West Africa Publishing Company v Davenport [1998] UKEAT 1306_97_3001

EAT
West Africa Publishing Company v Davenport
[1998] UKEAT 1306_97_3001 · 1998-01-30

JUDGE C SMITH QC :

This is an application by the West Africa Publishing Company ("West Africa") for leave to proceed to a full hearing of their appeal against the decision of an Industrial Tribunal held at London (South) over eight days, as we calculate it, in September 1997, when the Industrial Tribunal decided that the complaints made by Ms Katharine Davenport of discrimination on the grounds of sex and unfair dismissal were proved and the Industrial Tribunal awarded her the sum of £36,410 by way of compensation for discrimination on the grounds of sex and for unfair dismissal against West Africa who were, in fact, the first Respondents. Mr Nwagbaso was the second Respondent and there is no appeal by him since there was no award against him.We will come on to deal in due course with the submissions that have been made to us by Mr Ioannou, appearing as solicitor today on behalf of West Africa. We reminded ourselves that if there is any arguable point of law whereby it could be said that the Industrial Tribunal had erred in any way including, of course, any misapprehension with regard to the facts, then West Africa are entitled to proceed to a full hearing of their appeal.We proceed to summarize the nature of the case as it appears to us from the very detailed findings of the Industrial Tribunal. We should emphasize that the relevant facts are set out over a very large number of paragraphs, in fact, between paragraphs 2 and 43 of the decision and, in our judgment, the way in which those facts are set out and, indeed, the way in which the whole of the extended reasons are set out, indicates that this was a very careful decision by the Industrial Tribunal. We do no more than summarize the essential facts and should this matter go further, of course, reference should be made to the full facts as set out in the Industrial Tribunal's decision.Putting the matter very shortly, by reference to those findings of fact, what it comes to is that Ms Davenport had been employed by the West Africa Publishing Company as a sub-editor in relation to the weekly magazine "West Africa ", published by the Applicant, from 4 March 1994 until she resigned in March 1997. As the Tribunal found, the second Respondent, Mr Nwagbaso, was her immediate superior, putting it simply, he was her boss. The Industrial Tribunal found that over a prolonged period until she had to stop work in September 1995 due to illness, which the Industrial Tribunal found on the medical evidence had been brought about by such conduct, the second Respondent had subjected Ms Davenport, on the findings of the Industrial Tribunal, to a continuing course of serious sexual harassment which the Industrial Tribunal found to constitute, having applied the relevant law, acts of discrimination on the grounds of sex. The Industrial Tribunal found that a formal complaint was made by Ms Davenport on 14 December 1995 and that there was an inconclusive and, on the findings of the Industrial Tribunal, unsatisfactory enquiry which took the form of a one-day hearing on 30 January 1996. The upshot of the inquiry was that no more than an oral warning was given to the second Respondent and it was suggested by management to Ms Davenport that this should be a sufficient safeguard to her and she was welcome to return to work on those conditions.By this stage there was before the Tribunal cogent medical evidence that Ms Davenport's stress-related illness had been caused by the sexual harassment she had suffered and the Industrial Tribunal found that she did not feel confident to return to work under the conditions proposed her employers to her. By 5 March 1996 Ms Davenport had instituted these proceedings before the Industrial Tribunal.She remained away from work on sick leave until February 1997 when she was able, with the consent of West Africa, which she was careful to obtain, to undertake a journalistic assignment in Uganda. On her return there was what the Industrial Tribunal found to be a further act of sexual harassment amounting to an act of discrimination by the second Respondent who, by this time, had been promoted to editor or senior editor and who could not be removed from office by anybody in London. Such matter would have to be dealt with in Africa.In consequence of this behaviour Ms Davenport resigned from her employment on 10 March 1997 in circumstances which the Industrial Tribunal held to amount to a constructive dismissal. Having found the facts as summarized by us and it is only a summary, the Industrial Tribunal then carefully listed the issues which they had to decide in paragraph 44 of the decision. There were altogether some seven issues which they had to determine. They then proceeded carefully to consider each issue and reach conclusions in favour of Ms Davenport and adverse to West Africa and the second Respondent in relation to each of the issues. Putting the matter, again, shortly, they held that there had been a course of conduct by way of sexual harassment amounting to sexual discrimination inflicted upon Ms Davenport by the second Respondent and that West Africa were vicariously liable for it (which was issue number two) and that the same applied to the incident on 7 March 1997. They rejected the contention that West Africa had a defence under s.41(3) of the Sex Discrimination Act 1975. They found that West Africa had discriminated against Ms Davenport on the grounds of sex in failing adequately to deal with or resolve her complaints in January 1996 in the conduct of the enquiry to which we have referred above. They held that the acts of discrimination by sexual harassment amounted to a continuing course of conduct until July 1995 and that it was just and equitable to extend the time for the complaint relating to that course of conduct. They also considered other issues in relation to whether the various heads of complaint of discrimination were or were not in time. They then proceeded to consider the issue of compensation and they followed the guidance in the case of(1) Armitage,(2) Marsden and(3) HM Prison Service v Johnson [1997] IRLR 162 and set out verbatim the particular guidelines set out at paragraph 27 of the decision at page 165 in their paragraph 88 and in the light of their analysis of the medical evidence which is to be found at paragraphs 81-86 of their decision, they awarded a high figure of £17,000 for injury to feelings on the basis that on the medical evidence, Ms Davenport had suffered a serious illness for several years in consequence of the harassment based upon the medical evidence, including psychiatric evidence, which was before them. They made an award relating to past financial losses at the figure of about £8,900 and they calculated a continuing loss for three months which would take it through to the end of 1997 presumably, at £666 and then they arrived at a projected loss for 1998 of £5,364, so that the total award, when it includes such matters as the basic award, and the finding they made in relation to the basic award and once interest is added on appropriately, came to a total figure £36,410, which they ordered to be paid by the first Respondent, the employers.It is against that background which we have set out that we come to consider the various points that have been put forward to us by Mr Ioannou on behalf of the Applicant, West Africa, for leave to proceed to a full hearing.The first point is that the Industrial Tribunal erred in respect of their holding that the West Africa were vicariously responsible for the misconduct, if we may describe it that way shortly, of the second Respondent. The Industrial Tribunal dealt with that at paragraphs 51-55 of their decision and complaint is made that they applied an objective test subjectively, as it was put in argument. We cannot accept that submission. In our judgment it is plain that the Industrial Tribunal approached the matter entirely correctly. They set out the relevant section at paragraph 51, they carefully considered the most recent and very important authority of the Court of Appeal, namely, Jones v Tower Boot Co Ltd [1997] IRLR 168 and they applied the guidance set out in that case. In particular, they noted the last paragraph of Waite LJ's judgment which is in these terms at paragraph 43 at page 172:
"The tribunals are free, and are indeed bound, to interpret the ordinary, and readily understandable, words 'in the course of employment' in the sense in which every layman would understand them. This is not say that when it comes to applying them to the infinite variety of circumstance which is liable to occur in particular instances - within or without the workplace, in or out of uniform, in or out of rest-breaks - all laymen would necessarily agree as to the result. That is what makes their application so well suited to decision by an industrial jury. 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."
In our judgment that is exactly the approach the Industrial Tribunal followed and they concluded that, as the essence of their finding at paragraph 54:
"It was accepted that work, either in the office or out of it, might, in this world of journalism, extend to the very end of the day, and into the night."
They were clearly looking at the situation in the context of the world of journalism and, of course, that is what this case was all about and in those circumstances we cannot see any ground at all for interfering with their decision.There is then a submission that they erred in relation to the statutory defence under s.41(3). The Industrial Tribunal, it is said, should have held that the West Africa had made out the statutory defence. They failed to so find. But in our judgment, here again the Industrial Tribunal dealt with the matter properly and carefully in paragraphs 56-59 of its decision. They set out the statutory test, they noted correctly that it was for the employer to prove that he took such steps as were reasonably practicable not simply reasonable steps but such steps as were reasonably practicable and they correctly characterized that as applying a high standard upon the employer and they went on to find that in this particular case, as they stated at paragraph 58, there never were any steps taken by West Africa to prevent sexual harassment taking place. They were no written terms of employment which incorporated a disciplinary code or an equal opportunities practice statement or policy. In our judgment, in the light of everything that is stated there in paragraph 58, which we do not need to cite in full the Industrial Tribunal took the correct approach and reached an unassailably correct decision in relation to that matter.The next point, which is a linked point to this, is that the Industrial Tribunal were wrong or erred in their approach to the enquiry and we accept that this was a difficult point because, of course, it was not simply enough for the Industrial Tribunal to find that there were defects in the way the enquiry was held, they had to go on to find that this was an independent act of discrimination on the part of West Africa. In our judgment they were entitled so to conclude. In our judgment they looked at the matter with care in paragraph 65. They dealt with it in this way:
"On this issue, we therefore accept that the conduct of the enquiry itself had the defects which we have set out. We accept the argument that Miss Davenport was treated less favourably than a man would have been treated in similar circumstances. It is difficult to make a valid comparison, having regard to section 5 of the Sex Discrimination Act 1975. We have to assume a hypothetical man bringing a grievance in similar terms against a superior. It seems to us that the employers would have found that situation much easier to consider. On balance, we consider that the approach of those holding the enquiry was influenced adversely to the interest of Miss Davenport by their misunderstanding of the true position, and they thereby treated her less favourably on the grounds of sex."
That was against a background where the Industrial Tribunal had found that those conducting the enquiry who were, in fact, all men, did not have any rule or definition of sexual harassment in front of them, they did not know what standard of proof to apply and they generally were not aware of the necessity for holding a proper enquiry in relation to this kind of allegation. The Industrial Tribunal, in those circumstances, in our judgment, although it was a difficult question, were entitled to conclude in the manner they did in paragraph 65 and we can see no ground for interfering with their decision.We then turn on to the final point, which relates to the overall quantum of damages and particularly the sum of £17,000 which was awarded for injury to feelings. That is strongly criticised by Mr Ioannou and he submits on behalf of West Africa that that was excessive and he seeks to contrast it with the situation in the Johnson case itself. However, in our judgment in the light of the findings of the Industrial Tribunal and the unchallenged findings relating to the medical evidence which we do not propose to summarize but which are clearly set out in paragraphs 81-86, the Industrial Tribunal were entitled, having carefully set out the principles and the guidelines which are themselves set out in paragraph 27 of the Johnson case, to conclude that this was a very bad case of sexual harassment which had caused very serious illness to Mr Davenport and, in those circumstances, it being ultimately a matter for the Tribunal, we cannot find any grounds for criticism of their approach. Nor can we find any valid criticism relating to the continuing loss of £666 or the award for 1998. In our judgment, on the detailed findings of the Industrial Tribunal in relating to continuing loss which are set out at paragraphs 100-102, we cannot see any grounds for challenging the legal correctness of their decision.For all those reasons, in our judgment, this application fails and falls to be dismissed.