JOSHUA & USMAN SOLICITORS JOSHUA ATIKPAKPA v MS ANGELA OMERHI [2001] UKEAT 0486_01_1906

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0486_01_1906Case No Appeal No. EAT/0486/01 & EAT/1480/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
JOSHUA & USMAN SOLICITORS JOSHUA ATIKPAKPAAPPELLANTMS ANGELA OMERHIRESPONDENT
Before
MR COMMISSIONER HOWELL QCMR S M SPRINGER MBEMR K M YOUNG CBEDate 19 June 2001
[1]APPEARANCES For the Appellants RYAN CLEMENT (of Counsel) Messrs Joshua & Usman Solicitors Lord Denning Court Grummant Peckham London SE15 5PZ MR COMMISSIONER HOWELL QC We have before us for Preliminary Hearing two appeals by a firm Joshua & Usman Solicitors, and Mr Joshua Atikpakpa who is the senior or sole partner in the firm, against decisions of Employment Tribunals given on complaints by Ms Angela Omerhi who was a former trainee solicitor and employee of the firm until she left on 7 March 2000 in circumstances which she contended amounted to unfair constructive dismissal following acts of sexual harassment against her.[2]These complaints, made in the first set of proceedings, were found justified by the London South Employment Tribunal for reasons they gave in Extended Reasons sent to the parties on 13 October 2000 after hearings and further consideration on 17 and 18 August 2000 and 11 October 2000. The second set of proceedings begun by Ms Omerhi on 23 August 2000 alleged victimisation on the part of the two Appellants before us, in having made false accusations against her to the Office for the Supervision of Solicitors, which is the part of the Law Society dealing with accusations of improper behaviour by solicitors, and to the Police. Her complaint of victimisation on those grounds by reference to the protected act of having initiated her first set of proceedings alleging, among other things, sexual harassment, was also found proved by a different Tribunal also sitting at London South for reasons they gave in Extended Reasons sent to the parties on 23 February 2001 after hearings on 30 and 31 January 2001.[3]The background to the complaints and the events giving rise to them were set out in the decision of the first Tribunal at paragraphs 17 and following of their Extended Reasons at page 11. Ms Omerhi was a woman aged 31 who 5 years previously had passed her solicitor's final exams and in order to be admitted on to the roll she had to complete a training contract or gain exemption from training. She had had difficulty in gaining a training contract and in late 1998 by arrangement with a member of her family she had been taken on by Mr Atikpakpa into his firm, which is a firm having about twenty staff, practising in Peckham. As recorded by the first Tribunal the practice describes itself as a general legal practice providing for all legal needs and requirements of individual and corporate clients, locally, nationally and internationally. The firm had commenced business incorporating a previous firm (Usman & Co) on 1 October 1998, and besides Mr Atikpakpa himself, there were four associates, two consultants, three trainees and three paralegals. Mr Atikpakpa had agreed to take on Ms Omerhi as a paralegal with a view to obtaining a training contract. She had commenced that employment with the firm on 1 February 1999. She had worked as an assistant to another member of the firm without problems for part of 1999 but after he left she began reporting directly to Mr Atikpakpa and, as recorded by the Tribunal at paragraph 20 of their Extended Reasons:
"She then began to receive unwanted sexual attention from him. He asked to take her out to dinner and she pretended not to hear. On the second occasion when he asked her to dinner she suggested that it was not a good idea and in any event she could not afford to go out to dinner on her salary. He replied by saying that the type of dinner he had in mind would not cost her anything. She ignored that. But he repeated the invitation later. On another occasion when she took some papers to his office he put his arm around her waist and began to move his hand backwards and forwards around her waist. She quickly moved away from him and was embarrassed, leaving the room as quickly as possible. He would regularly put his hand on her face and stroke her cheek. She found these actions to be over-familiar and limited her contact with him as much as possible. This went on until a new system was introduced whereby she could leave documents in folders outside his office. and as recorded by the Tribunal in paragraph 22: "
Because Mr Atikpakpa was head of the firm she could not complain to anybody senior to him nor could she complain to the Practice Manager, because he was a relative of Mr Atikpaka. She therefore complained to Doctor Martinez-King, a Consultant at the firm. She, however, informed Ms Omerhi that she had been subjected to similar and indeed more serious sexual harassment from Mr Atikpakpa."[4]On 15 September 1999 Mr Atikpakpa had suspended Ms Omerhi on suspicion of leaking confidential information about the firm to Mr Otah, the person with whom she had previously worked until he left in about August 1999. The practice manager investigated the allegations and found them to be groundless. Ms Omerhi was reinstated. There then followed a number of further difficulties and eventually there were the events which led to Ms Omerhi resigning from the firm, for reasons which she stated in a letter of 7 March 2000 as follows:
"I can no longer work with someone who has complete lack of respect for his employees and habitually treats them with a blatant disregard. Due to a catalogue of events, which I have been subjected to since the departure of Mr Otah, my position within your firm has become untenable. I therefore put you on notice that I will be initiating proceedings against you for constructive unfair dismissal in this regard. Furthermore, I will bring an action for breach of contract as you have clearly breached the terms of the memo dated 17 December 1999 (incorporated into my contract of employment), sexual harassment and breach of the statutory minimum wage."
I should have said that, as recorded by the Tribunal in paragraph 21, the firm had an Equal Opportunities Statement which clearly stated that sexual harassment and discrimination of any kind would not be tolerated in the firm and amounted to gross misconduct, and it was apparently to that that Ms Omerhi was referring in her letter of resignation. As the Tribunal recorded as a fact, they were satisfied that her resignation had been prompted by the matters to which she referred in that letter and had not been for other reasons. As they said, had it not been for Mr Atikpakpa's conduct in not paying her proper wages and sexually harassing her, she would have stayed on as a paralegal or assistant solicitor while looking for other work, which, as they also recorded, she had not been able to find for some time after leaving the firm.[5]Following that letter and the lodging of her Originating Application dated 8 March 2000 in the first set of proceedings, recorded as received by the Tribunal on 9 March 2000 and amended on 13 March 2000, a letter had been written by a member of the firm, Mr Edada, to Ms Omerhi accusing her of removing boxes of files belonging to the firm. That is referred to in paragraph 31 of the first Tribunal's Extended Reasons but comparing it with the actual letter, which has been helpfully supplied to us by Mr Clement, who has appeared before us on the Preliminary Hearing of this appeal on behalf of both Appellants, it is clear that it has been misquoted in the Tribunal's Statement of Extended Reasons and what it actually said was as follows:
"Dear Ms Omerhi Re: THEFT OF FILES We are writing to request that you return all files belonging to Joshua & Usman Solicitors forthwith. On or about 3 rd March 2000 you were seen removing a box of files from this premises. On or about 7 March 2000 when you resigned, you removed all the files under your folder in the computer. You also removed all files under the folder of Mrs Cassandra King. If you do not return the above mentioned within the next 7 days we will report your actions to the Law Society and without further notice we will issue a writ in the High Court. We expect to receive our property without further ado."
[6]Ms Omerhi replied to that denying that she had taken physical files out of the office that she was not entitled to take. As was recorded by the first Tribunal in paragraph 31, the only documents she had removed from the office were files to take to the Employment Tribunal for a case in which the firm was acting, and those files had been retained by the Tribunal. The firm later accepted that to be true so that the accusations of theft of boxes of files from the premises were unfounded. She explained the deletion of files from her computer folders as being in accordance with the firm's practice because the hard copies of the letters were in the files, that is the written files. As recorded by the first Tribunal:
"That answer contained in a letter of 29 March was in our view a complete answer to the complaint"
However, on the previous day, 28 March, without waiting for that reply, the Respondents had reported the matter to the Law Society maintaining the accusations of theft against her; though because the Respondents were unable to provide any substantiation for that accusation the complaint had not in fact been taken forward by the Law Society.[7]Those actions by the Respondent firm, following the Applicant's resignation and the presentation of her complaint for unlawful dismissal and sexual harassment to the first Tribunal, were the main subject matter of the second complaint to the Tribunal: that she had been victimised for having presented that complaint. They were also the subject matter of some extremely adverse observations made by the first Tribunal when the first set of proceedings came before them, when it appeared on the day fixed for the hearing that the Respondent firm and Mr Atikpakpa had done nothing at all in any genuine sense by way of preparation to meet the real issues in the first set of Tribunal proceedings; but had in fact been, as the Tribunal found, pursuing the alternative ploy of unfounded complaints against Ms Omerhi to the Law Society with the obvious intention of frightening her off and had done that in place of having taken any genuine steps to defend the Tribunal proceedings. Accordingly, when the matter came on for hearing on 17 August 2000 and the Respondent firm had not even attended before the Tribunal, enquiries were made by the Tribunal, when the explanation for their non attendance was unsatisfactory. As recorded in the first Tribunal's Extended Statement of Reasons at pages 4 and following, the Tribunal gave the Respondents an opportunity of attending before them by Counsel in order to show cause why their conduct of the litigation should not be treated as frivolous and vexatious leading to their Notice of Appearance being struck out under Regulation 13(2)(e) of the rules, scheduled to the Employment Tribunals Constitution and Rules of Procedure Regulations 1993 .[8]One of the major grounds put forward by Mr Clement on behalf of the Appellants is that the Tribunal erred in the approach they took to this. Accordingly it is necessary to set out the Tribunal's description of what had happened procedurally, and the reasons why they took the step they did of striking out the firm's and Mr Atikpakpa's Notice of Appearance on the issue of liability in the first set of proceedings. They first recorded that the Originating Application had been copied to the Respondents on 9 March 2000 and that a Notice of Appearance covering both Respondents but denying the Applicant's complaints had been sent on 31 March. A Chairman, on 5 April 2000 had given express directions for the setting down of the case for hearing directing that:
"3 (a) the case be set down for hearing for two days; (b) not later than 28 days before the hearing each party should send to the other copies of all documents relied on at the hearing and (c) no later than 14 days before the hearing the parties should exchange written statements of the evidence of their witnesses (d) On 7 April the parties were given notice that the hearing would take place on 17 and 18 August at 10.00am each day."
In the Tribunal's words what then happened was as follows:
"4 The Respondent firm did nothing about its preparation at all. They did nothing to prepare Mr Akikpakpa's witness statement nor did they take any other witness statements nor apparently did they assemble a file of papers. When contacted by the Applicant they did not exchange documents. Therefore on 20 July, the Applicant wrote to the Tribunal complaining that the Chairman's directions had not been obeyed. The Chairman therefore instructed staff to write to the Respondents and a letter was sent on 24 July pointing out their failure and warning them of the danger of the case being struck out in accordance with Rule 4 of Schedule 1 of the Employment Tribunal's Rules and requesting a reply within 14 days. 5 By a letter received on 9 August signed by Mr Edada, the Head of the firm's employment department and a partner, an apology was made and it transpired that Mr Atikpakpa had gone to Nigeria on 2 August to see his sick father. However, Mr Edada sent the two documents upon which the Respondents relied. 6 The Respondents similarly failed to exchange witness statements and Ms Omerhi also complained to the Tribunal of that. 7 On 17 August, the day appointed for the hearing, the Tribunal assembled at 10.00am. The Applicant attended with Counsel but the Respondents did not appear. The Tribunal Clerk therefore telephoned the Respondents, who said that they had overlooked the hearing and would attend at 2.00pm to ask for an adjournment. The Tribunal therefore considered the matter and told the Respondents they would start the case at 1.30pm and in the meantime read the bundle of documents produced by the Applicant together with her witness statements. 8 Partners in the Respondent's firm (but not Mr Atikpakpa who was by now back in the country) attended at 2.00pm. Mr Edada took responsibility saying that he had noted the case in the diary for 23 September. He acknowledged that nothing had been done to prepare the case and asked for an adjournment. He further said that Counsel had been instructed and was on his way. We then learned that Counsel had been sent to the Croydon County Court and were asked to wait until he arrived and was briefed. 9 We have to say we find Mr Edada's explanation difficult to accept. Our perusal of the evidence had revealed that this was a firm which was experienced in litigation and practised before Employment Tribunals. We had observed the date of hearing mentioned more than once in correspondence as well as in the notice of hearing from the Tribunal. 10 We therefore told the Respondents in accordance with Rule 13(3) of the first Schedule of the Employment Tribunal's Rules 1993, that on the face of it we considered their conduct towards this litigation to be frivolous and therefore would give them an opportunity through Counsel to show cause why an Order striking out the Notice of Appearance should not be made. 11 When Mr Clement [who appeared having been only very recently instructed as Counsel at the Tribunal proceedings} arrived and had taken instructions he told us that this was a genuine mistake within the firm. When asked to explain why Mr Atikpakpa, the second Respondent had not attended, he said he had only recently returned and was in the office. He therefore asked that the case be adjourned or that if it were to be started he would have to call eight witnesses and would see that statements were prepared overnight. The case would, however, not be completed now in the two days assigned to is (it was now beyond 3.30pm) and it might therefore be better to make a clean start at another time. 12 Whilst having great sympathy for Mr Clement's personal predicament we rejected this argument. It was clear to us that Mr Atikpakpa had done no preparation at all. The evidence of the Applicant revealed that instead he had expended his energies pursuing her by complaints to the Police and the Solicitors Complaints Authority which were patently ill founded and had then ignored these proceedings to the point of not attending at the Tribunal which was only a few miles from his office when he had received a telephone call. 13 Letter after letter had stated the date of hearing and letters from the Applicant and the Tribunal only a few weeks before and before he went to Nigeria must have reminded him how serious the matter was. 14 We considered an adjournment and an award of costs to the Applicant in respect of 17 August. However, as the Respondents were now telling us they would call eight witnesses, the case would have to be adjourned for a 3 or 4 day appointment which would not be available for another 6 months. That could not possibly be in the interests of justice. Having struggled for many years to become a solicitor the Applicant was out of work and a 6 month delay was extremely serious to her. The interests of justice demanded a prompt hearing. 15 We were therefore perfectly satisfied that the Respondent had treated these proceedings in a frivolous manner and acted vexatiously most certainly towards the Applicant. We had no doubt that our duty was to strike out the Notice of Appearance. 16 We therefore considered the Applicant's evidence in the form of the bundle containing a statement by her of her evidence; the witness statement of Cassandra Martinez-King, who also attended to give evidence should it have been necessary, her Contract of Employment and various items of correspondence."
[9]The Tribunal then recorded their findings of fact on the various complaints made by Ms Omerhi, found them all proved and decided that, on the unfair dismissal claim, there had been a fundamental breach of Ms Omerhi's contract of employment entitling her to resign. There was no potentially fair reason for that constructive dismissal and her dismissal had therefore been unfair. They also found that the allegations of breach of the firm's own equal opportunities code, terming sexual harassment to be gross misconduct, amounted to a breach of another fundamental term of her employment contract entitling her to resign. So the breach of contract claim was proved. She had further not been paid her entitlement under the national minimum wage legislation. Having accepted the Applicant's evidence and found the facts the Tribunal concluded that it was clear that Mr Atikpakpa had treated Ms Omerhi less favourably by reason of her sex, by reason of what the Tribunal in effect found to be sexual harassment, and therefore found for her under that heading also.[10]Those conclusions were reached on consideration of the written evidence and without hearing evidence or submissions from the firm or Mr Atikpakpa on the issues of liability, following their Notice of Appearance having been struck out. However, as the Tribunal recorded in paragraph 39 of their Extended Reasons:
"Remedy 39 Having found for the Applicant on the first day set aside for this hearing we adjourned until the second day to consider remedy and in our discretion allowed the Respondents to be heard on remedy. We heard evidence from the Applicant. The Respondents called Mr Atikpakpa, and Ida Usman."
Those oral representations were then supplemented at the Tribunal's invitation by subsequent written submissions all of which the Tribunal considered and took into account in making their subsequent awards of compensation for unfair dismissal, unlawful deduction of wages and sexual discrimination. The only aspect of those awards which needs separate consideration by us for the purposes of this appeal was the award they made on the ground of sex discrimination when they awarded a sum of £6,000 to Ms Omerhi for injured feelings arising from Mr Atikpakpa's sexual harassment of her. Again, it is convenient to record their stated reasons for that now, before turning to the submissions that Mr Clement made to us on them. They were as follows under the heading 'Sex Discrimination':
"45 Save only for injury to feelings, we regard the damages arising from the acts of sexual harassment as having been compensated for by our award for unfair dismissal. 46 In assessing a sum for injury to feelings, we took into account the following factors. The acts complained of took place over a relatively short period because the Appellant had the good sense not to go into Mr Atikpakpa's room after a time, there was relatively little touching and suggestive remarks. Therefore although all the sexual harassment is serious these acts come at the lower end of the scale. 47 What however makes this more serious is that Ms Omerhi depended entirely upon Mr Atikpakpa for her training contract and thus the possibility of qualification. She was therefore in a very vulnerable situation where she may have felt that she could not afford not to please him and she could certainly not have walked away from her job without disastrous consequences to her professional career. Furthermore, he was the senior partner in the firm and there was therefore nobody to whom she could turn for protection from him. 48 Ms Omerhi impressed as a capable and competent woman who was able to cope with the situation and to her credit took steps to prevent the harassment continuing and to obtaining exemption from her training contract. Nevertheless because of her capability she would have realised more than most the vulnerability of her position, and the risk she took in resigning from a firm which she could not thereafter have obtained a satisfactory reference. These are matters which cause significant injury to feelings. 49 Finally in assessing injury to feelings we have regard to the totality of the whole award in this case and its effect upon public opinion. The amount we have decided upon brings the total award to a figure of nearly two years net salary, after only one year of employment. That may seem high but having regard to the fact that Ms Omerhi is still out of work seven months after she resigned we considered it to be proportionate to the loss and injury she suffered. 50 We should add two things. Our award takes account of events only up to the end of her employment. We understand she has presented another application in respect of victimisation, covering the Respondents reporting of her to the Police and the Law Society. These are matters which post-dated the Originating Application and at the time were in English law not considered to be within the scope of Employment Tribunals. It therefore formed no part of our decision. 51 Finally, we record that the inaction of the Respondents in defending this case has not influenced the amount of our award against them. They paid the price for that in having their Notice of Appearance struck out and being debarred from defending, and should not be condemned to any additional penalty."
Those are the reasons for which the Tribunal made the award recorded at the start of their decision on page 9 of the bundle before us that the Respondent was ordered to pay the Applicant the sum of £6,000 for injury to feelings under the heading of 'Sex Discrimination'.[11]The second set of Tribunal proceedings were concerned only with the Applicant's complaint that she suffered victimisation unlawful under The Sex Discrimination Act 1975 by reason of the firm's and Mr Atikpakpa's conduct in making accusations to the Law Society and the Police which, in the words of the first Tribunal, were patently unfounded. These were found by the second Tribunal to have been causally connected to the fact that she had brought the first set of proceedings so that, as found by the second Tribunal, not only did the making of these false accusations amount to less favourable treatment of the Applicant but also it was causally connected with the protected act of her having brought the first set of proceedings, with the consequence that the firm and Mr Atikpakpa were guilty of victimisation contrary to the provisions of The Sex Discrimination Act . As the second Tribunal recorded, the remedy for victimisation under that legislation was available to Ms Omerhi, notwithstanding that her employment with the firm had come to an end, by reason of the overriding effect of European Law as explained in the case of Coote v Granada Hospitality Ltd ECJ [1998] IRLR 656 . That basis of the decision is not challenged before us on appeal, nor in our view could it be.[12]Mr Clement, who has appeared on the Preliminary Hearing before us, took a number of points by reference to his skeleton argument, helpfully refining the lengthy grounds of appeal set out in the Notice of Appeal dated 21 November 2000 in respect of the first proceedings and the undated notice set out at pages 36-39 of the combined appeal bundle before us in respect of the second set of proceedings. His first group of submissions related to the action taken by the first Tribunal in striking out the firm's and Mr Atikpakpa's Notice of Appearance with the consequence that they were not permitted to take part in the Tribunal proceedings on the issues of liability under Ms Omerhi's original complaint by the Originating Application of 8 March 2000. Mr Clement submitted that the Tribunal had erred in misdirecting themselves as to the powers they were exercising and in having imposed the sanction of striking out the Notice of Appearance with that consequence. In the first place he drew attention to the fact that the Tribunal earlier corresponded with the Appellants and the possibility of the Notice of Appearance being struck out under a different provision of the Tribunal Procedure Rules, Rule 4(7) had been notified to them. That is a provision entitling a Tribunal to strike out a Respondent's Notice of Appearance when the party has failed to comply with directions as to documents or particulars. Mr Clement submitted that because the expression used in Regulation 4(7) includes a direction by the Tribunal that a Respondent shall be "debarred from defending altogether" and the corresponding provision of Rule 13(2)-(3) under which the Tribunal eventually purported to act, on the different ground that the firm's attitude towards the proceedings had been frivolous and vexatious, does not contain those words, the Tribunal had got themselves confused and misdirected themselves as to which power they had and should have been exercising on 17 August when they purported to strike out the Notice of Appearance. His points on Rule 4(7) appear to us not to advance the possibility of an appeal materially, since it is quite plain from paragraph 10 of the Tribunal's Extended Reasons to which we have already referred that the provision under which the Tribunal were acting when they struck out the Respondent's Notice of Appearance was indeed Rule 13(2) and that the ground for doing this was that the conduct of the Respondents in the proceedings before them had been frivolous and vexatious in not taking any proper steps in the proceedings themselves at all but in spending their energies on pursuing unfounded allegations in other quarters as a way of heading off the proceedings. Mr Clement did not dispute that that power could properly be exercised in such circumstances and in our judgment he was right so to concede. It further appears to us that the Tribunal were properly directing themselves to that power, and not to the provisions of Rule 4(7) which, although it had been mentioned earlier, had been superseded by events as they appeared to the Tribunal when it came to the date of the hearing itself.[13]Mr Clement further submitted that the Tribunal had erred in striking out the Notice of Appearance under Regulation 13(2) and in applying that provision, so, as in effect, to prevent the Respondents challenging the case made out by the Applicant on the issues of liability at the hearing itself. Again he drew attention to the absence of the words "debarred from defending" the proceedings altogether in the provisions of Regulation 13(2)-(3), and to what the Tribunal said in paragraph 51, to which we have referred, which, he said, embodied a misdirection by the Tribunal to the effect that they were wrong in assuming that "debarred from defending" and striking out the Notice of Appearance were one and the same thing. Again, we have not been persuaded that that gives rise to an arguable ground of appeal, since under the power in Regulation 13(2)(e) which the Tribunal appear to us to have been exercising, it appears to us that that is a distinction without a difference: because the effect of striking out a Notice of Appearance under the power in Regulation 13(2) on the ground that the Respondent has behaved frivolously is necessarily to prevent the Respondent taking the normal part in the proceedings that it would otherwise be able to by way of defending the allegations made. As we have noted the Tribunal did in fact permit the Respondent, as a matter of discretion, to take part in the proceedings on the issues of remedy and that appears to us to have been an entirely proper exercise of the Tribunal's discretion as to how the proceedings should be conducted before it. We therefore do not think that that second point gives rise to any arguable error of law.[14]Thirdly, under this head, Mr Clement submitted that the Tribunal had erred in failing to give the notice that is required under Regulation 13(3) to show cause why an order striking out the proceedings or the Notice of Appearance should not be made. Again it appears to us that the Tribunal entirely properly applied the final phrase in Rule 13(3) empowering them to take immediate steps to strike out the proceedings without sending out a written notice to the party concerned:
"….if the party has been given an opportunity to show cause orally why the order should not be made."
As recorded in paragraph 10 and following of the Tribunal's Extended Reasons, that was exactly what this Tribunal did. It did allow an adjournment of a suitable length for Mr Clement himself to appear before the Tribunal and show cause orally why the striking out order should not be made. That appears to us to have been a proper way for the Tribunal to have proceeded in the unsatisfactory circumstances with which this Tribunal was faced when the case came on for hearing.[15]Finally, Mr Clement submitted, that it was wrong for the Tribunal to have taken the extreme step of striking out the Notice of Appearance and that they should instead have taken the course they did consider, as recorded in paragraph 14 of their Extended Reasons, of awarding an adjournment and making an award of costs against Mr Atikpakpa and the firm. Again it appears to us that for the reason explained by the Tribunal in that paragraph the course they took was a perfectly proper one and that there can be no arguable ground for saying that they erred in law in choosing the course of striking out the proceedings rather than allowing a further adjournment, in particular in view of the injustice they held that would cause to Ms Omerhi as the other party to the proceedings. We accordingly reject Mr Clement's submissions that the Tribunal erred in any way in the procedure that they adopted at the first hearing.[16]The second main ground he sought to put forward was that, having struck out the Respondent's Notice of Appearance, the Tribunal had committed an error of law in having proceeded to hear the case on the basis only of evidence from the Applicant in the form of the written witness statements and documents to which they referred in paragraph 16 of their Extended Reasons. In our judgment that too is unarguable. It is a matter for the Tribunal to determine the procedure at their own hearing and under Rule 9(1) of The Employment Tribunals Procedure Rules an Employment Tribunal is not bound by any enactment or rule of law relating to the admissibility of evidence in proceedings before the Courts of Law. It is a matter for the good sense and judgment of the Tribunal what material should be admitted before it as evidence and what weight should be placed on that material. It is not in our judgment arguable that in the circumstances that were before this Tribunal on 17 and 18 August it was an error of law, as Mr Clement submitted, for the Tribunal to have taken account of the written material without having required the witnesses, Dr Martinez-King and the Applicant herself, to appear and give sworn oral evidence confirming the contents of the witness statements or the truth of what was stated in the documents. That too we therefore reject as a potential ground of appeal.[17]Thirdly, Mr Clement made a group of submissions relating to the Tribunal's findings that Mr Atikpakpa's conduct had amounted to sexual harassment against Ms Omerhi at all. In paragraph 12 of his skeleton argument he invites us to take into account the recommendations of the European Commission in Directive 92/131/EEC attempting to define when sexual attention becomes sexual harassment. The point made is that, as referred to by the Commission there, this point is breached if:
"sexual attention is persisted in once it has been made clear that it is regarded by the recipient as offensive, although one incident of harassment may constitute sexual harassment if sufficiently serious."
Mr Clement submitted that the Tribunal had misdirected themselves by failing to apply a comparable test in assessing Mr Atikpakpa's conduct as they did in paragraph 20 of their Extended Reasons because, as he informed us and we have no reason to doubt, at the remedies hearing the Applicant had admitted in evidence that she had not herself directly complained to Mr Atikpakpa about his conduct at the time it was committed. It appears to us that that is not a ground that can give rise to an arguable contention on this appeal. The assessment of whether conduct in particular circumstances does or does not amount to unwanted sexual attention so as to constitute harassment contrary to The Sex Discrimination Act is a matter of fact and degree for the Tribunal to determine. This Tribunal appears to have properly directed itself to the conduct of Mr Atikpakpa and to have reached a conclusion that that did amount in the circumstances to sexual harassment, albeit as they described it "although serious, these acts come at the lower end of the scale" but those appear to us to have been conclusions eminently open to a reasonable Tribunal to arrive at on this evidence. We accordingly reject Mr Clement's submission under that head.[18]He further said that it was wrong for the Tribunal to have failed to identify and make a specific finding on the correct comparator in this context. That appears to us to be a unarguable submission and Mr Clement indeed admitted that it was not his strongest point. Acts of sexual harassment are by their nature related to gender, and constitute less favourable treatment of the party adversely affected without the need for the Tribunal to go through the motions of identifying specifically a hypothetical member of the opposite sex who would not, of course, have suffered such conduct.[19]Finally, under this head, Mr Clement submitted that the Tribunal had wrongly taken into account provisions of the firm's own equal opportunities statement as in some way affecting the issue of whether harassment had taken place in this case or not. We are bound to say that we do not read the Tribunal's reference to the firm's equal opportunities statement in paragraph 21 of their Extended Reasons as intended to go to that issue at all, but even if it did we are unable to see that there is any arguable error in that reference. Mr Clement helpfully drew our attention to the actual provisions of the firm's equal opportunities policy on sexual harassment which are in quite clear and correct terms giving examples of what sexual harassment may involve and, as Mr Clement admitted, in no way contrary to any formulation in the general law. So that group of submissions on the findings about sexual harassment also are rejected.[20]Finally, in relation to the first Tribunal's decision, Mr Clement submitted that the award of £6,000 for injury to feelings which was acknowledged by the Tribunal to be high was not supported by a sufficient statement of reasons for their having reached that conclusion, although Mr Clement acknowledged that it could not be said that an award of that amount in these particular circumstances was by itself perverse and unreasonable for a Tribunal to have made. The Tribunal's reasons for arriving at that figure, which, as they acknowledged, may seem high, were comprehensively and, in our judgment, justifiably stated in paragraph 45-51 of their Extended Reasons which we have already set out and we have not been satisfied that there is any arguable ground for saying that they misdirected themselves and were unjustified in reaching the conclusions they did in those paragraphs. Accordingly we reject that ground of appeal as well and therefore unanimously dismiss the appeal as regards the first Tribunal decision.[21]Mr Clement's points as regards the second Tribunal decision were, first, that the Tribunal had erred in failing to make more specific enquiries and findings about an issue which had been raised by the Appellants (the Respondents at the Tribunal proceedings) about the firm's practices in deleting computer files from their computer system. As reported in paragraph 10 of the second Tribunal's Extended Reasons on pages 41-42, the initial allegation made to the Law Society that had been made, following up the letter of 28 March which had specifically accused her of theft of documents, had referred to two things, the removal of boxes, that files were missing and that files had been "downloaded". It appeared that the real allegation being made against Ms Omerhi was simply that she had deleted the contents of computer files from her own folders on the firm's computer system by using her terminal, and the same thing had been found to have been done to folders of Dr Martinez-King who was the other person who had given evidence in written form to the Tribunal on Mr Omerhi's behalf. The criticism Mr Clement seeks to make against the Tribunal is that they had, as recorded in paragraph 13 of their Extended Reasons, decided it was not necessary for them to pursue more detailed enquires into that or to record specific findings on what the true practice within the firm had been. The reason the Tribunal took that view was apparent from paragraphs 14 and 18 of their Extended Reasons, namely, that the ground on which the Respondents to the proceedings had been found to treat Ms Omerhi less favourably, with the consequence that they were held liable for victimisation, was not anything to do with the detail of the firm's practices in its computer files but the fact that, as they recorded, an unequivocal report had been made to the Law Society accusing the Applicant in a way which did not reflect accurately the situation as the Respondents knew it at the time the report was being written. Taking that in conjunction with the reference to "downloading" in paragraph 10 it is easy to see why the Tribunal took the view that it was not necessary for them to go into the detail of what the Respondents' internal practices on their computer files were. The less favourable treatment consisted of making accusations to the Law Society of dishonesty which were, as recorded by the first Tribunal, "patently ill founded" and, as recorded by the second Tribunal, were not based on any proper investigation by the firm themselves. As the second Tribunal commented in paragraph 18, there had been a further letter written on 12 April to the Law Society, cast on the same basis of accusation against the Applicant, which on testing in evidence by the Tribunal had not been sustained. As the Tribunal said:
"The situation continued of an absolute lack of investigation, of lack of clarity as to whether or not there was any true problem with physical files and of what was at best a supposition regarding the computerised client information. This letter talked in terms of the Applicant's conduct not being "becoming of a solicitor" and generally expressed concern as to her professional competence."
And evidence to substantiate that, the Respondents wholly failed to provide. We conclude, taking that into account, that it is obvious why it is not arguable that the Tribunal fell into any error of law in concluding that no investigation into the details of the firm's computer practices was necessary. The basis of the finding of less favourable treatment was the making of unjustified accusations which in the main respects were untrue, and in any event were not based on any proper investigation by the firm at all.[22]Secondly, Mr Clement sought to suggest that the Tribunal had erred in failing to identify a proper comparator for the purposes of the victimisation claim. As put in his Notice of Appeal in relation to the second Tribunal's proceedings, the suggestion was that a different comparator should have been selected for the purposes of this claim, instead of the approach the Tribunal adopted of determining as they record in paragraph 28 of their Extended Reasons that the:
"…. Respondents did treat the Applicant less favourably than they would have treated another member of staff, either any at all or any of whom they might have suspected of misbehaviour."
It is suggested in the second Notice of Appeal that the comparator should have been an ex member of staff who had left the Respondent's employment in the manner in which the Applicant had done, alternatively, an ex member of staff who had left the Respondent's employment in the manner in which the Applicant had done and had made the "confessions" that the Applicant had made in her letter to the Respondents dated 29 March 2000. That latter reference was to her acknowledgement that she had deleted what she considered to be obsolete material off her own folder in the computer system, for reasons which she had explained. Again we have not been persuaded that this gives rise to any arguable ground of appeal. The Tribunal explained in paragraphs 27 and 28 the basis of comparison they were adopting in determining whether the actions by the two Respondents in making unfounded allegations following the presentation of Tribunal proceedings represented less favourable treatment of the Applicant, and it is in our judgment plain that the Tribunal as a reasonable Tribunal was fully entitled to conclude that that aspect of the case was made out on the basis of comparison that they adopted.[23]Finally, Mr Clement submitted that the Tribunal had erred in failing to explain on the next question they determined, which was the second question on victimisation, why the chronology of events to which they referred was an important matter and suggested that there was a lack of clarity in the Tribunal's stated reasons on that question. The question being of course whether there was a causal connection established between the protected act, the bringing of the first set of Tribunal proceedings and the unjustified campaign of accusations that followed. As the Tribunal recorded in paragraph 29 of their Extended Reasons:
"The Tribunal must then decide (S.4 of the Act) whether or not this less favourable treatment arose by reason that the Applicant had instituted proceedings (Case 2301236/00) under the Act. It is our conclusion that this was a material factor in the whole approach of the Respondents and to their readiness to cast the Applicant as the culprit without analysis or investigation. We base this not only on the chronology of events, but also the determination at the outset – which was continued for some weeks – to represent to her professional body that she was a thief or someone unbefitting to be a Solicitor. On this we note especially the First Respondent's letter of 12 April, and to the dialogue which continued with the Law Society/OSS, as well as with the Police, without any attempt to correct any wrong initial statements e.g. as to the files which admittedly had been taken out of the office building, but for an explained reason."
Taking those into account the Tribunal found the necessary causal link to establish victimisation had been present and accordingly held the complaint of victimisation justified and proved. The chronology referred to by the Tribunal which Mr Clement suggested had not been adequately explained in that passage was simply that the protected act, namely her letter of resignation and indication that she was going to take proceedings for sexual harassment, had been dated 7 March; her Originating Application had been lodged on 8 March; and Mr Clement pointed out that it was not until 28 March that the Respondents had made the accusations of theft against her and begun to attack her on that basis, found by the Tribunal later to be unjustified; and that was three days before 31 March when the Respondents lodged their answer/Notice of Appearance with the Tribunal. He submitted, as he had to the second Tribunal, that all was explained by the fact that it would have taken until the end of the month for the computer system to be looked at and for the fact of deletion of certain files in Ms Omerhi's folder to come to light. He was unable to explain to us how that could be said to link the accusations of theft of physical files on 3 March 2000, before the date of the protected act, with the search of the computer files. In our judgment the timing of the unjustified accusations within a few weeks of the protected act plainly entitles a Tribunal in those circumstances to take into account the sequence of events in determining whether the causal link is established on the balance of probabilities. No further explanation was required in the context of the facts before this Tribunal. The relevance of the chronology was in our judgment completely obvious.[24]In any event the Tribunal, as expressly recorded in paragraph 29 of their Statement of Reasons, based their conclusion not only on the chronology, of which no reasonable person could in our judgment have failed to understand the significance, but on other grounds which they found proved as a fact, that there had been a determination at the outset, continued for some weeks, to represent the Applicant to the Law Society and the Police as a thief without any justification at all. The Tribunal's conclusions on both of those grounds appear to us to be eminently justified and indeed no other conclusion readily suggests itself as proper for a reasonable Tribunal on the dismal state of affairs disclosed by the evidence in these two cases. For those reasons we reject the three grounds put before us by Mr Clement in relation to the second of the Tribunal decisions.[25]We would add that we have all reached the conclusion that on the basis of the facts found by these two Tribunals, which are not open to dispute before us, the conduct of this firm towards this young woman was not only unjustified but also outrageous and disreputable. We consider the conclusions drawn by these two Tribunals on the evidence before them were entirely proper, and we have no hesitation in dismissing both appeals against the two decisions.