FJ NEED (FOODS) LIMITED v MS J BOYLE [1999] UKEAT 771_99_1210

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 771_99_1210Case No Appeal No. EAT/771/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
FJ NEED (FOODS) LIMITEDAPPELLANTMS J BOYLERESPONDENT
Before
His Honour Judge J Altman Mrs R Chapman Mr G H WrightDate 12 October 1999
[1]APPEARANCES For the Appellants MR L BROWNE (of Counsel) Instructed by: Mr P J Anderson Messrs Joliffe & Co Solicitors Exchange House White Friars Chester CH1 1NZ JUDGE ALTMAN : This is an appeal from the decision of the Employment Tribunal sitting at Shrewsbury on 11th February 1999. The decision was reserved. The appeal comes before us by way of preliminary hearing to determine whether there is a point of law which can properly be argued in full before the Employment Appeal Tribunal. The Employment Tribunal found acts of sex discrimination under the provisions of the Sex Discrimination Act 1975 . The acts were committed directly by an employee of the appellants.[2]Two questions arise on the appeal relating first of all to the question as to whether the acts were done in the course of the employee's employment and, secondly, the question of the defence of an employer that reasonably practicable steps had been taken to prevent the act or acts of that description.[3]The respondent applied for a job with the appellants. She was interviewed by a Mr Greenwood in the presence of a female employee. Mr Greenwood took the opportunity to arrange for the respondent to telephone him about employment or to be telephoned by him at home. Thereafter the appellants or their employees were not directly involved in what occurred.[4]It was common ground that what followed amounted to sex discrimination in the form of sexual harassment: in the arrival of Mr Greenwood early to pick up the respondent from home; in what he said and did in the car journeys during and after a site visit; in inviting himself to the respondent's home and what he did and said once inside the house. He committed an offence of an indecent assault of which he was later convicted.[5]First of all the appellants complain as to the Employment Tribunal's finding that the acts were committed by Mr Greenwood in the course of his employment. In paragraph 7 of their decision, the Employment Tribunal found as follows:
"The Tribunal considered that the acts of the Second Respondent on both 7 and 8 January 1998 were done within the course of his employment. He was carrying out a visit to another company on behalf of his employer and had invited the applicant, a person interested in employment, to accompany him. It is quite inappropriate, and indeed contrary to common sense, to distinguish, as Mr Brown sought to do, between the journey to the other company and the journey from that company to the applicant's house. The only reason the applicant was in the Second Respondent's company at all was that she was interested in employment with the respondent. The Second Respondent held himself out to her as someone authorised to consider giving such employment. The Second Respondent was going about the respondent's business albeit in an unauthorised way."
[6]Mr Brown asserts, in effect, that the Employment Tribunal failed to distinguish those parts of the encounters between Mr Greenwood and the respondent which were part and parcel of his employment and those which were not. He says that it will be found that it is those which were not that constituted acts of sex discrimination. He suggests that there was an error of law by the tribunal in that, in effect, there were no facts upon which the tribunal could properly conclude that this was in the course of employment and, therefore, the decision was perverse.[7]S.41(1) of the Sex Discrimination Act 1975 provides:
"Anything done by a person in the course of his employment shall be treated for the purposes of this Act as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval."
[8]When setting out the facts upon which the decision was made, in their extended reasons in paragraph 3, the Employment Tribunal set out that the respondent came to the premises of the appellants as a result of an appointment to see Mr Greenwood. There was an "informal chat" with Mr Greenwood and another employee, Julia, present. It appears that during that conversation Mr Greenwood said that he might have something else for the respondent and asked for her home telephone number and spoke of a sales job. There was a conversation later on the telephone between only the respondent and Mr Greenwood and she was taken on a site visit to another company. It was during that site visit that Mr Greenwood took the opportunity of speaking and acting in an unacceptable way, in a way that was clearly one of sex discrimination. He was authorised in the course of his employment to go to visit another company on that day, he was not authorised to take someone with him. He later went to her house on the pretence of looking at a business plan which she had apparently prepared, pretending the visit was to be part and parcel of his ascertaining if the respondent would be a suitable employee. Furthermore, it appears that Mr Greenwood wrongly held himself out as being a director of the appellants.[9]In their findings at paragraph 4 the Employment Tribunal accepted the appellants' evidence that there was no vacancy for which the respondent might have been considered; that Mr Greenwood was not authorised to interview for any position there might have been; that he was not authorised to take the respondent on company business with him; that he was not a director.[10]All those are matters which the appellants rely upon in support of the proposition that any tribunal properly directing itself on the facts would, as a matter of law, have come to the conclusion that the acts complained of were not in the course of employment. Indeed, it is pointed out that the events on the company premises on 7th January were unexceptional, it is was only when it took place in the context of unauthorised acts that the acts of sex discrimination were committed.[11]Against that background the appellant poses the question as to whether the Employment Tribunal came to a conclusion which no reasonable tribunal properly directing itself could come to in concluding that the acts were "done" by Mr Greenwood in the course of his employment. It is perfectly true to say that they found what he did was unauthorised. They did not find that any of the acts that he did or what he was doing at the time was forbidden.[12]It seems to us that the tribunal clearly indicated in paragraph 7 of its decision that it would not make artificial distinctions in the areas of activity such as between whether a journey was to a company or to a house. The tribunal point out that the only reason that the respondent was in Mr Greenwood's company was that she was interested in employment. In conclusion the tribunal made a finding that Mr Greenwood was going about the appellants' business, albeit in an unauthorised way. In other words, they were finding that he was acting in the course of his employment but he was doing things which he was not specifically authorised to do, clearly, in relation to his involving the respondent in his work, which itself was authorised.[13]It appears that the appellants in this case were respected by the Employment Tribunal as conscientious employers who would be horrified to learn of what was going on between one of their employees and an applicant for employment.[14]The authorities have made it clear that essentially the question as to whether someone is acting in the course of their employment is a matter for the Employment Tribunal as an issue of fact. The helpful skeleton argument on behalf of the appellants refers to Jones v Tower Boot Co Ltd [1997] IRLR 168 and The Chief Constable of the Lincolnshire Police v Stubbs [1999] IRLR 81 .[15]The Employment Tribunal has to consider the circumstances in the sense in which every layman would understand the words "in the course of his employment." It seems to us that the tribunal looked at the facts, directed their attention to them, recognised the appropriate principles of law to apply and came to a conclusion which an Employment Tribunal, properly directing itself on the law and as to the facts, was entitled to come. We have come to the conclusion that it was an issue of fact which they were entitled to reach and there appears to be no error of law.[16]The second ground of appeal relates to the defence in s.41 (3) of the 1975 Act, which I quote in full:
"In proceedings brought under this Act against any person in respect of an act alleged to have been done by an employee of his it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing in the course of his employment acts of that description."
[17]In paragraph 5 of their decision the Employment Tribunal found as a fact that:
"… the respondent had at the relevant time no equal opportunities policy, nor did they conduct any briefing or training in relation to discrimination matters, nor did they issue any guidelines in relation to recruitment and authorisation to conduct recruitment. The evidence of Mr Kynaston was that the Second Respondent [ Mr Greenwood ] appeared a perfect gentleman and that he had no reason to think that any form of improper discrimination was a problem within the respondent. He himself did not understood the difference between indirect and direct discrimination."
That last sentence is irrelevant to this decision and probably that of the Employment Tribunal.[18]The reference within that finding was not only to the actual general equal opportunities policy and reference to discrimination matters, but to the way in which someone in Mr Greenwood's position should behave towards an applicant for employment and the extent of his authority in that connection.[19]Then in paragraph 8, on the basis of those findings and the other findings of the case, the Employment Tribunal dismissed the policy statement that "There are no specific rules and relations, just plain common sense" as effectively inadequate. The tribunal go on to refer to the facts which they had already found. They concluded:
"In the view of the Tribunal all of these were steps which were reasonably practicable and would have tended to prevent the Second Respondent [ Mr Greenwood ] from behaving as he did."
The tribunal refer to the need for policies and setting out "acceptable boundaries of behaviour in company of other employees or prospective employees, or the consequences of transgressing such boundaries."[20]Mr Brown points out that it is inconceivable on the facts of this particular case that any Employment Tribunal could have concluded that those steps would or could have prevented the acts or the type of acts of Mr Greenwood complained of. He would refer to the evidence of the respondent that Mr Greenwood said to her that "sexual harassment is part of the job if you work for me."[21]But it seems to us that the defence arises where it can be shown by the employer that he has taken reasonable and practicable steps, the purpose of which is to prevent the act or acts or the description being committed by this employee. Of course it may be relevant for a tribunal to look at the facts of a particular case in order to assess whether the steps were reasonably practicable to prevent the conduct. However, it is not an ingredient of the defence, it seems to us, for that to be done. It is simply part of the evidence to be looked at. Of course in many cases warnings may not make a lot of difference, but that does not mean to say they are not reasonable steps and practicable steps designed to prevent certain actions. "No smoking" signs often do not stop people smoking, but that does not prevent them being reasonably practicable steps designed to prevent such an activity. It seems to us that the tribunal looked at the relevant steps that were relied upon; they found that the company policy statement fell short of steps which were reasonably practicable; they specified the type of steps that they found were reasonably practicable and concluded, as a finding of fact, that they would have tended to prevent Mr Greenwood from behaving as he did. We are of the view that it probably was not necessary for the Employment Tribunal to have asked themselves whether those steps would have tended to prevent the behaviour provided they were reasonably practicable ones designed to do so. But the tribunal went further on the facts in a way, it seems to us, they were eminently entitled to do.[22]We can understand the concern of genuine and caring employers to be found that they are liable in a case of this kind and, indeed, clearly the Employment Tribunal so understood as well. However, we would not adopt the suggestion that the respondents are small employers in terms of size in the context of modern employment conditions. They are a well-established, medium-sized company. But whether that is so or not it seems to us that there is no error of law discernible in the decision of the tribunal. They reached a decision which, on the facts, an Employment Tribunal could do within the law. Accordingly, there is no arguable point of law that can properly be taken in full before the Employment Appeal Tribunal and the appeal is dismissed at this stage.