AB v CD [1997] UKEAT 1272_96_1311

EAT
AB v CD
[1997] UKEAT 1272_96_1311 · 1997-11-13

JUDGE PETER CLARK :

Both parties are agreed that the decision under appeal in this case should be allowed and the matter be remitted to a fresh Industrial Tribunal for re-hearing. Since we are being asked to endorse an order by consent which has the effect of overturning a reasoned decision of an Industrial Tribunal, we shall follow the practice set out in paragraph 13(4) of the current Employment Appeal Tribunal Practice Direction, based on the procedure outlined in J Sainsbury Plc v Moger [1994] ICR 800, and have ourselves heard argument to determine whether there is good reason for making the agreed order. Such a procedure is particular apposite where the decision appealed from is that of an Industrial Tribunal sitting at London (North) under the chairmanship of the very experienced and highly respected former Regional Chairman, Mr Geoffrey Heggs.

The Facts

For present purposes the following material facts were agreed between the parties before the Industrial Tribunal. The Applicant/Appellant was employed by the Respondent as a cook from and since 24 April 1989. On 10 April 1995 she saw, at her place of work, a poster which had been defaced. The alteration to that poster amounted to an offensive and sexually derogatory description of the Appellant. She complained to her employers who carried out an investigation.On 19 April she presented an Originating Application to the Industrial Tribunal complaining of unlawful sex discrimination. The material complaint related to the poster incident. It was accepted by the Respondent that on the balance of probabilities one of their employees defaced the poster and that for the purposes of the preliminary issue before the Industrial Tribunal, to which we shall refer, the description of the Appellant added to the poster could amount to a "detriment" within the meaning of Section 6(2)(b) of the Sex Discrimination Act 1975 ("the Act").

The Preliminary Issue

The Respondent took a preliminary point, namely that it was not vicariously liable for the act of its employee in defacing the poster within the meaning of Section 41(1) of the Act, which provides:
"Anything done by a person in the course of his employment shall be treated for the purposes of this Act as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval."
That preliminary issue came before the Industrial Tribunal on 13 September 1996. In a decision with Extended Reasons promulgated on 18 September 1996 the Tribunal held that the Respondent was not vicariously liable for the relevant act of its employee. In so holding the Tribunal directed itself in accordance with the judgment of the Court of Appeal in Irvine and Irvine v The Post Office [1987] IRLR 289, and the subsequent majority decision of the EAT in Tower Boot Co Ltd v Jones [1995] IRLR 529, to the effect that as a matter of law the concept of vicarious liability provided for in Section 41(1) of the Act, identical to that under Section 32(1) of the Race Relations Act 1976 , which was considered in the cases of Irving and Tower Boot , was the same as the common law concept applied to the expression "in the course of his employment", that is to say, the question was whether the employee was carrying out an authorised act, albeit improperly. On this basis the Tribunal found that the act of defacing the poster was not incidental to or a consequence of anything that the employee was employed to do. It was an example of wilful misconduct for which the Respondent was not vicariously liable.Following promulgation of the Tribunal's decision in this case the Court of Appeal heard and determined the Applicant's appeal in the case of Tower Boot : see [1997] ICR 254 . That appeal was allowed, the court holding that the doctrine of employer's vicarious liability at common law was not a justifiable interpretation of the expression "in the course of his employment" contained in Section 32(1) of the 1976 Act, and, by extension we think, in Section 41(1) of the Act. As Waite LJ put the matter at page 265 D:
"The application of the phrase will be a question of fact for each industrial tribunal to resolve, in the light of the circumstances presented to it, with a mind unclouded by any parallels sought to be drawn from the law of vicarious liability in tort."
We shall apply the most recent decision of the Court of Appeal in Tower Boot . It follows that we accept the joint submission of the parties that the Industrial Tribunal, although correct in its self-direction on the state of the law as it was understood at the time, fell into error in applying the common law test of vicarious liability as a matter of statutory construction, as explained by the Court of Appeal in Tower Boot .

Order

In these circumstances we shall allow this appeal and remit the matter for rehearing by a fresh Industrial Tribunal. It will be for the Industrial Tribunal to give directions as to what issue or issues are to be determined at the next hearing. As to the issue of vicarious liability under Section 41(1) of the Act, it will be for the Tribunal to determine that question in accordance with the Court of Appeal guidance in Tower Boot .