Babbea v Oxfordshire Learning Disability NHS Trust [1997] UKEAT 266_97_2107

EAT

Babbea v Oxfordshire Learning Disability NHS Trust

[1997] UKEAT 266_97_2107 · 1997-07-21

MR JUSTICE KIRKWOOD : Mr Babbea seeks to appeal from a decision of an Industrial Tribunal at Reading that sat on seven days between June and August 1996, and that dismissed his complaints of unfair dismissal, and discrimination on the grounds of race and sex. It gave its extended reasons on 7th January 1997.

This is a preliminary hearing of the appeal in which Mr Babbea has to show to us that he has an arguable case to go to a full hearing.

The finding of the Industrial Tribunal was that Mr Babbea had been dismissed on the ground of gross misconduct and that his dismissal was fair. It was Mr Babbea's case that it was the dismissal of him, the loss of his job that was the act of discrimination. Accordingly the whole case focused on the dismissal. The tribunal did consider other possible aspects in relation to discrimination in paragraphs 17 and 18 of its extended reasons. No complaint is made in this proposed appeal about the approach taken in principle.

The gross misconduct was an extensive history of sexual behaviour by Mr Babbea towards vulnerable young female staff at the unit or units where they worked and where he was team leader; looking after clients with moderate to severe learning difficulties in residential care.

The employer, the Oxfordshire Learning Disability NHS Trust, plainly carried out very full and careful investigations, the fairness of which was not called in question. It was a Miss Daniels who carried out the interviews in the investigation, and presented a report to Mrs Turner, the Trust's general manager. Mrs Turner then held a disciplinary hearing which took three days and resulted in Mr Babbea's dismissal. The appeal process was exhausted without any alteration in the decision.

Mr Babbea's first point is that the Industrial Tribunal ignored what was described to us as an EU Direction about sexual harassment regulations. That seems to us to be a reference to the Commission Code of Practice on Protecting the Dignity of Women and Men at Work, a code of practice on measures to combat sexual harassment. In paragraph 2 of that definition it says this:

"Sexual harassment means "unwanted conduct of a sexual nature or other conduct based on sex affecting the dignity of women and men at work". This can include unwelcome physical, verbal or non-verbal conduct.

Thus, a range of behaviour may be considered to constitute sexual harassment. It is unacceptable if such conduct is unwanted, unreasonable and offensive to the recipient; a person's rejection of or submission to such conduct on the part of employers or workers (including superiors or colleagues) is used explicitly or implicitly as a basis for a decision which affects that person's access to vocational training or to employment, continued employment, promotion, salary or any other employment decisions; and/or such conduct creates an intimidating hostile or humiliating working environment for the recipient.

The essential characteristic of sexual harassment is that it is unwanted by the recipient, that it is for each individual to determine what behaviour is acceptable to them and what they regard as offensive. [ And then the sentence to which Mr Babbea attaches weight. ] Sexual attention becomes sexual harassment if it is persisted in once it has been made clear that it is regarded by the recipient as offensive, although one incident of harassment may constitute sexual harassment if sufficiently serious. It is the unwanted nature of the conduct which distinguishes sexual harassment from friendly behaviour, which is welcome and mutual."

Mr Babbea's point is that to the extent that he made any sexual remark or overture, which I do not think he admits, that was not converted from sexual attention to sexual harassment because he received no complaints about it from a recipient of his attention.

The Industrial Tribunal gave some consideration to this, as indeed had the employer, and there is reference in the extended reasons. The tribunal quote from a letter to Mr Babbea from Mrs Turner confirming her findings and dated 10th July 1995. The letter contains this:

"As defined by Unison, sexual harassment is any unwanted conduct of a sexual nature that is offensive to the recipient. I have concluded that sexual harassment has occurred, that you have subjected younger, vulnerable members of staff in a junior position to yourself to sexual harassment on a continuous basis over a sustained period of time. This was done on a one to one personal basis.

This sexual harassment has taken the following forms:- physical, verbal and non-verbal. Your actions have had serious adverse affects on these members of staff, with detrimental knock on effects on their job performance and service delivery to clients.

I believe that you were aware of the effect of your actions as some of the witnesses clearly stated they had asked you to stop and had also tried various means to deflect your unwanted and unreciprocated attentions."

Mrs Turner made a report for the use of the Appeal Panel in which she said (and the tribunal refer to it):

"... the strength of feeling exhibited by the witnesses when describing the incidents overwhelmingly convinced me that there was no doubt at all that they did indeed take place, were of an unwanted and unreciprocated nature and caused the people concerned extreme distress."

The tribunal also considered a submission made by Mr Sharma on Mr Babbea's behalf, as to the effect that Council Directive 76/207/EEC:

"Although the applicant's conduct under consideration was labelled by the respondent as "sexual harassment", the respondent was under no duty to apply a test appropriate to a situation where an employee is complaining of sex discrimination against an employer. The applicant's conduct had to be judged on its merits, irrespective of any label which was attached to such conduct.

The Tribunal is satisfied that both the investigation and the disciplinary procedures were properly and fairly conduct, that Mrs Turner's findings reflect her honest belief and that there were ample grounds upon which she could come to the conclusion she did."

Thus, even if the definition of sexual harassment which is contained in the Code of Practice, was a relevant key definition for the purpose of this appeal, the findings of the tribunal are that it was satisfied. The tribunal, however, did not regard that definition in any sense determinant and I have given their reasons for saying that.

It seems to us that those matters dispose conclusively of the first point Mr Babbea seeks to raise.

In respect of race discrimination, Mr Babbea seeks to argue that the Industrial Tribunal ignored a relevant comparator. In argument before us, Mr Babbea referred to a white colleague who was transferred for a first offence and offered demotion for a second offence. The offences, we were told, were some form of stealing. It seems that Mr Babbea regards that misconduct as more serious than his own.

The Industrial Tribunal, however, dealt with the comparator point. In paragraph 10 of its extended reasons it said:

"10 The applicant cited other employees who had committed disciplinary offences and had not been dismissed, but the Tribunal is satisfied on the evidence that the offences involved were wholly different in nature to the applicant's conduct and that in the only previous case with similar facts a while male nurse had also been dismissed."

I think that Mr Babbea would quarrel with the assertion that the offences were of a wholly different nature, because although the case to which he has referred us consisted of matters to do with stealing, he also told us that there were in fact some uninvestigated allegations of sexual treatment by that man. Really that takes us no further, because the question of comparisons is whether disciplinary outcome is of a markedly different nature because of different racial characteristics; and uninvestigated and unsubstantiated allegations do not come into to it. It certainly cannot be said for a moment that the comparator point was ignored by the Industrial Tribunal or that it adopted a wrong approach in respect of comparators.

Also on the race point, Mr Babbea complains to us that the investigation was carried out by his immediate superior whilst in all other cases he said that such investigation were carried out by somebody from outside.

Miss Cindy Daniels, the clinical resource manager, was Mr Babbea's line manager. Her task here was to investigate a number of complaints by way of interviewing possible witnesses and getting from them statements. There is no suggestion at all that she acted improperly in anyway in doing so. Miss Daniels assembled the material and put it before Mrs Turner together with summaries, conclusions and recommendations. She submitted to Mrs Turner all the notes of interviews and the statement obtained.

The Industrial Tribunal dealt with the care with which Miss Daniels reported to Mrs Turner. It was clearly a balanced and careful piece of work. In the extended reasons the tribunal said this:

"8 ... It has not been suggested by or on behalf of the applicant that there was any procedural defect or unfairness in the conduct of the disciplinary hearing or the appeal hearing. The decision for the applicant not give oral evidence at the disciplinary hearing, but instead to rely upon his written statement submitted prior to the hearing, was an unusual one, but we are quite satisfied that it was a decision freely made by the applicant after consultation with his experienced union representative. Importantly, we are quite satisfied that Mrs Turner conscientiously read the applicant's submissions prior to the hearing and took them properly into account in coming to her findings.

The Tribunal has carefully considered the submissions made by Mr Sharma on behalf of the applicant, but finds that they are either misconceived or mistaken. It rejects the criticism made of the investigation that Miss Daniels took statements only from those who were "in favour of the respondent". We find that the investigation was carried out with great care, thoroughness and fairness by Miss Daniels; it was reasonable for her to interview those who made complaints against the applicant or who were named by such complainants and in the course of so doing she interviewed all the available employees who had worked under the applicant at number 69 Neithrop Avenue, as well as some others who had worked with him at other residences. An exception was Miss Maureen Middlemass, and she was not interviewed in relation to the allegations of sexual harassment because it was considered that her view of the applicant might be biased and/or unreliable since she had made complaints about him on a separate matter which was also being investigated. ..."

It is quite clear to us that Mr Babbea has no arguable point on this matter of Miss Daniels carrying out the investigations that could possibly go forward to a full hearing.

Mr Babbea then seeks to make a point about the credibility of witnesses and the disciplinary process. The tribunal, however, as we have said, considered the disciplinary process with great care and concluded in the passage to which I have already referred that it was "satisfied that both the investigation and the disciplinary procedures were properly and fairly conducted, that Mrs Turner's findings reflected her honest belief and that there was ample ground upon which she could come to the conclusion she did."

The tribunal did not of course hear for itself all the various complainants as to Mr Babbea's misconduct towards them. That was not their business. Their business was to look at the nature of the investigation that had been carried out and it did so most carefully.

Finally, Mr Babbea seeks to argue bias by the Chairman. He has sworn a long affidavit which we have considered and to which the Chairman has replied. This was one of those difficult cases in which neither Mr Babbea nor his representative, Mr Sharma, were experienced in Industrial Tribunals, or seemed to the Chairman and his colleagues to have a clear focus on the points of law and issues that were of relevance. It sometimes happens that the effect of a Chairman seeking to have the case focused, and seeking to prevent it wandering off with irrelevancies, may be that is perceived as demonstrating a bias or predisposition against aspects of an applicant's case. But that is a misunderstanding of the Chairman's duty and how it is his job to keep the hearing addressing the relevant matters, relevant that is to the decision that the Chairman knows has to be reached, rather than necessarily matters which the applicant finds exercising his own mind but which do not go to the core of the case.

To a very considerable extent, Mr Babbea's affidavit illustrates that that is what was happening. We have, indeed, been through Mr Babbea's affidavit carefully, to see whether there is anything in it to show material irregularity in the conduct of the hearing such as may have led the tribunal to a wrong conclusion. But long and detailed though the affidavit is, we find nothing in it that falls into that category. Mr Babbea fails to demonstrate to us that he has an arguable point for upsetting the decision of the Industrial Tribunal, with the result that the appeal will be dismissed at this stage.