Julienne v Post Office & Anor [1998] UKEAT 829_97_1902

EAT

Julienne v Post Office & Anor

[1998] UKEAT 829_97_1902 · 1998-02-19

JUDGE SMITH QC :

This is an appeal by the applicant before the Industrial Tribunal, Mr Michael Julienne, a temporary postman at the time, against a decision of an Industrial Tribunal held at Liverpool over three days in April 1997, when the Industrial Tribunal held that the appellant's complaint against the first respondent, the Post Office, for compensation for acts of racial discrimination failed. Extended reasons were sent to the parties on 20th May 1997.

The Industrial Tribunal found that certain incidents which had taken place at the appellant's work place, as described to them by the appellant in his evidence before them, did constitute racial discrimination by fellow workers of the appellant, but the Industrial Tribunal held:

(1) that such incidents had not been done by such fellow workers in the course of their employment within the meaning of that expression in s.32(1) of the 1976 Act; and

(2) in the alternative, that the first respondent had in any event established the statutory defence under s.32(3) of the 1976 Act.

Put shortly, and it is no more than a summary of careful submissions which were made to us on each side by experienced Counsel, the submission is made to us by Counsel for the appellant, Mr Westgate, that:

(1) the Industrial Tribunal failed to give sufficient reasons for its decision that the acts of the appellant's fellow workers were not in the course of their employment. So, he submitted, the losing party, the appellant, could not see whether the Industrial Tribunal had applied the proper test in the light of Jones v Tower Boot Co Ltd

[1997] ICR 254

CA , so that the matter, he submitted, should be remitted to an Industrial Tribunal for fresh consideration; and

(2) that the Industrial Tribunal's reasoning in paragraphs 5 and 7 of their decision indicates that they did not apply the correct test of reasonable practicability in considering the statutory defence under s.32(3). In particular, with regard to this second submission, it was submitted to us that since the Industrial Tribunal found that the first respondent's policy statement and procedures were only generally well-known and implemented; and further, that a manager, Mr McGregor, had not strictly followed such procedures, it follows that they had misapplied the test; and further, that their criticisms in paragraph 7 of the lack of any disciplinary investigation or procedure into the incidents described by the appellant was inconsistent with their findings in paragraph 5 and with the correct application by the Industrial Tribunal of the reasonable practicability test to be satisfied by the employers. So that for these reasons as well, it was the submission of Counsel for the appellant that the case should be remitted for a fresh hearing before an Industrial Tribunal.

Counsel for the respondents, Mr Altham, submitted that with regard to the first argument, there is nothing to indicate that the Industrial Tribunal did other than follow the correct legal principle in deciding as a finding of fact by an industrial jury that the incidents were not in the course of employment; and that they have sufficiently complied with the well-known requirements of Meek v City of Birmingham

[1987] IRLR 250

With regard to the statutory defence, it is submitted by Counsel for the first respondent, that the Industrial Tribunal correctly referred themselves to the wording of s.32(3) and reached conclusions of fact which they were fully entitled to reach; and that the defence had been made out for the reasons they gave.

Before expressing our conclusions and judgment on these rival submissions, it is necessary to refer to the decision.

With regard to that aspect of the matter we make clear that we do not go right through the findings of fact by the Industrial Tribunal, and should it be necessary to do so, then reference should be made to the Industrial Tribunal's own decision for the details of the findings of fact which they made. Putting the matter shortly, the Industrial Tribunal found the relevant facts in paragraph 3 of their decision. They recorded that the appellant had commenced employment on a short-term basis, as a temporary postman, on 7th May 1996, it being intended that that employment should run until 27th September 1996. At subparagraph 3(c) the Industrial Tribunal set out in detail a number of important matters relating to what can be compendiously described as the first respondent's anti-harassment policies and procedures. They referred, in particular, to the relevant terms in the contracts of employment relating to harassment as a form of discrimination amounting to gross misconduct. They quoted extensively from a very substantial document headed the "Royal Mail Equal Opportunities Policy" a follows:-

"(c) The Terms and Conditions of Employment signed by the parties referred in paragraph 18 to Harassment being regarded as a form of discrimination, to be treated as gross misconduct, to be dealt with under the Conduct, Grievance and Harassment Procedures. The Equal Opportunities Policy provided that the first respondent would promptly investigate all complaints of discrimination and harassment, taking appropriate action where necessary. The Royal Mail's Statement on Harassment states there is no obligation on an individual to take matters further if he/she does not wish to do so, but if the incident is considered serious, the matter should be reported to his immediate line manager as soon as possible (Para 6.6). All interviews should be fully recorded and dated (Para 6.15). The statement provides for a formal investigation (Para 7), and Movement of an Alleged Harasser (Para 7.4). There are Notes for Personnel Managers which state there is a specified personnel manager responsible for dealing with harassment cases, who is to be fully conversant with the relevant procedure (Para 3.1.7). There is a network of volunteers known as "Listeners" with whom employees can speak independently (R79-81 refers)."

Apart from the matters to which the Industrial Tribunal expressly drew attention, it is apparent to us that the procedures contained in the Royal Mail Equal Opportunities Policy document particular under the heading "Resolution of Harassment Cases" provide, putting the matter very shortly, that every effort should be made to resolve a given situation involving harassment on an informal basis. There is a "first step" procedure and then a "second step" procedure if the incident is serious or if the harassment continues which stipulates that the matter should be reported to the line manager of the person allegedly being harassed. There follow detailed provisions for counselling and discussion with both sides. It is only when all that fails, and of course when the discrimination is serious, that the matters falls to be dealt with under the Royal Mail Formal Disciplinary Procedure.

Having made those findings, the Industrial Tribunal made relevant, and in our judgment, sufficiently detailed findings of fact in subparagraphs (d) to (f) inclusive, relating to the incidents involving the fellow workers Mr Seery and Mr Murray, respectively. The Industrial Tribunal found, amongst their other findings, that the appellant made no formal complaint arising out of the "Seery" incident in May, but reported it informally to Mr McGregor who was not his line manager, who suggested that the remarks should be ignored. The Industrial Tribunal found that no investigation was initiated. With regard to the Murray incident in September, again no formal complaint was made on the findings of the Industrial Tribunal, and once again, although the appellant was referred to the Equal Opportunities Officer, the appellant wanted Mr McGregor to deal with it. Mr McGregor set up an interview with a 'listener', Mrs Rothwell. There followed findings by the Industrial Tribunal principally with regard to what happened after the appellant had walked off the job on 9th September 1996. It is plain in addition that the finding of the Industrial Tribunal at subparagraph 3(h) shows that there had been a full meeting with Mrs Rothwell, the 'listener', but no formal complaint was made by the appellant.

The Industrial Tribunal then proceeded to make their findings, at paragraph 4, of racial discrimination, which are not in issue before us on this appeal. They then went on to consider whether the incidents relating to the fellow workers which the appellant had described were in the course of employment of the employees concerned. They expressed themselves in this way:

"4. ... The primary issue for the Tribunal is whether the first respondent is liable for those acts by those employees. In principle Section 32(1) provides that employers are liable for the acts of employees who are acting in the course of their employment. In the circumstances of this case however we are unanimously satisfied that the incidents about which the applicant complains did not occur in the course of the employment, albeit at the workplace during working hours. accordingly the first respondent is not liable for those employee's conduct."

The Industrial Tribunal then went on in any event to consider the statutory defence and correctly referred themselves to the wording of s.32(3) of the 1976 Act. They then expressed themselves in the manner they did in the last two sentences of paragraph 5 of their decision:

"5. ... The first respondent's policy, statement and procedures are comprehensive and commendable. Further they are generally well known and implemented by the employees, as was evident from the tenor of the evidence of all the witnesses called on behalf of the first respondent, (including Mr McGregor, whose actions were well intentioned - even though not strictly in accordance with the procedures if any formal complaint was made to him correctly)."

And as they did in paragraph 7 of their decision:

"7. The Tribunal are unanimous in their criticism of the first respondent for failing to investigate sooner the applicant's valid, if not formal and/or correctly made, complaints of verbal abuse constituting misconduct by fellow employees, albeit that it has been decided that those fellow employees were not acting in the course of their employment so as to make the first respondent vicariously liable for that abuse or misconduct. The first respondent's procedures clearly provide that such matters can form a basis for disciplinary action to be taken against employees who behave in that way. However in this case it is clear that not only was no disciplinary action taken, no disciplinary investigation was ever initiated. We do not say that such investigation would or should have resulted in disciplinary action, only that the first respondent is open to criticism for its failure so to investigate, pursuant to the Policy and Procedures on which the first respondent relied in defending this case. It is hoped that these comments, whilst not strictly forming part of the Tribunal's Decision, will assist in furthering the first respondent's anti-harassment policy in the future; they are made only with that intention."

It is against that background of the findings by the Industrial Tribunal and the decision which they reached that we come to consider the submissions that are made to us which we have summarised earlier in this judgment.

We have carefully considered the submission that the Industrial Tribunal failed to give adequate reasons for concluding that the acts of the fellow employees (as we describe them in shorthand) were not in the course of their employment. It is correct that the Industrial Tribunal did not refer in terms to the recent important decision of the Court of Appeal of Jones v Tower Boot Co Ltd . However, it is common ground that they were referred to it, and they must have had it in mind. In our judgment, the Industrial Tribunal's decision did adequately set out an outline of the story which had given rise to the appellant's complaint; and properly and sufficiently summarised the basic factual conclusions relating to the circumstances of incidents of racial discrimination as described by the appellant in evidence before them. In our judgment, it is clear from the terms of the Industrial Tribunal's decision that they had concluded, after taking into account all the circumstances, and in particular that the incidents had taken place in the workplace during working hours, that nevertheless they were satisfied that the incidents had not occurred in the course of the employment of the fellow workers. In our judgment, this amounted to a sufficient statement of reasons to enable the appellant to know why he had lost on this point. In our judgment, the Industrial Tribunal were here adopting and following the approach prescribed by Waite LJ in the Jones v Tower Boot Co Ltd case at page 265D:

"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, in deciding an issue of this kind, an Industrial Tribunal does not have to set out their reasoning in detail. Here, it is clear that the Industrial Tribunal took into account all the circumstances based upon the detailed findings of fact they had already made with regard to the incidents complained of, and that they took into account the fact that the incidents had occurred in the workplace during working hours. At the end of the day, the decision they were called upon to make was that of an industrial jury applying their own common sense and collective experience in relation to matters of industrial relations to the facts which they had found. In our judgment, the decision in Jones v Tower Boot Co Ltd establishes that the Industrial Tribunal has a very wide discretion in reaching a common sense conclusion as to whether acts were or were not in the course of employment. It has to look at that question in the round, and provided it correctly directs itself, as the Industrial Tribunal did here as to the test to be applied, and takes into account all the circumstances, which the Industrial Tribunal did here, in our judgment its decision cannot be faulted on the grounds that it has failed to set out to reasoning in any detail. Accordingly, in our judgment, no error of alw is shown and the appeal fails on this ground.

We turn to consider the second issue on appeal before us, namely, as to whether the Industrial Tribunal erred in their application of the test of reasonable practicability contained in s.32(3) of the 1976 Act. Whilst, in our judgment, it is certainly the case that to make out the statutory defence an employer must show more than simply that he has acted reasonably, it is not appropriate to attempt to state in definitive terms what does and does not amount to the taking of reasonably practicable steps within s.32(3) as a rule of law to be applied in all cases and circumstances. In our judgment, the plain words of the statute must be read in the context of the purpose behind the defence, which is that the good employer who can establish that he has taken all the practicable steps which an employer in his position can reasonably be expected to take in all the circumstances, should be able to be exonerated. Again, we found great assistance and guidance from the judgment of LJ Waite in the Jones v Tower Boot Co Ltd case particularly at pages 263H to 264A as follows:

"... and then supplying them with the reasonable steps defence under section 32(3) which will exonerate the conscientious employer who has used his best endeavours to prevent such harassment, and will encourage all employers who have not yet undertaken such endeavours to take the steps necessary to make the same defence available to their own workplace."

In our judgment, with great respect, such is the correct approach to the statutory test, rather than, for example, holding the employer to the different kind of test formulated in the different context of regulations made under the Metalliferous Mines Regulations Act 1872 , as defined by the House of Lords in Marshall v Gotham Co Ltd

[1954] AC 360

In our judgment, the question whether a given employer has made out the statutory defence should be approached in a common sense and practical way by Industrial Tribunals, and not in a technical and legalistic way. Bearing in mind of course, that mere reasonableness is not sufficient. In our judgment, the Industrial Tribunal's reasoning in paragraphs 5 and 7 discloses no flaw in their approach to the statutory defence, nor any in-built contradiction in their reasoning.

In our judgment, the finding in the last two sentences of paragraph 5 amount to a correct application of the test and resulted in conclusions which cannot be faulted. The laying down of a policy and the implementation of an anti-harassment policy must not be judged against some artificially high or Olympian standard. It does not have to be perfect in an imperfect world. It would be impossible for an employer, however well intentioned, to cover every eventuality or to foresee the myriad of different circumstances which may occur in the workplace. It is, in our judgment, logic-chopping, with respect, to argue that because the Industrial Tribunal held that the respondent's policy was generally well-known and implemented, that must mean that to some extent it was not. That, with respect, is no more than a lawyer's point.

Similarly, the fact that Mr McGregor, who was not a line manager, did not know the details of the first respondent's procedures for implementation of their policy, cannot have the result that the respondents had not taken reasonably practicable steps to ensure that those who did need to know them, namely line managers amongst others, did fully understand the procedures.

With regard to the criticisms made by the Industrial Tribunal in paragraph 7, it is, in our judgment, clear that the Industrial Tribunal were not intending in that paragraph in any way to derogate from their clear finding in paragraph 5 that the statutory defence had been made out. In our judgment, these observations made by the Industrial Tribunal, which they expressly state do not form a part of their decision and which must be read in context, amount to no more than an expression of the Industrial Tribunal's opinion that it may have been appropriate, even in the absence of a formal complaint by the appellant, for the first respondent, nevertheless, to have carried out a disciplinary investigation and disciplinary action.

In our judgment, provided an employer has the proper procedures in place, as the first respondent had here on the findings of the Industrial Tribunal, it must remain a matter of discretion for the employer to decide at what point, and indeed, whether formal disciplinary process should take place. There is in fact much in the respondent's documents which indicates that this was all looked at very carefully by the respondent shortly after the appellant had left their employment. But we repeat, this must be a matter of discretion for the employer.

The Industrial Tribunal was, in our judgment, doing no more than suggesting that for the future such comments as they made might further the respondent's anti-harassment policy. A policy which the Industrial Tribunal had expressly found to be comprehensive and commendable. So, for those reasons, this ground of appeal, in our judgment, also fails.

Accordingly, this appeal must be dismissed.