MRS F M INWOOD v BIFFA WASTE SERVICES LTD [2000] UKEAT 208_00_2306

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 208_00_2306Case No Appeal No. EAT/208/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS F M INWOODAPPELLANTBIFFA WASTE SERVICES LTDRESPONDENT
Before
MISS RECORDER ELIZABETH SLADE QCMR I EZEKIELMR B R GIBBSDate 23 June 2000
[1]APPEARANCES For the Appellant MR R ASCOUGH (Representative) GMB Legal Department Cooper house 205 Hook Road Chessington Surrey KT9 1EA MISS RECORDER SLADE QC : This is the preliminary hearing of an appeal brought by Mrs Inwood against the dismissal of her complaints of unlawful sex discrimination and unfair constructive dismissal by an Employment Tribunal held at Reading. The brief relevant background to the complaints and the grounds of appeal is that Mrs Inwood had received unwanted attention including telephone calls from a male supervisor, Mr Heaver. Having received such telephone calls at home, she eventually made complaint about them and a meeting was convened on 8th February 1999 at which complaints about the telephone calls were considered. Mr Heaver was spoken to about the matter and, according to the findings of the Tribunal, after having been spoken to his attitude towards Mrs Inwood changed. The Tribunal records in their decision that:
"18. … The Applicant in evidence agreed that any issue relating to sex discrimination or sexual harassment ceased in January 1999. …" and that what happened thereafter, it appears, was that there was a change in attitude and approach by Mr Heaver towards Mrs Inwood. The Tribunal find that: "10. … As far as the Applicant perceived it she was being cold-shouldered by Mr Heaver."
[2]There then occurred an incident on 20th and 21st May 1999 in which the Tribunal find that there was some trouble over documents in Mrs Inwood's tray. Mr Heaver gave evidence that he was annoyed and Mrs Inwood gave evidence that he had flown into a rage. So far as she was concerned, that was the final straw. Following that incident, Mrs Inwood left and complained of constructive dismissal.[3]Mr Ascough, who appeared before us, as he did before the Employment Tribunal, has presented Mrs Inwood's case very persuasively. He seeks to argue that the Tribunal erred in its approach to whether the unsolicited telephone calls constituted sexual harassment. If that ground were of importance in itself, we can see some argument against the Tribunal's approach to those telephone calls. It could be said that it is not necessary that the telephone calls should of themselves have a sexual content for them to constitute sexual harassment. If the telephone calls are unwanted and would not have been made to a man, there are reasonable grounds for arguing that making them could constitute sexual harassment.[4]However, the telephone calls ceased in early January 1999. The Tribunal considered the question of whether they should be the subject of complaints of sex discrimination to be heard before them. It held that it would not have exercised its discretion to allow complaint of those telephone calls, since they occurred more than three months before the presentation of the complaint before them, and they considered that it was not just and equitable to consider complaints relating to them.[5]The Tribunal then considered events after the 8th February meeting. They considered whether events after that date could be rightly said to constitute sex discrimination. In paragraph 20 of their decision they reject the argument summarised in paragraph 19, advanced by Mr Ascough. The Tribunal consider that had a man complained about Mr Heaver's behaviour, then Mr Heaver would not have treated that man any differently than he treated Mrs Inwood.[6]Mr Ascough before the Employment Tribunal and before us presented Mrs Inwood's complaint as a complaint of sex discrimination, not one of victimisation. He does not say, and he was asked by us about this, that Mrs Inwood was treated detrimentally after 8th February because she had raised a complaint against Mr Heaver, which could be said to have had its origins in sexual harassment. So the case advanced on her behalf is not one and was not one of victimisation. It is said that there was continuing sexual harassment after 8th February and that the Tribunal erred in failing to find that there was a continuing act of sex discrimination.[7]Having heard Mr Ascough's careful submissions, we come to the conclusion that there is no reasonable arguable point of law in these grounds of appeal. Accordingly the appeal is dismissed. The Tribunal correctly considered in paragraph 20 a hypothetical male comparator in considering the case of direct sex discrimination being made to them in respect of the change in treatment after 8th February. We reject Mr Ascough's contention that the Tribunal erred in failing to hold that the supervisor's behaviour after 8th February constituted a continuing act of sex discrimination. So far as the sexual harassment, which had been the subject of complaint at the meeting of 8th February is concerned, there is no arguable error of law in the refusal of the Tribunal to exercise their discretion so as to consider those matters. Accordingly the appeal is dismissed.