Higgins v Home Counties Newspapers Holdings Plc [1998] UKEAT 1048_97_1712

EAT

Higgins v Home Counties Newspapers Holdings Plc

[1998] UKEAT 1048_97_1712 · 1998-10-08

MRS JUSTICE SMITH : This is an appeal from the decisions of an industrial tribunal sitting at Bedford reached after a 5 day hearing during March and April 1997 when they dismissed the appellant's complaints that the respondents, her former employers, had discriminated against her on the grounds of her sex in May 1996 and, in dismissing her in September 1996, had victimised her because she had made a complaint of sexual harassment.

The respondent owns four groups of regional newspapers. The appellant worked for the respondent from 1991 until her summary dismissal on 23 rd September 1996. From 1991 until 1995, she worked on the South Essex Recorders. In September 1995, she moved to the Hitchin office, for which she was responsible, with the title of General Sales Manager. From November 1995, her position was General Manager (Designate) for North Hertfordshire.

From 1990, Mr David Steed was the general manager of the South Essex Recorders and the appellant's manager when she joined the company. The appellant's case was that from 1993, when she began to work more closely with Mr Steed, he began to send her cards and gifts, including flowers and cassette tapes. She did not wish to receive these attentions but felt unable to stop them as she did not wish to jeopardise their working relationship. She regarded Mr Steed as a mentor and role model. She claimed that if she failed to respond to his gifts and other attentions, he would sulk and make her working life difficult. In 1995, Mr Steed was promoted to Regional Manager, based at Luton. At his request, the appellant was invited to take charge of the Hitchin office, which was under his control. She agreed to the move. After this they were no longer working in the same office, but Mr Steed paid regular visits to Hitchin. His attentions continued. In particular in February 1996 he gave her a hand written book entitled 'Observations Book' inscribed with the words:

'These observations have been Inspired by Karen Higgins'

. The tribunal saw this book. In May 1996, he made a sexually provocative remark when he saw her sucking the end of her pen. Also in May, he reacted angrily when she told him she was going on holiday with her partner. She considered that he was jealous.

In June 1996, the appellant made a complaint of sexual harassment by Mr Steed to Mr Coppen-Gardner, the Group Managing Director and Mr Steed's superior. She told him about acts of harassment which had occurred since 1993. Although she had a friend with her as she made the complaint and although, as the tribunal found, Mr Coppen-Gardner received her complaint in an entirely appropriate manner, the appellant was nonetheless extremely distressed and cried a good deal. At the end of the meeting, which took place in a motor car at a railway station, as the appellant did not want to meet him on company premises, Mr Coppen-Gardner advised her to take a week's compassionate leave and promised to investigate her complaint. He then said:

'I would put my arm around you, but I can't do that can I?'

Mr Coppen-Gardner was later to explain that he said this as the appellant seemed so upset and he wished to express his compassion for her.

On his return to his office Mr Coppen-Gardner told Mr Steed of the allegations and forbade him to contact the appellant. The next day he asked the appellant to set out her complaints in writing and assured her that they would be fully investigated under the company's grievance procedure. The appellant submitted a statement and provided some supporting evidence, which we understand comprised some of the cards and gifts she had received from Mr Steed. She was interviewed formally on 19 th June after which she agreed that her complaints could be put to Mr Steed. The appellant was later to complain that this interview was intimidating and more like an interrogation than a grievance hearing. Mr Coppen-Gardner said it was formal and professional. The tribunal accepted his evidence. After that meeting Mr Steed was ordered to work from home and to avoid contact with the appellant. He was to attend a disciplinary interview on 24 th June. He provided a statement of his case in advance. At the interview he provided evidence that the appellant had reciprocated his attentions by sending cards and gifts to him. She had accepted the offer of personal loan at a time when she was under financial pressure. She had confided in him that she had undergone a termination of pregnancy. At the end of the interview Mr Steed was ordered to continue working from home. Mr Coppen-Gardner then treated his investigation as concluded. There were no other people to interview. He did not go back to the appellant for her comments on Mr Steed's response.

Mr Coppen-Gardner formed the view that there had been a close relationship between the two and that the appellant had regarded Mr Steed as a mentor. Due to the conflicting accounts he had heard and the evidence of the exchanges of gifts and cards, he found it impossible to judge exactly what had taken place. He was satisfied that Mr Steed had behaved inappropriately and that disciplinary action was necessary. However, he was unable to conclude that Mr Steed's conduct had amounted to sexual harassment. Mr Steed was given a final written warning; he was moved to a post with no line management responsibilities, in an area geographically separated from the appellant. This move was regarded as a demotion.

The appellant was informed of the outcome of the proceedings. She was advised of her right to appeal if she was dissatisfied. She was offered counselling 'to assist her with her evident emotional distress and to encourage her to develop appropriate working relationships with colleagues'. The appellant was later to complain that she was 'appalled' at the treatment she had received from the respondents. Her complaint had not been properly investigated and she regarded the offer of counselling as a sanction against her. The tribunal found that the investigation had been fair and proper, in accordance with the company's procedures and that her perception that a sanction had been imposed was unfounded.

The appellant had returned to work after the grievance hearing but on 25 th June her doctor signed her off as unfit to work by reason of stress. On 2 nd July, the appellant's solicitor wrote to the respondent seeking an extension of time in which the appellant could appeal; he relied on her ill health. He also informed the respondent that all communications with the appellant must be through him. The respondent extended the time for appeal and accepted the restriction on contacting the appellant with reluctance. In the event, the appellant did not appeal the respondent's decision.

On 25 th July 1996, while still absent from work, the appellant filed a complaint at the industrial tribunal in which she alleged that she had been subject to sexual harassment and sex discrimination. The particulars were that in May 1996, Mr Steed had made an inappropriate and sexually provocative suggestive comment when he saw her sucking the top of her pen and also that he had reacted in a disapproving manner when she had told him she was going on holiday with her partner. Second she complained that on 11 th June 1996, Mr Coppen-Gardner had said 'I would put my arm round you but I can't do that can I?' She alleged that she was still suffering damage as the result of this harassment and discrimination.

The appellant remained off work sick until 28 th August. During her absence there had been some reorganisation of the business. Mr Testa had been appointed as the Regional Managing Director. He had appointed Mr Matthews to oversee Bedford, Milton Keynes and Hitchin and to be the General Manager of the Hitchin office during the appellant's absence. On the day of her return to work, Mr Testa arranged to meet the appellant at the Bedford office in order to introduce himself to her and to explain the new arrangements. He told her there was to be a meeting the next day to discuss the business plan with all the General Managers. The appellant then asked if she could take the following day off (that would be the 30 th August) to which Mr Testa agreed. She also mentioned her wish to take the day off on 2 nd September.

Before the tribunal the appellant gave evidence that when she arrived at the Hitchin office, Mr Matthews had his papers all over her desk. He refused to brief her on the situation at Hitchin and he conducted meetings with members of staff but excluded the appellant. The tribunal rejected this evidence. On the 29 th August, when Mr Testa arrived at the Hitchin office, he found that the appellant had gone home leaving a number of memoranda for his attention. In these she asked Mr Testa to confirm what her role was to be. As she saw it, Mr Matthews was doing her job and was preventing her from doing it. She had gone home until the situation was resolved. She pointed out that she had been appointed as General Manager Designate for a 6 month probationary period in November 1995 and she now sought confirmation of her post.

On 30 th August, Mr Testa wrote expressing his regret that the appellant had gone home on 29 th rather than speak to him. She replied asking for clarification of her position and informing him that she would be taking the day off on 2 nd September. On 3 rd September a meeting was arranged between Mr Testa, Mr Matthews and the appellant at which Mr Testa wished to ensure that the appellant understood the new management structure. This was not a disciplinary meeting and Mr Testa was surprised that the appellant asked to record it on tape. At the end, the appellant was so upset that she went home for the day rather than return to the office.

During the following week another problem arose between the appellant and Mr Matthews. During the appellant's absence in July, a Mr Gibbs appointed two men as Field Sales Representatives to the Entertainment section of the business. When he took over, Mr Matthews reviewed the appointments, decided they were inappropriate and redeployed the two men. On her return, the appellant expressed the view that the two should be reappointed. On 10 th September, Mr Matthews consulted Mr Testa who told him that he, Mr Matthews, should make it plain to the appellant that the decision about these two men was to be his and not the appellant's. There was a conflict of evidence about what happened thereafter. Mr Matthews said that he made the position clear to the appellant; the two men were not to be reappointed. The appellant said that he did not say this and she reappointed them, believing that she was acting within the scope of her usual authority. When Mr Testa found out about the appointments, he set in motion an investigation which in due course led to disciplinary proceedings against the appellant for disobedience to a direct order. The hearing took place on 23 rd September. Mr Testa was faced with a conflict of evidence. After speaking to Mr Matthews again, he decided that he accepted his account and found that the appellant had wilfully disobeyed an instruction. He dismissed her for gross misconduct. Although the appellant was told of her right to appeal, she did not exercise it on the advice of her solicitor.

On 27 th September, the appellant lodged a second application at the tribunal. At this time she was still advised and assisted by solicitors. In this second IT1, she complained of 'Sex discrimination and sexual harassment resulting in unfair dismissal pursuant to section 104 of the Employment Rights Act 1996 and breach of contract'. Section 104 of the ERA 1996 provides that an employee should be regarded as unfairly dismissed if the reason for the dismissal is that the employee has brought proceedings to enforce a relevant statutory right. Under section 104(4), the relevant statutory rights are rights conferred by ERA 1996 and various rights under the Trade Union and Labour Relations (Consolidation )Act 1992 . They do not include the making of a complaint of sexual harassment. It will readily be seen that the claim in the second IT1 did not make sense in that the appellant had not brought any proceedings to enforce a right under either ERA 1996 or TULRA 1992 . However she had made a complaint under the Sex Discrimination Act 1975 . The particulars of her claim explained that she had been dismissed on 23 rd September 1996; that her dismissal was a direct result of her having enforced her rights under section 104 of ERA 1996 ; that her dismissal was a breach of contract in that the respondent had failed to carry out its duty of good faith between the date of her first complaint and the date of dismissal; and that the respondent had dismissed her on the basis of an unproved and unfounded allegation of misconduct. Finally she claimed damages for injury to her health and feelings due to the continuing discrimination and sexual harassment by the respondent. It appeared that her solicitors had made an error in referring to section 104 of ERA 1996 .

In January 1997, the appellant's solicitors provided further and better particulars of this claim Under the particulars of breach of good faith, they referred to the way in which Mr Coppen-Gardner had begun to refer to the appellant as 'acting general manager' instead of 'general manager'. Also they complained at the manner in which the complaint of sexual harassment had been handled and at its result. They claimed that there was no evidence of collusion with Mr Steed; the appellant was a wholly innocent party and there should have been a finding of harassment. They complained that the appellant had not had the chance to reply to Mr Steed's allegations. Also they complained about Mr Matthews being in the appellant's office when she returned to work and that he had cleared her papers out. They said her dismissal was a breach of good faith as she had been dismissed for carrying out duties which prior to her complaint of harassment would not have been queried. Nothing was said to clear up the confusion about section 104 of ERA 1996.

On 3 rd February 1997, the respondent's solicitor wrote asking the appellant's solicitor to specify which statutory right the appellant intended to rely on. They replied the following day but the position was no clearer. They said:

"The relevant sections that my client wishes to rely on with regards to the exercise of her rights under section 104 relate to section 86 of ERA 1996 ( which provides for minimum periods of notice) as the damage claimed in the initial IT1 includes loss for not receiving minimum notice. Furthermore the further statutes which she relies on are section 95 of ERA which is the right not to be unfairly dismissed which she has been, section 98 in that the dismissal was not fair and section 126 as the dismissal was both unfair and discriminatory."

In fact it is section 94 which provides for the right not to be unfairly dismissed but that is perhaps an unimportant error. Section 126 provides only that if compensation is awarded in respect of any act for both unfair dismissal and sex or race discrimination, there shall not be double recovery. In view of this confusion, it is not surprising that Miss Mountfield, who appeared at the tribunal for the respondent, sought to clarify what the appellant wished to allege at the hearing. By this time the appellant had no solicitor and was assisted by her partner. Miss Mountfield told us that had the appellant been legally represented she would have taken the point that the second IT1 did not disclose a complaint known to law. As it was, she approached the appellant and Mr Wilson and asked if what they were really seeking to allege was that she had been victimised as the result of having made a complaint of sexual harassment. She told us that the appellant and Mr Wilson appeared to agree that this was so. Accordingly, this was explained to the tribunal at the start of the hearing and the tribunal recorded that they had been told by both parties that the appellant's second claim was that she had been victimised contrary to section 4 of the Sex Discrimination Act 1975 .

The appellant's main case on the first claim was that she had been sexually harassed by Mr Steed. She had not named Mr Steed as a respondent but held the respondent liable for his actions under section 41(1) of the Sex Discrimination Act 1975 . The respondent submitted that Mr Steed's behaviour did not amount to sexual harassment but, if it did, they were not liable for it as they had taken such steps as were reasonably practicable to prevent Mr Steed from doing the acts found to constitute sexual harassment or from doing in the course of his employment, acts of that description. They relied on section 41(3) of the Sex Discrimination Act 1975 .

The tribunal found that Mr Steed's actions were not merely innocent acts of friendship which arose out of a long and harmonious working relationship, but constituted sexual harassment. They so found despite the facts that the appellant did not complain to senior management and reciprocated Mr Steed's gifts. They rejected the appellant's allegation that Mr Coppen-Gardner's conduct on 11 th had amounted to sexual harassment. They accepted his evidence that he had only wished to express his sympathy for her.

The tribunal found that the respondent had conducted a proper investigation of the appellant's complaint according to the procedures. This was so, although Mr Coppen-Gardner had come to a different conclusion about Mr Steed's conduct than had the tribunal. He had not thought it amounted to sexual harassment whereas the tribunal did. Nonetheless, the respondent had acted properly in taking disciplinary action against Mr Steed for his inappropriate behaviour.

The tribunal considered whether the respondent had made out its defence under section 41(3). A proper response to a complaint was not enough. The respondent had to show that they had taken such steps as were reasonably practicable to prevent the sexual harassment. The tribunal considered the respondent's evidence about their equal opportunities policy and their policy for dealing with sexual harassment. The policy was incorporated in the company handbook and the tribunal found that staff were made aware of it. Sexual harassment was treated as gross misconduct in the disciplinary code. Managers were given awareness training. Both Mr Steed and Mr Coppen-Gardner had attended a course. The tribunal found that the respondent could not have been expected to do more. The nature of Mr Steed's harassment was such that no one knew about it until the appellant complained. When she did complain the respondent took appropriate action. This showed that the respondent took its policies seriously and acted upon them. They were not 'paper policies'. They found that the respondent had made out its defence under section 41(3). They dismissed the appellant's claim of sex discrimination.

The tribunal then turned to the appellant's second complaint, which they understood to be that she had been victimised on account of having made a complaint of sexual harassment. She complained of two particular matters as evidence of victimisation. First, she contended that the reorganisation of the management structure in her absence was designed to undermine her position. She was being 'sidelined'. She said that it was apparent from the time she made her complaint that the respondent's attitude to her changed. Mr Coppen-Gardner had suddenly started calling her 'General Manager Designate' whereas before she complained he had called her 'General Manager'. Before her complaint she had received excellent reports and there was no doubt that she would be confirmed in her post. On her return, she had found Mr Matthews at her desk. Much of her evidence on this was rejected by the tribunal whose finding on this issue was:

"We reject any suggestion that these changes were deliberately planned and that the restructuring of the division was a deliberate act to make the applicant's return to her post more difficult."

The appellant's second complaint was that the respondent had victimised her by taking disciplinary proceedings over a matter which, she claimed, would normally have been dealt with in a round table discussion. She had suggested that the problem over the reappointment of the two salesmen should be resolved in this way but the respondent was determined to proceed with disciplinary proceedings. They would not have done so, had she not made a complaint of sexual harassment. The tribunal rejected this, finding that Mr Testa had taken a serious view of her wilful disobedience to an instruction. He had not been involved in the complaint of harassment; indeed he had not known the appellant at that time. They said that:

"there was no evidence to support the allegation that the only reason that disciplinary action was taken was because she had previously complained."

They dismissed her claim of victimisation. Finally, the tribunal dismissed her claim for wrongful dismissal, observing that as the respondent had been entitled to dismiss her summarily for gross misconduct, she was not entitled to pay in lieu of notice.

In this appeal, Miss Pollard took three main points. The first concerned the application of section 41(3) of the SDA 1975 in the appellant's first claim. Miss Pollard submitted that the tribunal had erred in holding that the Equal Opportunities Policy and the awareness training course could amount to 'such steps as were reasonably practicable' to prevent Mr Steed from harassing the appellant. This was because the policy was first published in May 1995 and the awareness training course took place in April 1995. Before that date the respondent had taken no steps to prevent their employees from committing acts of sexual harassment. She submitted that it was clear from the decision that the tribunal had found that Mr Steed had harassed the appellant from 1993 onwards, as she had alleged. Therefore, even if the steps taken in 1995 were such as were reasonably practicable, the respondent had no defence at all to acts of harassment before April 1995. In any event, she submitted, the finding that the steps taken in 1995 were all that could be expected of the Respondent was perverse. The course contained only a half hour lecture on issues of sex and race discrimination including equal pay and recruitment. It must have been superficial. Further the Tribunal did not consider the European Commission Recommendation on the Protection of the Dignity of Women and men at work ( 91/131/EEC ) and the Code of Practice made thereunder which provides guidance to employers on measures to prevent sexual harassment in the workplace. The Code includes a section on the training of managers and supervisors. The aim should be to 'identify the factors which contribute to a working environment free of sexual harassment and to familiarise participants with their responsibilities under the employer's policy and any problems they are likely to encounter.' Miss Pollard submitted that as the national courts of this country are bound to take recommendations of Community institutions into account, the tribunal should have taken the recommendation and the code into account in deciding what steps would have been reasonably practicable for the employer to take. In further support for her argument that the tribunal's decision was perverse, Miss Pollard submitted that they wrongly took into account the appropriateness of the respondent's response to the appellant's complaint as showing that they took their policies seriously. This postdated the acts of harassment and could not therefore be relevant to the tribunal's consideration under section 41(3).

In answer to this submission, Miss Mountfield for the respondent argued that the appellant's complaints of sexual harassment were limited to the events of May 1996 as pleaded in her application. Although she had been allowed to give evidence of the whole course of Mr Steed's conduct, that had been admitted by way of background and the tribunal could only make an order in respect of the pleaded acts of discrimination. Therefore, it was open to the tribunal to find that the steps taken by the respondent in April and May 1995 were such steps as were reasonably practicable to prevent Mr Steed's acts of harassment. Their decision could not be attacked as perverse. It was a question of fact and there was evidence on which it could be based. The tribunal had not erred in drawing an inference as to the respondent's attitude towards their equal opportunities policy from their manner of responding to the appellant's complaint.

Miss Pollard replied that the tribunal appeared to have made findings of sexual harassment relating to the whole period since 1993. They had said nothing either at the hearing or in their reasons about the case being limited to the events of May 1996. That may well be the case. It may be that the appellant, who was represented at the hearing by her partner Mr Wilson, who is not legally qualified, did not realise that her evidence about events before May 1996 was admitted only as part of the history of events. But we have no doubt that that was the case. The IT1 is clear; the only allegations are those of May 1996. Had the appellant wished to complain of the whole course of Mr Steed's conduct, the respondent would have argued that her earlier complaints were out of time. The appellant might have been able to defeat that argument. But the point was never taken because it was clear to the respondent that the claim was limited to the acts of May 1996. The background evidence must have been admitted to enable the tribunal to assess Mr Steed's motivation. Without that, it would have been almost impossible for the appellant to persuade the tribunal that Mr Steed's conduct in May 1996 amounted to sexual harassment. It is perhaps unfortunate that the tribunal did not make the position clear to the appellant and Mr Wilson. However, we recognise that there were other preliminary matters which this tribunal had to clarify before it began. It would also have been helpful had the tribunal said in their reasons that although they found as a fact that Mr Steed had harassed the appellant over the whole period from 1993, they could only make an order in respect of the pleaded acts. Although claims brought before industrial tribunals were intended to be dealt with without formality, the law has developed in such a way that some framework and rigour are necessary in order that cases may be kept within proper bounds. This is not the first time we have been made aware of this problem. We would urge tribunal chairmen to establish the parameters of the case before they begin to hear the evidence so that no misunderstanding can arise.

As the claim related to acts in May 1996, the tribunal was entitled to conclude that the steps taken by the respondent in April and May 1995 were such steps as were reasonably practicable to prevent Mr Steed from sexually harassing the appellant in May 1996. They were entitled to regard the awareness training as adequate. As for the European Commission Recommendations and Code of Practice, we think the tribunal might well have been aware of their contents and had them in mind when deciding this issue. The document was not brought specifically to their attention during this case and they cannot be criticised for not mentioning it. However, we endorse Miss Pollard's suggestion that this is a document which should inform the thinking of industrial tribunals faced with issues of this kind. We accept Miss Mountfield's submission on the inferences which may properly be drawn from the respondent's response to the appellant's complaints. The decision reveals no error of law on this point and the finding under section 41(3) is not perverse. This ground of appeal fails.

The second and third grounds of appeal related to the appellant's second claim and they are in a sense interrelated. Miss Pollard submitted that the Tribunal had misdirected itself when applying the test for victimisation. Also she claimed that the tribunal had completely failed to deal with the appellant's claim for 'ordinary unfair dismissal', that is unfair dismissal contrary to sections 94/98 of ERA 1996 . She submitted that they ought to have done as the appellant had raised this in her IT1 and Mr Wilson had addressed the tribunal in relation to it. Miss Mountfield submitted that these two grounds of appeal must be regarded as alternatives. The appellant could either complain of the direction on victimisation or she could complain of the tribunal's failure to deal with her claim of unfair dismissal, but she could not do both. Whilst it may be arguable that the appellant had brought a claim for section 94/98 ERA 1996 dismissal in her second IT1, (although the point was far from clear) once the basis and ambit of her second claim had been established at the start of the hearing, it was clear that she was not then alleging 'ordinary' unfair dismissal but victimisation, including dismissal, by reason of the fact that she had made a complaint of sex discrimination. That, we accept, is the effect of the agreement recorded by the tribunal in paragraph 1 of the Reasons.

The appellant now claims that she had not understood this to be the case and thought she was claiming both dismissal due to victimisation and 'ordinary' unfair dismissal. She says in an affidavit sworn for this appeal that she and Mr Wilson were extremely busy preparing their bundle of documents when Miss Mountfield spoke to them before the hearing and they had not realised that by agreeing that their case on victimisation was properly to be brought under section 4 of the SDA 1975 , they were abandoning the claim for 'ordinary' unfair dismissal.

We have a good deal of sympathy with parties who have to appear at Industrial tribunals without the benefit of competent legal representation. Employment law has become extremely complex. The statutory provisions relating to discrimination and victimisation are not easy. Also we recognise the stress and anxiety which litigants in person experience. Having said that, the Courts have set their face against allowing litigants in person to be treated in a different way from represented litigants. To do otherwise would be unfair to those who pay for representation.

We are satisfied that Miss Mountfield acted entirely properly and in a spirit of helpfulness when she asked the appellant to clarify the ambit of her case. Without that help, the appellant might have found herself in an impossible position, seeking to rely on a statutory provision, section 104 of ERA 1996 , which had no relevance to the case she wanted to put. We accept too from Miss Mountfield, that she did not expect to deal with a claim for section 94/98 ERA 1996 unfair dismissal. The respondent had not prepared any evidence in relation to the dismissal procedures. The tribunal have plainly acted on the understanding that the second claim was one of victimisation alone. It may be that there was some confusion in the appellant's mind, although we doubt that there was. We think that in her own mind the appellant's claim was one of victimisation, not 'ordinary' unfair dismissal. We say that because the claim set out in the second IT1 and in the particulars provided by her solicitor are far more consistent with a complaint of victimisation than 'ordinary' unfair dismissal. We do not say that it would not have been possible for the appellant to mount a claim for section 94/98 unfair dismissal. It would. There was no reason why the appellant should not have pursued both types of claim at the same time provided that she made her intention plain. But we do not think she ever intended to do so. In any event, we are quite satisfied that the IT acted properly, fairly and judicially when they accepted from both parties the agreement as to the basis on which the case was to be put. It is now too late for the appellant to seek to retract from that agreement. We reject that ground of appeal and turn to consider Miss Pollard's criticism of the tribunal's approach to the question which was before them, namely victimisation.

The claim of victimisation was brought under section 4 of the SDA 1975 , which provides:

"(1) A person ('the discriminator') discriminates against another person ('the person victimised') in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has - (a) brought proceedings against the discriminator or any other person under this Act or the Equal Pay Act 1970, or (b)..... (c).... (d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act.... or by reason that the discriminator knows the person victimised intends to do any of those things, or suspects the person victimised has done, or intends to do, any of them.

This appellant had brought proceedings against the respondent alleging sexual harassment and she had made an internal complaint, so the 'protected acts' in sub-sections (a) and (d) were of possible application.

Miss Pollard submitted that section 4 is similar in construction to section 1 (1) (a) of the Act and requires the tribunal, in considering its decision, to go through a procedure similar to that required for a case under section 1 as explained in King v British China Centre

[1991] IRLR 513

. In effect they must ask themselves whether the applicant has proved that she (who has made a complaint of sexual harassment) has been treated by the respondent differently from the way in which another person (who has not made such a complaint) has been treated or would have been treated by the respondent in similar circumstances. If so, they should ask whether the difference in treatment was due to the fact that the applicant had made the complaint of sexual harassment. It is unlikely that there will be any direct evidence of the difference in treatment being due to the applicant having made a complaint, so the tribunal should consider the respondent's explanation for the difference in treatment and if it is unsatisfactory it would be open to the tribunal to infer that the difference in treatment was due to the fact that the applicant had made the complaint. Miss Pollard submitted that this tribunal had failed to go through this process of reasoning and their decision on this point was therefore flawed. On the allegation concerning the reorganisation in her absence, they had simply said that it was not victimisation because the respondent had not deliberately restructured the management so as to make her return to work more difficult. On the dismissal, they found no victimisation because there was no evidence that disciplinary action was taken only because of her previous complaint of harassment. There was no attempt to compare the appellant's treatment with that of any other person actual or hypothetical. We accept that is so.

Miss Mountfield submitted that such a process of comparison would have been unrealistic. The circumstances were so unusual. To illustrate the point, Miss Mountfield observed that in order to compare the appellant with a suitable hypothetical person, the tribunal would have had to consider how the respondent would have treated an employee who they believed had been deliberately disobedient to a direct instruction, who they believed had lied about what she had done, who had previously had a good work and disciplinary record but who had not made a complaint of harassment against her manager and had not brought proceedings against her employer for sex discrimination. Miss Mountfield submitted that this was an impossible task. We agree that it is a very difficult task and in the circumstances of this case, a highly theoretical one as there is no readily imaginable control group. We do however think that that is what the statute requires.

Miss Mountfield submitted that the correct approach was that set out in Nagarajan v London Regional Transport

[1998] IRLR 73

. There the Court of Appeal had said that before there could be a finding of victimisation there must be evidence to support a finding that the person taking the decision was consciously motivated to act as he did, against the interest of the person victimised, by reason of that person having done the protected act. Therefore, submitted Miss Mountfield, if there was no evidence of conscious motivation by the decision maker, there could not be a finding of victimisation and it matters not that the tribunal have not gone through the (highly artificial) process of comparison.

In response, Miss Pollard submitted that Nagarajan was wrongly decided in the Court of Appeal and she informed us that it was under appeal to the House of Lords. On further reflection, we are minded to agree with Miss Pollard that Nagarajan may have been wrongly decided. In our respectful view, the form of section 2 of RRA 1976 and section 4 of SDA 1975 (the victimisation provisions), is closely related to the form of the section 4 of the RRA and section 1 of the SDA (the discrimination provisions). Discrimination is different treatment by reason of race or sex. Victimisation is different treatment by reason of having done a protected act. It has never been suggested that discrimination requires a conscious motivation. We cannot see why victimisation should. To discriminate on the ground of race or sex, the discriminator must know that the person against whom he discriminates is of a different race or of a different sex; but it need not be shown that at the moment he makes the discriminating decision he is consciously motivated by racism or sexism. Before there can be a finding of victimisation, plainly the victimiser must know that the complainant has done the protected act but we do not see why it need be shown that at the moment of making the decision complained of he was consciously motivated by the fact that the complainant has done the protected act. Nor can we see why it is necessary for the tribunal to conclude that the respondent victimiser has acted as he did only by reason of the applicant having done the protected act. By analogy with the discrimination provisions, it should in our view, be enough if he was consciously or subconsciously influenced by the applicant having done the protected act.

However, for present purposes all this is academic. The Industrial Tribunal and Employment Appeal Tribunal are bound by the Court of Appeal's decision in Nagarajan . That being so, we accept Miss Mountfield's submission that the tribunal were right to look for 'conscious motivation' and if they did not find it they were entitled to reject the allegation of victimisation. They found no evidence of conscious motivation and, subject only to the final ground of appeal, perversity, they were entitled as the law presently stands to reject the claims of victimisation.

Miss Pollard's final submission was that the tribunal's conclusion that there was no evidence of conscious motivation was perverse. The tribunal found that Mr Testa had not been in any way involved with the appellant's previous complaints. He had not even known the appellant until her return to work at the end of August 1996. However, Miss Pollard submitted that there was much evidence, all ignored by the tribunal, that at all times he was advised by Mr Allan Short, the Personnel Manager. Mr Short had advised Mr Coppen-Gardner in the early stages, when the appellant first made her complaints about Mr Steed. He advised about the investigation of her grievance and the disciplinary proceedings against Mr Steed. It was he who maintained contact with the appellant through her solicitors during her period of absence. He became closely involved again when disciplinary proceedings were begun against the appellant. Miss Pollard submitted that Mr Short was involved in the decision to dismiss; if it was not actually his joint decision with Mr Testa, at least he influenced it. Also he had every opportunity to turn Mr Testa against the appellant. The tribunal had not taken heed of this, she complained, and the findings of fact that the disciplinary proceedings were not brought because of the previous complaint were perverse.

We do not know whether the tribunal took particular note of the position and potential influence of Mr Short. They did not deal with the point in their reasons. However, it does not appear that the point was expressly relied on. The closing submissions of Mr Wilson, which we have seen, show that the appellant's main case was that there was a concerted effort by Mr Testa, Mr Short and Mr Matthews to get rid of the appellant. The tribunal must have rejected that. It does not appear that Mr Wilson suggested that Mr Short influenced Mr Testa so that he was turned against the appellant because of the previous complaint. Had this been suggested, the tribunal might have dealt with the point in their reasons. The fact that they did not does not mean that the decision is perverse. It was open to the tribunal to take the view they took about Mr Testa's decision to discipline and dismiss the appellant. This ground of appeal also fails and the appeal must be dismissed.