Whitley & Anor v Thompson [1998] UKEAT 1169_97_1405

EAT
Whitley & Anor v Thompson
[1998] UKEAT 1169_97_1405 · 1998-05-14
MR JUSTICE LINDSAY : We have before us the full hearing of an appeal by Miss D. Cross and Mrs J Whitley in the matter Cross & Whitley against Mr John Thompson. Mr Thompson was the employer of those two ladies at the relevant time.The Industrial Tribunal had a hearing on 13 May and 3 July 1997. The Chairman was Mr D.J. Latham and their decision was promulgated on 31 July 1997 and it was the unanimous decision of the Tribunal that all the Applicants' claims failed.It is necessary or desirable to set out in some detail precisely what the claims had been; both the claims that were specified in the two IT1s, one by Miss Cross and one by Mrs Whitley and the claims as were subsequently dealt with at the hearing. I shall first go through the various complaints ascribing numbers to them and calling them event 1, event 2, event 3 and so on, and then picking up the separate references later.On 25 February 1997 Miss Cross lodged an IT1. Miss Cross is now some 24 years of age and her IT1 in effect made three complaints which can be summarised as follows:-Event 1: That Mr Thompson constantly made sexual remarks and asked about her sex life frequently.Event 2: That on 3 December 1996 he rubbed against her, put his arms around her, said "I'm really frustrated", tried to kiss her, that she did not want any part of that and felt sick and upset.Event 3: That he had bullied her into accepting changes in her contract.Those were the three separate claims in Miss Cross's IT1. On the same day, 25 February 1997 Mrs Whitley's IT1 was lodged. She is a lady now of some 36 years of age. The event which I shall call event 4 was:Event 4: That Mr Thompson constantly made sexual remarks to her and asked her about her sex life.Event 5: That he would stalk her, following her at events (that is in relation, I think, to Mr Thompson's business of greyhound racing) and when she went to the stables.Event 6: This was said to have occurred at the end of November 1996. She said that then Mr Thompson came up behind her, grabbed her and kissed the back of her neck, that she did not want any part of it and she felt very angry and distressed.Event 7: That on 1 December 1996 Mr Thompson, in the guise of paying off (I think) a betting debt or some obligation, put money into her breast pocket and in doing so rubbed his hand up and down, feeling her breast.Event 8: That Mr Thompson bullied her into accepting changes in her contract.So there we have eight separate events complained of. The two IT1s were completed in handwriting in the same hand and, at most points, use identical language. Indeed, it would seem to be the case that Mr Potts of the Humberside Law Centre was the author and writer of those IT1s so that, to some extent, one has to regard those IT1s as representing the complaints as they were after professional advice had been taken.Taking those various events and seeing what became of them in the holdings of the Industrial Tribunal, as to events 1 and 4, that is to say, in each case the allegation that Mr Thompson constantly made sexual remarks and asked the ladies about their sex lives, the Industrial Tribunal preferred the Respondent's evidence.The Industrial Tribunal concluded, at paragraph 6 (c), in the Extended Reasons:
"(c) Allegations were made by the applicants to the effect that there were regular conversations of a sexual nature at which reference was made by the respondent to his sexual activities in various parts of the world. ..."
And their conclusion at the end of that paragraph was that:
"... the tribunal find as a fact that the incidents of which complaint was made in that regard, did not in fact happen and prefer the respondent's evidence on these matters."
So those particular forms of complaint, in effect, go no further.Event 2, the rubbing against Miss Cross on 3 December 1996, was found to have occurred to a different extent than had been alleged because, and this is found at paragraph 6 (f) of the Extended Reasons:
"(f) Similarly, there was an incident involving the respondent and Miss Cross on 3 December 1996, but again the tribunal accept that a light peck or kiss was given by the respondent to the applicant, in this case by way of an apology for possibly frightening her and do not accept the version of events that the applicant described. However, again, this was an incident that should not have been allowed to take place on the part of the respondent."
So that is an event complained of and I will have to go back into that in more detail.Complaint number 5, about stalking Mrs Whitley. Her evidence was not accepted.

(h) the Tribunal said:

"Mrs Whitley makes allegation that the respondent was phoning her, pursuing her by way of visiting the paddock that she owned and the like, but the tribunal cannot accept the evidence of this applicant in that regard. ...."
So that complaint goes no further.

(j) They say:

"(j) One specific allegation made by Mrs Whitley was to the effect that on 11 October 1996 there was an incident when she was given £10. She initially alleged that the £10 note was a bonus arising from some winnings of one of the greyhounds at a dog track the previous night and that this was thrust into her breast pocket and the respondent in the process was touching/fondling her breast. It was of note to the tribunal that in her evidence and on cross-examination this applicant changed her version of this story quite substantially and admitted indeed that it could have been an accident that the touching, if any, took place. The tribunal cannot accept the applicant's version of events."
So out goes that for further consideration. As for events 3 and 8, in other words that Mr Thompson had bullied the women into changes in their contract, the evidence of both Applicants was not accepted; the evidence of a Miss Webb was instead accepted, a third party employed also (I think) by Mr Thompson. It was held that there had been no change in working hours and certainly none effected at Mr Thompson's behest. So those complaints go no further.I have so far not mentioned event No.6, which was that at the end of November 1996 Mr Thompson came up behind Mrs Whitley, grabbed her and kissed the back of her neck. It may be that that event, in the evidence, became an event of 4 November 1996, which I shall come on to, but it is not, in terms, it seems, rejected, but the Industrial Tribunal indicates that there were a number of allegations which it had rejected which it does not specifically refer to. In paragraph 7 they begin:
"7 There were many events and incidents alleged by the applicants which are not referred to in this decision as the tribunal does not accept that they were proved or well founded on the part of the applicants. ...."
And at paragraph 13 of the Extended Reasons the Tribunal said:
"13 The onus of proof in cases such as these falls upon the applicants. The tribunal is not satisfied with the applicants' evidence that that evidence is sufficient to show to the tribunal that they have satisfied the burden of proof. ...."
And there are various headings that I have already touched on, events 5, 7 and 8, where Mrs Whitley's evidence was not accepted. This event 6, which I am discussing, was originally said to have involved "grabbing her and kissing the back of her neck" but there is no mention of that in any of the findings by the Industrial Tribunal. I think the best we can do with event 6 is that event 6 did not happen as it was alleged to have happened but that instead there might have been an event in early November 1996 which we will come to.So that means that of the matters raised in the IT1s, only one, which I called event 2, goes forward for further consideration. But there were other activities or events that are mentioned as complaints, but which had not been foreshadowed in the IT1s. Thus, an event was alleged which I shall call event 9; Miss Cross alleged that on or about 7 October 1996 she had been upset, that Mr Thompson had comforted her and he gave her a kiss. That is event 9, which we shall have to go back to.Another is that Mrs Whitley had been invited to dinner by Mr Thompson. That, again, we will have to come back to - event 10 - and the last of the events, event 11, was that Mrs Whitely alleged, and it was held, that on 4 November 1996 he gave her a kiss. That may be the event which overtook what I earlier described as "event 6".A complainant obviously starts off at a disadvantage where the event eventually held to have taken place had not been referred to in the IT1, especially where the IT1 was professionally drawn up, because it obviously is a material weakness in later asking the Tribunal to ascribe significance to an event when it had not even been raised in the IT1, where the complaint has to be described. That is, to some extent, a disadvantage that the complainants here have suffered from in relation to events 9, 10 and 11.So the case, although it had begun as a case of eight complaints in the IT1, eventually was reduced to four separate events of which only one, which I called event 2, had been described in the IT1 and the other ones, events 9, 10 and 11, were three new ones. It therefore behoves us to look in little detail at each of those four events of which complaint could still be made.Let us look first then at event 2. This is the offence against Miss Cross on 3 December 1996. It has to be remembered that it had been claimed to have involved rubbing against her, putting arms around her, saying to her "I'm really frustrated" and trying to kiss her, with all that taking place in the circumstance that she did not want any part of it and felt sick and upset.

(f) That, we have already read beginning:

"f) Similarly, there was an incident involving the respondent and Miss Cross on 3 December 1996, but again the tribunal accept that a light peck or kiss was given by the respondent to the applicant, in this case by way of an apology for possibly frightening her and do not accept the version of events that the applicant described. However, again, this was an incident that should not have been allowed to take place on the part of the respondent."
So the complainant's version of events was specifically not accepted. What did happen was a light peck or kiss by way of an apology for possibly frightening her. The Industrial Tribunal held that it was an incident that should not have been allowed to take place, but there was no express finding that she did not want any part of it, which had been her version of events, and it could be said that in rejecting her version of events the Industrial Tribunal was rejecting the allegation that she did not want any part of it. It would have been better, if that had been intended, that it should have been expressly stated, but it is not. But there is no finding that in fact she felt sick or upset, although that had been her original objection.One can readily assume in Miss Cross' favour that a light peck, even by way of apology, was not a thing that the Respondent, Mr Thompson, would have inflicted on a man and that there was discrimination within section 1(1) of the 1975 Act, but there was no express finding of any detriment to which she was subjected that fell within section 6(2), paragraph (b). Can that detriment be inferred? Inference is best left to those who see and hear the witnesses and who consider what inferences are proper to be drawn from what they see and hear. It is difficult to see it as an error of law not to infer, especially here in that the event eventually found differed substantially from the event as it had originally been claimed to be. It cannot, in our view, be inferred, because the event was an incident that was such that it should not have been allowed to take place, that therefore, inescapably and without any more, it can be taken that a detriment had been suffered. It could be that the sentiment that the Industrial Tribunal expressed was no more than that it was in the highest degree unwise and inadvisable for a male employer to give even a light peck to a female employee in circumstances that gave rise to any doubt.We are far from saying that we would have concluded as the Industrial Tribunal concluded, but that is not a question of any relevance to us. It is difficult, looking to what is the appropriate question, for us to find any error of law in the Industrial Tribunal's treatment of this second event.Turning then to the next one, event 9, which was the kiss to Miss Cross, this was not in the IT1, despite that having been professionally drawn.

(b) as follows:

"(b) An incident was complained about by Miss Cross to the effect that on or about 7 October 1996 she had been upset and the respondent had comforted her and given her a kiss. The tribunal find that this indeed did happen but not in the way suggested by the applicant to the extent that she was extremely upset as a result of her boyfriend leaving her or breaking up with her and the respondent comforted her but that nothing untoward happened in that regard."
The matter is also dealt with in paragraph 10:
"10 The tribunal notes that the respondent admits two incidents of kissing and an incident when he was comforting Miss Cross as a result of her boyfriend having a row with her or terminating his relation with her. Whilst kissing in a situation such as this, even on the respondent's own version of events, is not an appropriate or advisable set of circumstances in an employment situation such as this, nonetheless the tribunal do not find that that constitutes the claims which the applicants make. The tribunal are unanimous that the applicants' claims must fail."
Again, it would be unrealistic to think that there was no discrimination. The Respondent would not have treated a man in the same way, let it be assumed. He was there kissing Miss Cross and, I think, one can assume that the treatment of Miss Cross was less favourable than the manner in which a man would have been treated. But it is to be remembered that the Industrial Tribunal, in terms, rejected the evidence of Miss Cross as to what had happened. They hold that nothing untoward happened. They say it was not appropriate or advisable for the Respondent to have done as he did, but we do not see that that can, of itself, lead to a finding that there was or must have been a detriment suffered. There is no express finding of detriment. There is none, it seems to us, that can be arrived at by way of necessary inference. It cannot be taken here that the Industrial Tribunal regarded the kiss as improper or uninvited or forced upon Miss Cross or upsetting to Miss Cross because, if they had thought that, they surely would not have concluded that "nothing untoward happened". They expressly held that nothing untoward happened. It is therefore impossible, in our view, to find an error of law in their treatment of that event, event 9.Turning to event 10, which is Mrs Whitley being invited to dinner, that is dealt with at paragraph 6 (d):
"(d) The tribunal accept that mention was made by the respondent of an invitation to Mrs Whitley to attend a dinner but we find in this case that was not a repeated and continual invitation by the respondent but was said in a format that was considered by him to be a joke, although it may not have been considered by Mrs Whitley to be a joke, but does not on the facts and the evidence heard, give rise to any support for an allegation of sexual discrimination or harassment."
Again, it is to be remembered it had not been mentioned in the IT1. There is nothing inherent in an invitation to dinner such that it represents a form of unfavourable treatment, and it is difficult too to see it as a detriment unless circumstances are held showing that that is a view that can be arrived at, but there is nothing in the Tribunal's findings that suggests that there is, in relation to this invitation to dinner, anything that can be described as a detriment.The last of the events is event 11, which was the kiss given to Mrs Whitley on 4 November and here what is said is at 6 (e):
"(e) An incident did occur on or about 4 November 1996 when the respondent did give Mrs Whitley a kiss. The tribunal do not accept Mrs Whitley's account of that incident but although they have serious doubts as to the respondent's account of that incident, they do accept that it was not an incident whereby the respondent was sexually attacking or harassing Mrs Whitley but it may well have been an act that should not have been carried out by the respondent in respect of a female employee. However, the tribunal are satisfied that there was no sexual overtones in relation thereto."
So it is to be noted that Mrs Whitley's account was not accepted, nor it may be added, was Mr Thompson's. It was held that it represented neither a sexual attack nor harassment of Mrs Whitley, but then they go on "It may well have been" rather than "it necessarily was", "an act that should not have been carried out by the respondent in respect of a female employee". We do not see ourselves as able to translate that into a finding that there had, indeed, been a detriment within the Act.The Appellants, beyond looking at the separate incidents in the way that we have just done, refer also to paragraph 10 of the Extended Reasons, which, at the risk of repetition, is as follows:-
"10. ... Whilst kissing in a situation such as this, even on the respondent's own version of events, is not an appropriate or advisable set of circumstances in an employment situation such as this, nonetheless the tribunal do not find that that constitutes the claims which the applicants make. The tribunal are unanimous that the applicants' claims must fail."
They raise the question of whether that can be so and yet that a situation in which there was no unlawful sex discrimination had been found to exist. The answer to that question is that events can plainly be inappropriate or inadvisable without their necessarily amounting to a detriment within the section. Without a detriment there is, in this context, sexual discrimination but not unlawful sexual discrimination and there were, in the Industrial Tribunal, no findings of detriment. True it is that the Industrial Tribunal frequently speak of "sexual discrimination or harassment" or "discrimination or harassment" but their usage is, it seems to us, consistent with "harassment" being the word to use in a case where one has not only sexual discrimination but sexual discrimination coupled with detriment. Each use of the expression, in any case, is negative indicating that the Industrial Tribunal was describing something which it did not find to have occurred or which it found not to have been alleged.We do not see anything in the Appellants' favour that emerges and nothing wrong in the IT's use of "harassment" in the way that they used the word and certainly nothing that amounts to an error of law.Changing tack somewhat, as they are perfectly entitled to do, the Appellants take the point raised in a citation in Meek v City of Birmingham District Council [1987] IRLR 250 , per Bingham LJ, and, in particular, make the familiar complaint that parties are entitled to be told why they have won or lost. Without setting out the citation that is sufficient, I think, to summarise it. But, in answer to the Meek v City of Birmingham point, it has to be remembered that at several points the Appellants' evidence was expressly rejected and at several points the evidence of or on behalf of the Respondent was expressly preferred. Secondly, the chief complaints in the IT1 were rejected.It is not entirely clear what the Appellants would have described as their primary detriment but to judge from their IT1s, inferentially it was being said, it would seem, that they were being bullied into accepting changes in their contractual terms, in part at least because of their resistance to sexual advances. But if that was a primary detriment, then that had been specifically rejected by the Industrial Tribunal.Looking at each separate particular incident, as we have done, no detriment was expressly found to have existed, and none that, it seems to us, can be found to have existed by way of necessary implication from the findings of the Industrial Tribunal. The Industrial Tribunal points out correctly that the burden of proof was upon the Appellants and they point out that in their view that burden was not satisfied.In those circumstances we do not feel able to say that, within the Meek v City of Birmingham test of the parties being entitled to be told why they have won or lost, that the Appellants can truly say that they do not know why they lost.Let this be clear though, neither the conclusion of the Industrial Tribunal nor anything that we at the EAT would wish to add is any form of condonation, any form of licence, to any practice of kissing between employer and employee. There is no kissers' charter and this case certainly should not be read as one. We do not say that even a light peck, which was found to have existed here in one incident, cannot amount to unlawful sexual discrimination. It is quite plain that even a light peck can be such as to amount to a detriment, but there does need to be a finding of detriment or, alternatively, for a case to emerge (and it would be for the Appellants to show it) that no Industrial Tribunal, properly instructing itself, could have concluded from the evidence other than that there had been a detriment. That is always a burden of great weight upon an appellant, a very difficult kind of case to prove and made even more difficult here (difficult to the point of impossibility, we would say) where there have been so many conclusions on the facts such that the versions alleged by the Applicants had been rejected and the version put forward by the Respondent preferred.Discrimination without detriment in this context leads to no complaint at law. Industrial Tribunals are, of course, alive to the distaste or revulsion that may be occasioned even by an attempt at a light peck or kiss. But, equally, they are entitled, within their role as a jury of sensible and experienced folk, to conclude that, notwithstanding some treatment less favourable than would be accorded to a man, there was nonetheless no detriment suffered and thus, although discrimination, no unlawful sexual discrimination. No doubt Industrial Tribunals will be very cautious on approaching that issue but there is quite plainly no rule that if section 1(1)(a) is satisfied, then that, without more, is enough. Quite plainly, section 6(2) adds a further requirement of detriment which, in this particular case, has given rise to the difficulty for the Appellants. Here there is no relevant finding of that further requirement of detriment, nor can we conclude, bearing in mind, especially, the number of occasions on which the Applicants' evidence was rejected and bearing in mind the heavy burden that such a case involves (and, I might add, in the absence also of Chairman's notes) that the Industrial Tribunal here could have concluded only that there had been a detriment. We find ourselves unable to go that far.Accordingly, we detect no error of law and accordingly we dismiss the appeal.