times. 8th December 1997] that it will be unusual to find direct evidence of discrimination. We think it follows that in cases of sexual harassment it will often be one person's word against the other.

In these circumstances it is wrong to require an appellant to produce corroborative evidence in order to establish her claim. It is for the Industrial Tribunal to decide which witness or witnesses is or are to be believed. This tribunal, submits Mr Crosfill, has failed to carry out that essential fact finding exercise.

In our view the point is arguable. It depends upon a reading of the Industrial Tribunal's decision which ought to be considered at a full appeal hearing. The further grounds of appeal develop the point further and may also be argued at the full hearing. Accordingly this appeal will proceed to such a hearing. It will be listed for half a day. Category C. Skeleton arguments to be exchanged between the parties and copies lodged with this tribunal at least 14 days before the date fixed for the full appeal hearing.