X v Y & Anor [1999] UKEAT 534_98_1504

EAT
X v Y & Anor
[1999] UKEAT 534_98_1504 · 1999-03-17
[1]We accept that this may have occurred on one occasion. Indeed, the second respondent admitted that such an incident had occurred. However, we are satisfied -(a) that on that occasion the applicant did not give any indication to the second respondent that his conduct was unwelcome: and(b) that in treating the applicant in the way he did, the second respondent did not treat the applicant less favourably than he would have treated a male colleague. Indeed, we accept the second respondent's evidence that he had treated male officers similarly. There was no evidence from any other witness to support the applicant's contention that this conduct occurred once or on more than one occasion. Had such conduct occurred with the regularity which the applicant sought to suggest, we are satisfied that it would have been noted by the other officers on the Rota who were present, so it is alleged by the applicant, and by Senior Officers whom it is also said were present.[2]We do not accept that the second respondent behaved in the way alleged. Again, the applicant's evidence was that this was done on a regular basis. Had it been, we cannot but believe that it would have been heard by other Officers and yet no other Officer who gave evidence supported the applicant in this allegation.[3]We are satisfied that the conduct alleged did not occur at the time the applicant said it did. Documentary evidence and the alleged presence of a witness placed the timing of the incident on another date. The applicant made the allegation and the specific timing of the allegation within a very short time of the incident having occurred. If the second respondent had conducted himself in the way which the applicant alleges, we are satisfied that PC Wells who was present at the time, would have taken more notice of the alleged incident. For the incident to have occurred in the way in which the applicant alleges, is not, in the view of the tribunal, credible. The second respondent admitted that he did sit on the applicant's knee very briefly. We do not accept that the action amounted to sexual harassment as alleged by the applicant.[4]In the statement which she made in November 1994, the applicant was very specific as to the circumstances in which the incident occurred. Once it became clear that the alleged incident could not have occurred at the time the applicant said it did, the applicant then made significant changes to her version of events. On the balance of probabilities we do not accept that the incident happened either in the way the applicant suggested or even on the day and time she alleges. In those circumstances we cannot find that the applicant has established that the incident occurred.[5]We accept that this incident did occur but are satisfied that the applicant has embellished the words allegedly used. We accept the second respondent's version of events as set out in the amended notice of appearance and we are satisfied that in making the remark that he did make to the applicant, this did not amount to sexual harassment nor was there any sexual connotation in the words he used.[6]On the basis of the evidence which we heard from various Officers whom it was said, were present on the date in question, we are not satisfied that the incident occurred in the way that the applicant suggests. Indeed, we are not even satisfied that there was any significant incident at all on that day.[7]The applicant gave no evidence to amplify or clarify this allegation. In her Originating Application she states that this was regular conduct on the part of the second respondent. From the evidence provided, the applicant and the second respondent were, in fact, on duty together on a limited number of days on the period in question. None of the witnesses called by the applicant, nor indeed by the second respondent, was able to provide any corroboration of the applicant's allegations. If the second respondent had conducted himself in the way alleged by the applicant, we are satisfied that such conduct would not have gone unnoticed by the applicant's colleagues who, on the applicant's version of events, must have been present on many if not all of the occasions when it is alleged the second respondent conducted himself in that way.[8]This is the additional allegation made with regard to the sausage. Again, the applicant's version was that the incident occurred in the canteen with others present. None of the witnesses called by the applicant noted the incident alleged. The second respondent denied that it had occurred and bearing in mind that the applicant's allegation came in the course of her evidence-in-chief not having been mentioned in statements she had previously made or in her Originating Application, we are not satisfied that the incident occurred as alleged by the applicant at all." In addition to those findings the tribunal concluded that the appellant had embellished her complaints against the second respondent. In essence, they accepted his version of events in preference to that of the appellant. They referred in particular to the fact that on 25th October 1994 the appellant offered to swap duties with another female officer who had herself complained about the second respondent's conduct, which would have resulted in the appellant being on night patrol with the second respondent. That, the tribunal considered, was inconsistent with the appellant's evidence, contained in a statement made by her in November 1994, where she said:
"Luckily I had never had to work with [ the second respondent ], on one occasion he transported me to an address to obtain a statement but other than that I had never been in a car with him. I am pleased I haven't had to work with him because I believe that the comments would have been far more intimate had I been alone in a car with him."
As a general observation the tribunal found, on the evidence, that there was a degree of horseplay, both verbal and physical on the appellant's shift at the police station. They did not hesitate to reject evidence given on both sides which Ms Beale described as the context evidence, that is, the atmosphere and general standard of behaviour at the station. The tribunal indicated that had they accepted the appellant's allegations made against the second respondent they would have had no difficulty in finding that such conduct amounted to sexual harassment and that in those circumstances the appellant would have suffered a detriment by reason of her sex. However they did not accept her version and found that she had not made out her complaint of unlawful sex discrimination. Finally, although not strictly necessary in the light of their primary finding, the tribunal expressed a view, with reasons, in paragraph 13 of their reasons that had the appellant made out her case against the second respondent, the first respondent would have been relieved of liability, having made out the statutory defence under s.41(3) of the Act. The Appeal As Ms Beale points out in her skeleton argument, the original eight grounds of appeal in part rely on the decision of the EAT (Morison P presiding) in Wade v Chief Constable of West Yorkshire & others (EAT/899/96. 24th March 1997. Unreported) . This case was allowed to proceed to a full hearing on all grounds by a division of the EAT presided over by the President at the preliminary hearing held on 2nd July 1998. In Wade a female police officer complained to an Employment Tribunal that she had been unlawfully discriminated against on grounds of her sex and victimised. She produced a schedule of 13 incidents relied on. A tribunal sitting at Leeds under the same Chairman who sat in the present case dismissed her complaints. She appealed. On appeal the EAT allowed her appeal and remitted the case to a fresh tribunal for rehearing. Against that decision the respondents appealed to the Court of Appeal. The Court delivered its judgment, given by Pill LJ on 31st July 1998 (EATRF 97/1132-3/3. Unreported) . The appeal was allowed and the decision of the Employment Tribunal restored. The EAT accepted a submission made on behalf of the appellant that the Employment Tribunal had failed to carry out its task in a proper manner. Their reasons for reaching that conclusion were as follows (CA approved transcript Page 10G-11D): "1. "There is nothing in the discrimination decision itself to indicate that the Tribunal recognised or accepted that they were dealing with an allegation of sexual harassment arising from a series of acts which allegedly formed a pattern of mistreatment. Nowhere in their decision do they refer to the allegations as though they were linked. ..." 2. "Second, it is regrettable, in our view that the Tribunal's decision is so thin in relation to most of the allegations ... It was, we think, incumbent on them to set out their findings of fact in relation to each of the incident and to set out their reasons why, on those facts, they were not prepared to infer that discrimination had not been established. We would have expected a tribunal to look at the allegations jointly and severally. We would have expected the tribunal to deal with the contention that the conduct complained of was all part of a piece, and why they rejected it, if they did." 3. "Further, we also accept that the Industrial Tribunal should have dealt with the time limit point more fully and carefully than it did. ... It seems to us, also, that, bearing in mind the appellant had timeously complained to her employers about her alleged mistreatment and the matter was being investigated, and having regard to the absence of prejudice to the officers caused by any delay, the only rational conclusion to which the Tribunal could have come on the question of time limits would have been to exercise their discretion in her favour under section 76(5), to extend time." 4. "Because we take the view that the whole approach of the Industrial Tribunal was fundamentally flawed, as argued on the appellant's behalf, we must remit the matter back for a re-hearing before a differently constituted tribunal."" The Court of Appeal rejected that reasoning in relation to conclusions 1 and 2. Pill LJ dealt with those conclusions at page 13D-18D of the transcript. The Court's judgment on those conclusions may be summarised as follows: (1) It was inconceivable that in making findings of fact, as they did and were required to do on the specific allegations, the Employment Tribunal failed to keep in mind the evidence as a whole, and in particular the allegation of a campaign of sexual harassment against the appellant. (2) The tribunal decision could not be impugned for its "thinness". The tribunal referred to the evidence in the witness statements and summarised the evidence of witnesses who had not submitted a statement. The allegations made were sufficiently dealt with by the tribunal. (3) The mischief identified by Mummery J in Qureshi v Victoria University of Manchester & another (unreported, transcript 21st June 1996) , namely a failure on the part of the tribunal to look at the totality of the facts in order to see whether it was legitimate to draw an inference of unlawful discrimination, there on racial grounds, did not arise in Wade , where the Court was satisfied that the Employment Tribunal considered the evidence as a whole when making findings on specific allegations. The applicant's central difficulty in Wade was that the findings of primary fact, notably on the two key allegations involving obscene remarks made to the appellant by male officers, were adverse to her. (4) The EAT, as part of their reasoning under conclusion 2, observed that the tribunal did not appear to have in mind the Court of Session decision in Porcelli v Strathclyde Council [1986] ICR 564 . However, Pill LJ pointed out that in Porcelli the case came before the Court of Session on the basis that the applicant there had been subjected to sexual harassment. On those findings of fact she had been unlawfully discriminated on ground of her sex. Conversely, in Wade there was no factual finding of sexual harassment or of the degrading and unacceptable form of treatment found in Porcelli . The tribunal did not find sexual harassment was established. The Porcelli approach did not arise upon the factual findings in Wade . Ms Beale, supported by Mr Jones, relies on the Court of Appeal decision in Wade . Ms Gill invites us to distinguish that case on the facts; there was, in Wade , no allegation of physical harassment. In the present case, on the tribunal's own findings based on the second respondent's evidence, there was physical contact made by the second respondent with the appellant (allegations 1 and 3). That is correct. However, we have no doubt that a sustained campaign of verbal harassment of a complainant which is gender specific can and usually will as a matter of fact amount to unlawful sex discrimination. The difference between verbal and physical sexual harassment does not go to primary liability, but to the assessment of compensation for such unlawful discrimination. It is plain that insofar as the Court of Appeal disapproved the approach taken by the EAT in Wade , we are bound to follow the principles laid down by the Court of Appeal. At all events, no doubt mindful of the Court of Appeal decision in Wade , Ms Gill has refined her grounds of appeal to four submissions before us. We now deal with each of those submissions in turn. Inadequate findings of primary fact Ms Gill reminds us of the tribunal's duty to give reasons for its decision. The Employment Tribunal Rules of Procedure, rule 10(3). In the case of a complaint under the Act those reasons must be given in extended form. (Rule 10(4)). The parameters of that obligation to give extended reasons are encapsulated in the judgment of Bingham LJ in Meek v City of Birmingham District Council [1987] IRLR 250 , paragraphs 8-9, where he said: "It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises; and it is highly desirable that the decision of an Industrial Tribunal should give guidance both to employers and trade unions as to practices which should not be adopted. Nothing I have said is, as I believe, in any way inconsistent with previous authority on this subject. In UCATT v Brain [1981] IRLR 225, Lord Justice Donaldson (As he then was) said at p.227: 'Industrial Tribunals' reasons are not intended to include a comprehensive and detailed analysis of the case, either in terms of fact or in law ... The reasons are then recorded and no doubt tidied up for differences between spoken English and written English. But their purpose remains what it has always been, which is to tell the parties in broad terms why they lose or, as the case may be, win. I think it would be a thousand pities if these reasons began to be subjected to a detailed analysis and appeals were to be brought based upon any such analysis. This, to my mind, is to misuse the purpose for which the reasons are given.'" Sir John Donaldson MR and Ralph Gibson LJ agreed. Ms Gill submitted that the correct approach in this case was for the tribunal to make the necessary primary findings of fact; to decide, based on those findings, whether the treatment afforded to the appellant was less favourable than that which would have been afforded to a man, bearing in mind that if the relevant treatment is gender specific it is unnecessary to make a comparison with a man. Porcelli . That will include treatment, described as 'horseplay', which is itself offensive to a woman but not a man. She adopts the definition of sexual harassment contained in the judgment of Ward LJ in Smith v Gardner Merchant Ltd [1998] IRLR 511 . In that case his Lordship referred, at paragraph 43 to the judgment of Morison P in British Telecommunications PLC v Williams [1997] IRLR 668 , paragraph 8, where he said: "To effect a person's dignity on the grounds of sex will, as with other forms of sexual harassment, cause a detriment to that person. Thus, proof of sexual harassment, of whatever form, will satisfy the criterion. Because the conduct which constitutes sexual harassment is itself gender-specific, there is no necessity to look for a male comparator. Indeed, it would be no defence to a complaint of sexual harassment that a person of the other sex would have been similarly so treated: see Porcelli v Strathclyde Regional Council [1986] IRLR 134." The emphasis was added by Ward LJ. His Lordship approved that passage from the President's judgment, subject to this caveat at paragraphs 44-55: "The judgments of the president of the Employment Appeal Tribunal always command respect but I regret that I do not fully agree with what fell from him on this occasion. I agree that the kind of conduct which constitutes sexual harassment can be, indeed usually is, gender-specific. It was in Porcelli . The abuse to which she was subjected was being shown a screw nail and asked if she wanted a screw and being shown a penis-shaped glass rod-holder and asked if she had a use for it. It was this sort of behaviour which ineluctably compelled the conclusion that: 'In my opinion this particular part of the campaign was plainly adapted against the applicant because she was a woman. It was a particular kind of weapon, based upon the sex of the victim , which, as the industrial tribunal recognised, would not have been used against an equally disliked man.' per the Lord President at 137, 9, with my emphasis added. 'If any [of the weapons used against the complainer] could be identified as what I call "a sexual sword", and it was clear that the wound it inflicted was more than a mere scratch, the conclusion must be that the sword had been unsheathed because the victim was a woman.' - per Lord Grieve at 139, 30. These are conclusions of fact. Why I disagree with the observations of Morison J is that he seems to elevate a conclusion of fact - usually, in the context of the case, an absolutely inevitable conclusion of fact - into a principle of law. Picking up the emphasis I added to his judgment, it is not the case that because the abusive conduct is gender specific that there is no necessity to look for a male comparator; but it is rather the case that if it is gender-specific, if it is sex-based, then, in the nature of the harassment, it is almost certainly bound as a matter of fact to be less favourable treatment as between sexes. The male employee would never have been subjected to the indignity of being asked if he wanted a screw or had a use for the phallic rod-holder. Thus, in those circumstances, there is no need for a comparator simply because res ispsa loquitar." She relies on the Court of Appeal decision in Chapman v Simon [1994] IRLR 124 for the proposition that it is of the greatest importance that the primary facts are set out with clarity by the Employment Tribunal, so that, in that case, the validity of any inference drawn can be examined. There, the Court of Appeal held that there were no findings of primary fact from which it was legitimate to draw an inference of unlawful discrimination. The same principle, Ms Gill submits, must apply in reverse. Without the necessary findings of primary fact it is impossible to tell on appeal whether the tribunal was justified in failing to draw such an inference. We think that proposition must be correct. Further, she contends that it is not sufficient for the Employment Tribunal to state, as it did in paragraph 4 of the reasons, that it had difficulty with certain evidence given by witnesses on both sides. It has a duty to make findings of fact. Only in exceptional cases will it be permissible to rely on the burden of proof where it cannot decide which conflicting version of events it believes. Morris v London Iron Co [1987] ICR 855 . Against that background Ms Gill made the following submissions on this tribunal's primary fact finding. (1) Allegation 1 . There is no finding as to how the single incident found occurred. We disagree. It is plain to us that the tribunal found that the single incident of the second respondent massaging the appellant happened in the way which he described, that is, she complained of a stiff neck; he offered to rub it for her and did so. She thanked him for it. (2) Allegation 3 . The tribunal failed to deal adequately with the evidence of PC Wells as to what happened on that occasion. Again, we disagree. The tribunal accepted the second respondent's version of events, namely, that he had adopted the position of sitting on one of her knees when the appellant was seated on a bench with her eyes closed. They rejected her account that he straddled her by putting his legs astride hers with his pelvis on hers, pulling her towards him by her shoulders. The tribunal took the view that if the incident had occurred in that way PC Wells would have noticed it. That is leaving aside the appellant's inaccuracy over dates. (3) Allegation 4 . This is, on any view, the 'key' allegation, to borrow that expression from Pill LJ in Wade . As a matter of fact, had the appellant's account been accepted, Ms Beale concedes rightly that the complaint of unlawful discrimination would have been made out. Ms Gill complains that it was not enough for the tribunal to reject this allegation on the basis that when it became clear that the incident did not occur when she had originally said it had, the appellant significantly changed her version of events. The tribunal ought at least to have set out the precise way in which the appellant had changed her version. We remind ourselves of the words of Donaldson LJ in UCATT v Brain . It would be a thousand pities if a tribunal's reasons began to be subjected to a detailed analysis and appeals were to be brought based upon such an analysis. That is what, it seems to us, Ms Gill is here doing. The appellant lost on this part of her case because, in a straight conflict between the appellant and the second respondent, there being no other person who was said to have witnessed the alleged incident, the tribunal preferred the second respondent's flat denial of the incident in circumstances where the appellant gave an inconsistent story. No more need be said. Further, anticipating a later submission by Ms Gill, we do not accept that the tribunal approached its fact-finding task in relation to the eight specific allegations in a vacuum. It did so against the background of the whole of the evidence and in particular, its assessment of the overall credibility of the two principal witnesses. On that issue, the tribunal plainly found the second respondent more credible that the appellant. That was a matter for them and not for us. (4) Allegation 5 . The tribunal found that the appellant had materially embellished her account of this incident. They accepted the second respondent's account, which was that he had said "You are out with me tonight, [the appellant]. I hope you have clean knickers on (or possibly "your best knickers"). He said nothing about inspecting her knickers. It is here that Ms Gill raises what we consider to be the main point of substance in this appeal. She submits that on the tribunal's own finding, that is the second respondent's version, it is perverse to conclude, taking in account also allegations 1 and 3, again, based on the tribunal's primary findings of fact, that the second respondent was not guilty of sexual harassment, as defined by Ward LJ in Smith v Gardner Merchant , leading to an inference of unlawful discrimination. We have considered that submission carefully, and have reminded ourselves of the various epithets collected by Mummery J in Stewart v Cleveland (Guest) Engineering Ltd [1996] ICR 535 , 542G, under the umbrella of "perversity". The particular facts of that case are instructive. The tribunal found that at the workplace male employees had pinned up pictures of nude and semi-nude women which the female applicant genuinely and reasonably found offensive. When she complained to management they failed to deal with her complaint properly or expeditiously or to deal with the hostility and ridicule to which she was subjected by other employees when they learned of her complaint. The tribunal accepted that the applicant had been subjected to a detriment but declined to find that she had been less favourably treated on grounds of her sex. On appeal, of which the respondent did not appear and was not represented, the appellant, represented by Ms Gill, was unable to persuade the Appeal Tribunal that the decision was perverse. It was essentially a question for the tribunal of fact. It was not enough that the Appeal Tribunal would itself have reached a different conclusion sitting as a fact finding tribunal. We find ourselves in a similar position in this case. A different Employment Tribunal may well have taken a different view on the same primary facts as found by this Employment Tribunal. However, this tribunal accepted the second respondent's case that the incidents which he admitted, allegations 1, 3 and 5, were not such as to amount to sexual harassment as earlier defined. We are unable to say that that was an impermissible conclusion at law. (5) Allegation 6 . This incident was simply denied by the second respondent. The tribunal accepted that denial, having considered the evidence of other officers present on the day in question. That is the end of it. (6) Allegation 7 . Ms Gill submits that here the tribunal placed too high a burden of proof on the appellant. She was required to provide corroboration of this allegation. That is not how we read the tribunal's reasoning. They merely observe that had the incident happened in the way described by the appellant they would have expected others who were present at the time, to have noticed it and given evidence to that effect. Apparently they did not do so. (7) Allegation 8 . In her Originating Application the appellant made a general allegation that the second respondent had constantly made unpleasant and offensive sexist remarks to her. It was not until the tribunal hearing that she particularised one such remark, allegedly made to be her by the second respondent while she was eating a sausage in the canteen. The tribunal took into account the fact that the appellant raised this particular allegation at a late stage, and that it had not been observed by others present, according to the evidence, in finding that it was not made out, the second respondent having denied making any unpleasant or sexist remarks. That was again entirely a matter for them, not for us. (8) Generally . It is common ground that on 26th October 1994 the appellant made a complaint about the second respondent, which was in turn investigated by a senior officer. Consequently, the unsuccessful criminal prosecution was launched. Ms Gill complains that the fact of this investigation and the criminal proceedings are not referred to in the tribunal's reasons. Nor is there any analysis of the evidence given by other officers in support of the appellant's allegations. Nor is there reference to other complaints against the second respondent by female officers, save for the reference in paragraph 10 of the reasons, which the tribunal found damaged the appellant's case. This give the clear impression that the tribunal has failed to consider the evidence as a whole in reaching its conclusion. We reject that submission. It is not necessary for the tribunal to set out all the evidence given and to subject that evidence to close analysis. The purpose of written reasons is to express its findings on the basic factual questions and to explain its conclusions so that the parties know why they have won or lost. Here, quite simply, the appellant lost on the facts. The admissions and explanations of the second respondent did not lead the tribunal to draw an inference of unlawful discrimination. How they reached those critical conclusions are, in our judgment, adequately explained by their reasons. The first head of complaint, inadequacy of reasons, fails. Corroboration We have earlier touched on this question. Specifically, Ms Gill submits that in relation to their findings on allegations 1, 2, 7 and 8 the tribunal imposed too high a burden on the appellant to adduce corroborative evidence in order to establish her case. That is not how we understand the tribunal's approach. Rather, it was to observe that, given the number of witnesses called, some of whom would have been present when those alleged incidents occurred, that none gave corroborative evidence. They were entitled to take into account that fact. What they were not saying was that they could not accept the appellant's account in the absence of corroboration, akin to the former rule in criminal law that the uncorroborated account of a child witness was insufficient to establish the guilt of an accused. Less favourable treatment In relation to the tribunal's finding on allegation 1, it is submitted that in line with Porcelli , the tribunal was wrong to find that the second respondent would have treated a man in the same way. It ought to have asked itself whether that treatment included a significant element of a sexual character to which a woman would not be vulnerable. If so, that is less favourable treatment on the grounds of the complainant's sex. What the tribunal found was that the action of the second respondent, rubbing the appellant's neck, was not unwelcome. That is wholly different from the findings of fact in Porcelli , upon which the Court of Session judgments are based, that Ms Porcelli was subjected to a policy of vindictive unpleasantness by her male colleagues which was distressing for her. The difference between that case and this lies in the findings of primary fact. Consistent with the approach of Ward LJ in Smith v Gardner Merchant this tribunal found that the incident, allegation 1, was not in fact gender-specific. That was a matter for them. The statutory defence Ms Gill accepts that if we reject her primary case on appeal against the second respondent, and we do for the reasons which we have endeavoured to explain, then no purpose is served in considering her further submission that the tribunal failed to give adequate reasons in paragraph 13 for their view that the first respondent had made out the statutory defence. We agree. Accordingly, this appeal is dismissed.