HM PRISON SERVICE & OTHERS v MISS S DAVIS [2000] UKEAT 1294_98_2903

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] UKEAT 1294_98_2903

Case No Appeal No. EAT/1294/98

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

HM PRISON SERVICE & OTHERSAPPELLANT

MISS S DAVISRESPONDENT

Before

Mr Justice Lindsay

Date 29 March 2000

[1]APPEARANCES For the Appellants MR W HOSKINS (of Counsel) Instructed By: Mr A Turek The Treasury Solicitor Queen Anne's Chambers 28 Broadway London SW1H 9JS For the Respondent MR R WYNNE-GRIFFITHS (of Counsel) MR JUSTICE LINDSAY (PRESIDENT) : We have before us, by way of the full hearing of the appeal, the appeal of Her Majesty's Prison Service and Others in the matter Miss S.B. Davis against the Prison Service and Others. This is the second time the matter has come to the Employment Appeal Tribunal for a full hearing. The principal point now before the Employment Appeal Tribunal is a limited one but, even so, some explanation of the background is necessary. Miss Sonia Davis, a prison officer or then a probationary prison officer, lodged an IT1 claiming, inter alia , sex discrimination, sexual harassment and victimisation under the Sex Discrimination Act 1975 and amongst her complaints was one relating to the evening of 24 June 1995 (or it might have been a little later, the 26th) concerning a fellow-prison officer, a Mr Randall. There was a hearing of her complaints at the Employment Tribunal spread over some five days, from October 1996 to January 1997, here in Cardiff. On 23 January 1997 the first Tribunal decision was sent to the parties and what it said was this:

"(i) Unlawful Discrimination under the Sex Discrimination Act 1975 is established against: (a) HM Cardiff Prison (b) Mr Y [and he has since publicly become identified as Mr Randall] (c) Mr Lockley (d) Mr Davies (ii) The prison is vicariously liable for the discriminatory acts of its employees." [and Mr Randall, Mr Lockley and Mr Davies were employees of the Prison Service]. There are other findings there but that is all we need for immediate purposes. It may be as well to remind ourselves of the Sex Discrimination Act 1975, section 41 (1): "(1) 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."

And so one is going to find us concentrating on the expression "In the course of his employment".

[2]The Prison Service appealed that first decision and on 11 February 1998 the Employment Appeal Tribunal gave a judgment which, so far as concerns the limited points with which we are concerned, said this:

"Having considered these rival submissions we are unable to accept either in full. In our judgment the tribunal did not ask itself the correct question, that is, was Mr Randall acting in the course of his employment when he visited Miss Davies (sic) at her flat on 26th June 1995 and made unwanted sexual advances towards her? We decline to equate that question with the wrong question actually asked by the Industrial Tribunal, namely, was his conduct "in relation to employment'."

A little later, still on the same point, they said:

"Since the question, on a proper direction in law, is essentially one of fact for the Industrial Tribunal, we shall leave it to an Industrial Tribunal to decide, rather than reach a conclusion ourselves."

A little later (and this trespasses on a rather different point, but as we are quoting from the first decision we may as well get it behind us, so to speak) they also said this:

"It follows that this appeal must be allowed and the case remitted, at the request of all parties, to the same tribunal for: (1) determination of the question as to whether Mr Randall was acting in the course of his employment with the Prison Service when he behaved as the tribunal find he did towards Miss Davies (sic) at her flat on 26th June 1995. … Finally, we remit the case on the assumption that no further evidence will be necessary; the remitted hearing will proceed on the basis of submission only. However, it may be that one or other of the parties, or the Industrial Tribunal of its own motion, may wish further evidence to be adduced. In that event it will be for the Industrial Tribunal to give directions prior to the remitted hearing as to what further evidence is to be admitted."

[3]In that way the matter returned to the Employment Tribunal on 18 June 1998 and the second decision of the Employment Tribunal was sent to the parties on 9 July 1998 and it was this:

"The unanimous decision of the tribunal is that the act of Mr Y [Mr Randall] of which Miss X [Miss Davis] complained on 26 June 1996 [sic] took place in the course of his employment."

It transpires that no new evidence had been adduced. In their paragraph 3 the Tribunal says:

"In complying with this requirement we have had regard only to the evidence that was before us at the hearing [meaning at the first hearing]. "

Then, on 17 August 1998 the Prison Service appealed, of course, for the second time. But before we go into the Tribunal's reasons and so on and the attack on them, we need to say something a little more fully about the incident itself in June 1995.

[4]First of all, one sees from Miss Davis' own version in her IT1 the nature of the matter complained of. What she says there is this:

"At 10.00 pm on Saturday 24 June 1995 [that reference to the 24 th might be confusing, it may be the 26 th ] Sonia was at home when her intercom rang. She answered it and it was Officer Randall, a Prison Officer from Cardiff who asked what she was doing in on a Saturday night. He stated that he was with another Officer from the OCA Department and asked if they could come in for a few minutes. Sonia agreed and when he came up to the flat, she asked where the other Officer was as he was not present. Officer Randall appeared to be a bit drunk as he was staggering and slurring slightly. He sat down and Sonia asked what he wanted. He then informed her that he was having marital problems. Sonia asked him if he wanted to talk about it and he said only if they went to the pub over the road. Sonia agreed as he had been kind to her in the past and when she had lived in Grangetown he would sometimes give her a lift to work or back but this had not happened since she had been living in Penarth. They went to the pub and had a drink. Officer Randall asked if he could stay at her flat because he did not want to go home and Sonia refused his request saying that she did not want to be put in a compromising situation and would not allow it to happen. He tried to kiss her in the beer garden but Sonia told him to stop and again refused to let him stay. They then went back to the flat for a coffee and so he was able to pick up his jacket and decide where he was going to go. When in the flat Officer Randall asked if he could sit next to her on the settee and she agreed so long as he did not try anything. He then asked if he could have a closer look at her glasses which Sonia handed him. He handed them back and then pushed her back on the settee and began to grope her. She pushed him off and he stopped saying sorry. He then tried again, pushing her back on the settee and groping her and Sonia shoved him off her and started to scream "

Get Out" continuously. Officer Randall went to the toilet and Sonia had the front door open for him to leave. He started to say he was sorry and then groped her backside. Sonia was screaming and shouting, telling him to leave and to get off her. Another female in the block of flats witnessed this and asked her if she was alright." A little later, she said:

"A few hours later (early hours Sunday 25 June 1995) the intercom buzzer rang again. Jackie went to see who it was and it was Officer Randall and she gave the belongings he had left in the flat to him. He told Jackie that he had come to apologise and said that maybe he had come on too strong."

And then, again:

"On Monday 26 June 1995, around 8.00 am, Sonia was leaving to go to the shop, she opened the front door and Officer Randall was standing there. He tried to grab Sonia, she shrugged him off and ran back into the flat. She then rang the prison and spoke to PO O'Brian (Sonia's Principal Officer) and he said that they would go around to her flat. Prison Officers' Lockley and O'Brian went to her flat and then Jackie called around. Sonia told them what had happened, and she [was] still sobbing and crying and they rang the Police for her."

That, of course, is allegation and was not necessarily accepted but it gives the flavour of the sort of case that was in front of the Tribunal.

[5]From an early date the Treasury Solicitor on behalf of the Prison Service took the point that the incident was outside Mr Randall's employment. On 21 February 1996 the letter to the Regional Office of the Industrial Tribunal says, inter alia :

"I write to request leave to amend the Grounds of Resistance. I request that the Grounds be amended to include the following paragraph: 14a Further, and in any event, it is submitted that in respect of the allegations made by the Applicant concerning Mr Randall, the allegations which are denied, concern matters which arose outside the course of Mr Randall's employment. It is therefore submitted that the First Respondent, HM Prison Service, is not vicariously liable for the actions of the Second Respondent, Mr Randall, and further that Mr Randall has no liability under the Sex Discrimination Act 1975 in this respect. And, it is fair to say, because we have read out in some length Miss Davis' version, that the Respondent's version of events was that that series of allegations was greatly exaggerated. What the Treasury Solicitor on behalf of the Prison Service said, was as follows: "

The Report of the investigation into the allegations against Mr Randall concluded that some amatory activity took place and that the Applicant was violently upset by it. The Report did not conclude that any form of sexual harassment had taken place. The Report concluded that there may be a case to answer of Offensive Personal Behaviour. The Report recommended that Mr Randall be dealt with under paragraph 4.1 of the Code of Conduct and Discipline and that he be given formal guidance and advice as to his future conduct."

[6]The first Employment Tribunal hearing under the heading of "Evidence" said, on the question of the events of what seemed, by then, to have settled down as having been on the 26 June, in paragraphs 18 and 19:

"On 26 June Miss X telephoned the prison from her flat saying she had been subjected to a sexual attack by Mr Y with whom she had previously been on good terms and who had called round to discuss his domestic difficulties. She told the tribunal he had forced himself upon her and had pushed his tongue so far down her throat that she felt she was suffocating. Mr Y denied a sexual attack but accepted that he had attempted to kiss Miss X and that she had been very distressed. He saw her distress as an over-reaction. Mr Lockley and a colleague attended Miss X's flat on 26 June in response to her call and found her 'absolutely distraught and in a state of abject misery' and in 'a state of hysteria'. Under the prison's code of conduct and discipline officers 'must not' bring discredit to the Prison Service by their off-duty conduct. Mr Lockley reported the matter to the police and Miss X was put in touch with prison 'carers'. Under prison policy an internal investigation was shelved pending completion of police investigations. The prison was not in a position to suspend Mr Y or Miss X in the meantime due to inadequate staffing but it was ascertained that although they worked in the same wing they worked different shifts and were unlikely to meet."

A little later the Tribunal say, in their paragraph 37:

"On 8 September 1995 Miss X was informed in writing by the Crown Prosecution Service that they did not intend to prosecute Mr Y. The gist of their explanation was that there was insufficient evidence to support her word against his."

And a little later, in paragraph 39:

"An independent enquiry began on 23 October. My Y put in a written statement. Miss X was questioned at length as were Mr Lockley, Mr Davies and various other individuals. The interviews were taped and transcripts are before the tribunal. The transcripts show that the questioning was conducted courteously and thoroughly taking all relevant factors into account. In Mr Y's written statement however, there was no reference to how he had obtained the address, and there was no evidence to show that he had been required to give an explanation."

[7]That seems, we think, to be, in the course of the papers, the first reference to the relevance of Miss Davis' address, a matter which begins to have an importance as we go further forward. In their paragraphs 54 and 55 the Tribunal said:

"It was submitted that Mr Y discriminated against Miss X in subjecting her to the alleged sex attack. This is accepted. Mr Y did not deny that he had imposed his unwanted attentions on Miss X or that he had frightened her. The only disparity was as to the extent of his attentions. We make no finding as to the extent, but are satisfied on Mr Y's evidence and his statement to the investigators that he did impose his unwanted sexual attentions on Miss X with sufficient zeal to frighten her. He therefore subjected her to a 'detriment'. There was no suggestion that he would have imposed similar unwanted attentions on a male. We therefore find that he treated her 'less favourably' than he would have treated a man. In view of the requirement in the Prison's Disciplinary Code that officers, 'must not' allow their off-duty conduct to bring discredit on the Prison Service, we find that Mr Y's conduct was 'in relation to employment'. It therefore constituted unlawful discrimination within the meaning of sections 1 and 6 of the 1975 Act and 'a contravention of this Act' within the meaning of section 4."

[8]There, one sees the expression "in relation to employment" which, as the first EAT hearing pointed out, is not what the Act says. In their paragraph 67, the Tribunal says:

"We find also that the prison authorities subjected Miss X to a detriment in that the investigation of the Y incident which occurred in June did not take place until four months later and we are satisfied that they subjected her to that detriment as a result of discrimination on grounds of sex."

In paragraph 69, they say:

"It is hardly surprising that the police felt unable to prosecute Mr Y in the face of the presumption of innocence and the absence of witnesses. But the investigations required of an employer are far less stringent. An employer is merely required to act reasonably and to establish whether or not it has reasonable grounds for believing one version or the other and to take reasonable action accordingly. As it was the matter was allowed to drift for months, giving ample time for fermentation of gossip and rumour and for sides to be taken among inmates and officers."

In paragraph 71, they say:

"We find that in delaying the investigation the prison treated Miss X less favourably than a male, namely Mr Y, and subjected her to a detriment, and in the absence of satisfactory or adequate explanation the inference to be drawn is that it did so on grounds of sex and on the ground that she had made allegations against him."

In paragraph 77, which collects a lot of other findings, they say at 77 (i):

"Mr Y discriminated unlawfully against Miss X on grounds of sex in contravention of sections 1 and 6 of the 1975 Act in that in breach of the disciplinary code as to off-duty conduct he imposed his unwanted sexual attentions upon her causing her fear and distress, thus treating her 'less favourably' than he would have treated a man and subjecting her to a 'detriment'."

And then, at paragraph 77 (v):

"The prison discriminated against Miss X under sections 4 and 6 in that without adequate or satisfactory reason it delayed investigation into the 'Y' incident until four months after it had occurred thus treating her 'less favourably' than Mr Y and subjecting her to a 'detriment'. And, finally of the quotations, paragraph 77 (vii): "the prison is liable under section 41 of the 1975 Act for the discriminatory acts of its employees in that it failed to take reasonably practicable steps to prevent their discriminatory conduct."

[9]We now return to the Notice of Appeal and the Employment Tribunal's second set of reasons. The Employment Tribunal said that it took five factors into account in considering the issue of whether Mr Randall was acting in the course of his employment. It is right that we should take each of them in turn and look also at the Notice of Appeal by Mr Hoskins, on behalf of the Prison Service, in relation to each and, of course, the countervailing arguments of Mr Wynne-Griffiths, for Miss Davis.

[10]The first of the five is this; that in view of Miss X's evidence that she had recently moved and given her new address to the Respondents for their records and to no one else, Mr Y must have obtained the address through work, either directly or from someone who had access to the records. One notices it is held that Mr Y "must" have obtained the address in that way. We are bound to say we do not see that to be a proven matter. Why must Mr Randall have only got the address in such a way? Could he not, for example, have simply followed her from work? Mr Hoskins' Notice of Appeal says, in respect of this first point:

"It is submitted that if one obtains unauthorised information as to a fellow-employee's address from work records that can have no effect on whether acts performed at that address are done in the course of one's employment."

[11]It is plain that there was no direct evidence of how Mr Randall got the address and we have no Chairman's Notes. No one says that Mr Randall was asked directly on the point, nor what he would have said, or did say, because it seems not to have even been put to him. But, in our judgment the Appellant's answer, cited from the Notice of Appeal, suffices to deny weight to that first point, even if one was entitled to assume (which we see no reason to accept to be the case) that Mr Randall "must" have obtained the address from the records of the first Respondent.

[12]The second of the five reasons is dealt with in this way, by the Employment Tribunal, at paragraph 6:

"The second factor is that Mr Y was subject to a contract of employment which governed his conduct 24 hours a day, while on-duty and off-duty. The Disciplinary Code demanded that the conduct of members of the pension service 'on and off duty' must not bring discredit on the Prison Service. It provided for disciplinary action to be taken when an alleged criminal offence was committed 'away from the workplace'. It stated that any failure to meet the required standards of conduct 'undermines the work of the Service'."

[13]This is, in our view, a very unimpressive argument. If, for example, a man worked under a contract that said, as it might, that at all times he ought to exhibit consideration to others and cause no disquiet to those around him, would he be in the course of his employment if he snored at home and disturbed his wife or neighbour? The point is ridiculous. The fact that an employer can complain of activity outside employment does not make that activity inside the course of employment. Again, as it seems to us, the Notice of Appeal put in by the Appellant Prison Service seems adequately to meet the point. The answer given in (ii) of paragraph 6 of the Notice of Appeal is "The Appellants contend that this clause cannot bring within the course of employment all acts done by employees when off duty" and that is, in our view, a proper answer and no weight can be attached to this second of the five grounds.

[14]The third ground is as follows. The third factor is that the conduct of which Miss X complained affected arrangements in the workplace in that the Respondents ensured that shifts were so organised as to minimise the possibility of the parties meeting. One asks rhetorically, how can it be relevant to whether Mr Randall was acting in the course of employment to look at how the employer reorganised the individuals thereafter ?

[15]Mr Hoskins in his Notice of Appeal says, at paragraph 6 (iii):

"This merely demonstrates that the Respondents behaved responsibly after the incident. Such responsible behaviour cannot retrospectively change the status of the acts of the Second Respondent."

And that, it seems to us, is a sufficient answer to the point and no weight in our judgment can be given to this third ground.

[16]The fourth reason is this, at paragraph 8 of the Tribunal's reasons:

"The fourth factor is that after the complaint was made by Miss X the respondents reacted in such a way as to imply acceptance of responsibility for dealing with the situation. Upon being notified of the alleged sex assault they took immediate action. They visited Miss X in her home, provided her with the company of a nurse/counsellor, put her in touch with prison 'carers', reported the matter to the police, arranged work shifts to avoid contact and, in due course, investigated the matter and disciplined Mr Y in accordance with the disciplinary code to the extent that they gave 'guidance and advice as to his future conduct'."

[17]But, again, that is a matter that arose after the event. It is hard to see how the question of whether, at an earlier point, Mr Randall was acting within or without the course of his employment can be affected by how the employer responded thereafter. Mr Hoskins' Notice of Appeal, at paragraph 6 (iv), says:

"As submitted above, the First Respondents did display concern over an incident distressing to their employee. This cannot retrospectively affect whether that incident was within the course of employment. Nor does it indicate that they regarded the incident as bound up with the duties of employment. Such disciplinary action as was taken was not dependent upon the victim of the act having been a member of staff."

This fourth ground seems to us to be devoid of any weight.

[18]The fifth and last of the five reasons is this, at paragraph 9 of the Tribunal's reasons:

"The fifth factor is that the case appeared to be argued by the respondents on the basis that Mr Y was acting in the course of his employment, in that they did not raise the issue at the hearing and made no suggestion to the contrary."

We have earlier drawn attention to the point having been raised by the Prison Service and the Notice of Appeal says, at paragraph 6 (v):

"The Tribunal erroneously states that this issue was not raised in the original hearing by the Respondents. It was in fact raised in the Amended Notice of Appearance. In any event, when considering an issue remitted by an appellate body it is wholly irrelevant whether that issue was raised at first instance."

[19]All in all, it seems to us that not one of the five factors listed as the matters to which the Tribunal gave consideration could carry weight on the question of whether the incident was in or out of the course of employment. Not one of them is a factor of any real and material gravity. Mr Hoskins' Notice of Appeal draws attention to a number of other points: Mr Randall was not found to have been on duty during his visit; the pointers, such as that he was apparently visiting socially, that he had been out for a drink himself and that he invited Miss Davis out for a drink all point to him having been off duty. There is certainly no finding that he was on duty. He was not on the employer's premises but at a pub and at Miss Davis' premises and the occasion began socially. They drink together in the pub and they return socially to her flat. Apart from the possibility (and it is only a possibility) that he had obtained her address from a colleague at work (and that was unproven) his visit seems to have taken advantage of no particular connection with work, save only that it seems they must originally have met at work. It is not as if he was held to have, so to speak, pulled rank on her or given orders to her or threatened that he would cause difficulties for her at work unless she let him have his way or anything of that nature. It is not proven to be that sort of case and there seems to be, therefore, the very most slender of connections with work.

[20]In the Jones v Tower Boot Company case

[1997] IRLR 168

, where Waite LJ said, at paragraph 43: 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 to 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." And then, a little later, in Waters v Commissioner of Police of the Metropolis

[1997] IRLR 589

, 597 at paragraph 82, dealing with the case there in front of him, Waite LJ said:

"T and the applicant were off duty at the time of the alleged offence. He lived elsewhere, and was a visitor to her room in the section house at a time and in circumstances which placed him and her in no different position from that which would have applied if they had been social acquaintances only, with no working connection at all. In those circumstances it is inconceivable, in my view, that any tribunal applying the Tower Boot test could find that the alleged assault was committed in the course of T's employment. This ground of appeal therefore fails."

[21]The Tribunal in our case purported to distinguish the Waters' case. We are far from sure how valuable it is to try and compare the facts of one case with the facts of another. What one should really be seeking to extract are principles but, so far as it is relevant, in our judgment there is no real ground for distinguishing between this case and the Waters case. The Waters case was a case where the incident was at the section house, as that citation shows, in other words on the premises of the common employer and that, of course, is a feature which is absent from our case so that in a sense the Prison Service here is a fortiori the position of the Commissioner of the Police of the Metropolis in the Waters case.

[22]The five reasons given by the Tribunal for its conclusion carry no conviction for the reasons we have given and the decision therefore becomes one for which five reasons were given, but none of which stands up and hence it becomes, in effect, a decision which is bereft of any reason, which is an error of law. On this first part of the case we must set aside the decision of 9 July 1998; in other words, we set aside the single finding that 'the unanimous decision of the Tribunal is that the act of Mr Y of which Miss X complained on 26 June 1996 took place in the course of his employment'. But that leaves another issue.

[23]The first decision of the Employment Tribunal held (and this is paragraph 77 (v)):

"The prison discriminated against Miss X under sections 4 and 6 in that without adequate or satisfactory reason it delayed investigation into the 'Y' incident until four months after it had occurred thus treating her 'less favourably' than Mr Y and subjecting her to a 'detriment'."

The first Employment Appeal Tribunal had considerable difficulty with that. What they said was this:

"Having heard Mr Wynne-Griffiths in reply on this part of the appeal we are quite satisfied that the tribunal's reasoning leading to the conclusion in paragraph 77 (v) is so opaque as to require remission for a proper explanation of that finding to be given."

[24]We are not sure that that was a proper response on the part of the Employment Appeal Tribunal. If there is no visible and understandable reason given for a particular conclusion, it might be that the proper course is to set it aside and to remit for a fresh conclusion with fresh reasons, but anyhow that was not done. What the Tribunal said was this:

"It follows that this appeal must be allowed and the case remitted, at the request of all parties, to the same tribunal for: (2) reasons to be given for their finding at paragraph 77 (v) which identify: (a) the less favourable treatment, and (b) the comparison made between Miss Davis and Mr Randall. (c) why the explanation for such less favourable treatment given by the Prison Service was unsatisfactory such as to give rise to an inference of direct discrimination on the grounds of sex. (d) [and this is not entirely easy to read] the causal link between what protected act and the less favourable treatment for the purposes of s.4, bearing in mind that the protected act must relate to a complaint of unlawful discrimination under the Act."

[25]That was the direction that was given to the Employment Tribunal. They heard the matter a second time and what they said was this, in their paragraph 21:

"The reasons have all been given in the tribunal's decision. They are so full and explanatory that we see little purpose in repeating them. We therefore merely refer to the relevant paragraphs in the same order (a) to (d) as the EAT sets out its requirements: (a) Paragraphs 67 to 71 (delay causing 'fermentation of gossip', sides taken, public opinion in Y's favour, X subjected to daily insults and humiliation, her life became 'hell', complaint against female (Miss X) to be investigated 'with all speed', complaint against male (Mr Y) delayed. (b) as in (a) (c) Paragraphs 69 to 70. (d) 'protected act' – paragraph 55 final sentence; 'less favourable treatment' – as in (a); 'causal link' – paragraph 71 (inference drawn from absence of satisfactory or adequate explanation)."

[26]That, in our view, is a profoundly unhelpful response to the questions raised by the first EAT judgment. It is to be remembered that discrimination is essentially a comparative exercise. The second Employment Tribunal had received argument on the point in their paragraph 24, they say:

"Mr Hoskins contends that the policy of delay pending police investigation would have applied equally had a male complained against a female attacker."

[27]And then they say, in paragraph 25, "That may be so". Once it was accepted that that might be so, it seems to us the foundation for a complaint of direct sex discrimination was very substantially undermined. Whether a case could have been made in indirect sex discrimination such, for example, that although male and female ostensibly were treated the same by way of the policy of delaying until police investigation was concluded, that such policy, although ostensibly equal-handed, had consequences that were adverse more to females than to males - whether some indirect claim in sex discrimination of such a kind could have been raised, could have perhaps have been a matter for argument but there is no suggestion in the IT1 that such a case ever was raised and, of course, we have no Chairman's Notes.

[28]But the Tribunal on its second occasion, said this. Having received the contention of Mr Hoskins that "the policy of delay pending police investigation would have applied equally had a male complained against a female attacker", they continue as follows, at paragraph 25:

"That may be so but the probability is that then the delay would still have favoured the male. In view of the huge predominance of male officers as opposed to the six females [see paragraph 3], the probability is that sides taken throughout the delay period would still have built up in favour of the male and that the female's life would still have been made 'hell'. Also it is improbable that a male would feel as physically intimidated as a female by the prolonged daily proximity of the attacker. In our view delay in the circumstances of an alleged sex attack is discriminatory as stated in our decision."

[29]Mr Wynne-Griffiths accepts that no such numerical approach was raised below and there is no indication in the first decision of the Tribunal of any evidence having been received to such effect as could have led to the conclusion in paragraph 25. The matter had been dealt with on the first occasion very much by way of generalities. In paragraph 68 of the first decision, one finds this:

"In our view the explanation as to a prison policy of shelving investigation until police enquiries are complete is not satisfactory in an incident of this nature where the victim of an alleged attack is obliged to continue working in the same premises with the alleged attackers, though on different shifts. In our view speedy action is essential in the circumstances of an alleged sex attack, particularly where, as was the case here, the parties are required to continue working because of lack of manpower and where there is a risk of their meeting."

[30]That had led to the rather confusing finding that we have already quoted that spoke of Miss Davis being treated less favourably than Mr Y. So far as we can tell this conclusion is on a topic which had not been part of the complainant's case and it is tempting to set aside the whole of the decision at paragraph 77 (v) and it is, of course, Mr Hoskins' case that that is what we should do.

[31]However, the Tribunal seems to recognise a distinction which Mr Hoskins invited it to draw between two separate periods of delay. The first is from 26 June 1995 to 8 September 1995 and the second is from 8 September 1995 to 20 October 1995. In the earlier period the Prison Service was awaiting the outcome of the police investigation and the evidence, it seems, was that that was its habitual practice, regardless of the gender of either the complainant or the accused and it is indeed, a common enough practice, one adopted in various walks of life and not one which could fairly be described as unreasonable without a reason having been provided. As to the later period, from 8 September 1995 to 20 October 1995 the position was that on 8 September the Prison Service were told by the Crown Prosecution service that there would be no prosecution and yet, even so, it took from 8 September 1995 to 20 October 1995 to get an investigation into the "Randall" incident on course. And of that period the Tribunal said, after speaking of Mr Hoskins having invited them to draw a distinction between the two periods, "There was no satisfactory explanation for the six-week delay because there was no explanation at all".

[32]Given that the second Tribunal accepted that the first period of delay may have been occasioned by a non-discriminatory policy or at least by a policy which we can only see to be non-discriminatory and that the only way in which it was found to be discriminatory was on the basis of their numerical approach and an argument which was not argued, and with a confusing reference to Mr Y embodied in it, we ought to set aside the first Tribunal's judgment so far as the first period is concerned, from 22 June 1995 to 8 September 1995. But as to the second period of sex weeks there was no explanation for the delay.

[33]The ability of the Tribunal to infer discrimination in the absence of a good explanation thus arose in relation to the second period in a way in which it did not arise in respect of the first period and the Tribunal, after all, did find prejudice in relation to that period. We could, of course, set aside the whole holding and remit for a fresh decision as to the second period but it is to be remembered that already the matter has had the long procedural history that we have described and a second remission would mean yet further delay, yet further costs, yet further uncertainty amongst the parties and continuing anxiety, no doubt, on part of the parties. The events after all are already stale. It may be a little bold on our part but we think that the better course, upon our setting aside the whole of the decision at paragraph 77 (v) on page 37, as we now do, is then to replace that with a decision relative to the second period.

(v) would now read as follows:

"The prison discriminated against Miss X under sections 4 and 6 in that without adequate or satisfactory reason it delayed investigation into the 'Y' incident from 9 September 1995 to 20 October 1995, [crossing out the words "until four months after it had occurred thus treating her 'less favourably' than Mr Y"], [but then adding at the end] 'thereby subjecting her to a 'detriment'."

[34]That is a bold course but given the length of time that the matter has already taken and the points of law that have been ventilated in front of us, it seems to us the most just and practical response to the argument that we have heard. So we allow the appeal. As to paragraph 77 (v), we strike out the whole of paragraph 77 (v) as it is at the moment, but then replace it with the amended paragraph 77 (v) which we have just read out. That, we think, represents here, unless the parties invite us to deal with other points, all we need do at this juncture.