MISS A GAYLE v W M BARROWCLIFFE GROUP LTD [2000] UKEAT 413_00_1610

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 413_00_1610Case No Appeal No. EAT/413/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS A GAYLEAPPELLANTW M BARROWCLIFFE GROUP LTDRESPONDENT
Before
Sir Christopher BellamyDate 16 October 2000
[1]APPEARANCES For the Appellant MR A HASSAIN (Pupil Barrister) 1 Meredith Close The Meadows Nottingham NG2 1PH SIR CHRISTOPHER BELLAMY QC : This is an appeal from the decision of the Employment Tribunal sitting at Nottingham and dated 8th February 2000. It comes before us by way of preliminary hearing in order to determine whether the appeal raises a reasonably arguable point of law. The applicant's claim before the tribunal was founded on three matters set out in paragraph 1 of the extended reasons:
"(i) sexual discrimination by harassment by her Manager, Mr Barratt; (ii) that the failure to investigate her allegations of sexual harassment was itself for a discriminatory reason; (iii) that her dismissal by the respondent was by reason of her sex and/or an act of victimisation because of the complaint she had previously brought."
[2]The tribunal heard evidence over four days. As regard the main allegation of sexual harassment against Mr Barratt, the tribunal came to the conclusion at paragraph 3 of its decision that the allegations put forward by the applicant were untrue. In fact what occurred in this case was that disciplinary proceedings were being conducted against the applicant following an incident on 26th May 1999. The allegation of sexual harassment against Mr Barratt was raised specifically at the end of the disciplinary hearing on 9th June, Mr Barratt being the manager who was conducting the hearing. The tribunal further found, in paragraph 14 of its decision, that the allegations put forward by the applicant were false and were being done to deflect the disciplinary action and were not made in good faith.[3]As regards the second part of the case advanced before the tribunal, whether the failure to investigate her allegations of sexual harassment was itself for a discriminatory reason, the tribunal first found, at paragraph 12, that the way those matters were investigated was:
"… seriously flawed, particularly by the very close involvement of Mr Barratt, who was the alleged harasser."
[4]It appears from paragraph 10 of the tribunal's decision that what happened was that the applicant's allegations against Mr Barratt were shown to Mr Espinasse, the Managing Director, who told a senior manager, Mr Szkrobot to investigate. Mr Szkrobot did so by going down to the part of the factory where the applicant's colleagues were working to ask if there was any truth in the applicant's allegations. He then went on holiday and left it for Mr Barratt to go through the witness statements and have them ready for him on his return from holiday. The statements were prepared and signed in the presence of Mr Barratt, although they were nominally witnessed by a secretary. When Mr Szkrobot returned from holiday and in an effort to make the grievance system fair, he arranged for two managers under him to review the papers. They confirmed that he was justified in rejecting the grievance. Mr Barratt then resumed the disciplinary hearing.[5]What the tribunal found about that, as I have said, was that the investigation was flawed because of the close involvement of Mr Barratt, against whom the allegations had been made. However, that is not the end of the matter because here the applicant has to prove discrimination, and on that point the tribunal found as follows:
"12 … Nevertheless, it is obvious that the respondent's employment practices are seriously deficient and we are satisfied that the grievance was dealt with in the way that it was because the respondent believed, and had reason to believe from the beginning, that there was no substance in it. That is not itself a discriminatory reason. Failure to follow any sort of good practice in such an investigation and the incompetence of the investigation, was not because the applicant was a woman, nor because it was a harassment allegation."
So there is a clear finding that although the procedures were defective, there was no discrimination involved and so on that basis the tribunal dismissed the second part of the complaint.[6]As regards the third part of the complaint, as we have already observed the tribunal held, in paragraph 14 of its decision, that the applicant was putting forward false allegations. To the extent that those allegations may have been a small factor in her dismissal, as mentioned in an answer to a question by the tribunal by Mr Szkrobot, the tribunal held, in paragraph 14, that the victimisation provisions in section 4 of the Sex Discrimination Act 1975 did not apply for the very reason that those allegations as put forward by the applicant were false and being advanced in bad faith.[7]That being the tribunal's decision, on this appeal the applicant has put forward a number of grounds of appeal. Firstly, Mr Hussain on her behalf challenges the tribunal's approach to the evidence as regards the applicant's complaints of sexual harassment. He emphasises in particular that a previous complaint she had put forward of racial discrimination had not been dealt with by the company and that was one reason why she was reluctant to advance the complaint of sexual harassment.

(b) of its findings that:

"It is therefore very striking that the applicant was unable to call any evidence to show that she had made earlier complaints about Mr Barratt, as she had claimed."
[8]On this aspect of the matter, the applicant has to meet the very high standard of showing that the tribunal's conclusion to the effect that the alleged acts of sexual harassment did not happen was perverse on the evidence before them. The tribunal has referred in its decision at paragraph 4(d) to the fact of an earlier complaint of racial discrimination had not been properly pursued, and it is clear from paragraph 4(b) that they were aware of her arguments as regards to the complaints to the Racial Equality Council and the evidence from her doctor. In those circumstances it is for the tribunal to decide on the evidence where the truth of the allegation lay and we can detect no error of law on this aspect of the case. In paragraphs 3 to 5 of the decision the tribunal came to very clear conclusions that they were not prepared to accept the applicant's evidence of sexual harassment.[9]As regards the second argument advanced by the applicant, that the tribunal made an error of law in not sufficiently recognising the inadequacy of the investigation into the allegations of sexual harassment, the tribunal has itself recognised that the investigation itself was seriously flawed. So that is not in dispute in this case. The question is what are the legal conclusions to draw from those flaws in the investigation? In that regard, the applicant has not satisfied us that there is any error of law in the tribunal's factual conclusion, in paragraph 12 of its decision, that the grievance was dealt with in the way it was because the respondent's practices were generally deficient and because the respondent company believed that there was no substance in the applicant's allegations and, more importantly, had reason to believe that there was no substance in the applicant's allegations. In other words, the tribunal took the view that the applicant's allegations were being advanced in bad faith from the beginning. The tribunal went on:
"That is not itself a discriminatory reason. Failure to follow any sort of good practice in such an investigation and the incompetence of the investigation, was not because the applicant was a woman, nor because it was a harassment allegation."
We can detect no error of law in that finding on the part of the tribunal.[10]As regards other points raised by the applicant, we are not able at this appeal stage to go into various other factual allegations that have been made about some apparently alleged changes to the transcript of the minutes of the disciplinary hearing nor into whether or not undue weight was put on the evidence of certain witnesses or the conduct of the case below, in so far as those matters are not raised in the Notice of Appeal and are not dealt with by the tribunal in its decision.[11]The same considerations apply to what is effectively the last point made by the applicant regarding the alleged failure of the respondent company to incorporate a recommendation by the Commission as to a Code of Practice on the Protection of the Dignity of Women and Men at Work. We do not know whether that point was raised before the tribunal or not, but irrespective of whether or not it was raised, the problem again is that it was accepted by the tribunal that the investigation itself was flawed. The issue was not whether or not there was a code but whether or not there was discrimination and we are unable to detect any error of law in the tribunal's finding upon that point.[12]On the final part of the case, concerning the allegation of victimisation, the findings of the tribunal in paragraph 14 have not been seriously challenged before us.[13]We therefore find that there is no reasonably arguable error of law in this case and the appeal must therefore be dismissed.