MISS C J MARSHALL v ACTION AID [2001] UKEAT 1355_00_0607

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1355_00_0607Case No Appeal No. EAT/1355/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS C J MARSHALLAPPELLANTACTION AIDRESPONDENT
Before
Mr Justice Douglas BrownLord Davies of CoityDate 6 July 2001
[1]APPEARANCES For the Appellant MR T LINDEN (of Counsel) Pattinson & Brewer 71 Kingsway London WC2B 6T MR JUSTICE DOUGLAS BROWN Miss Caro Marshall is represented today by Mr Thomas Linden of Counsel who did not appear before the Employment Tribunal. We say at once that we are indebted to him for his clear and candid advocacy. Miss Marshall appeals from part of a unanimous decision of the Employment Tribunal at Bristol, the Chairman Mr M J R Griffiths, that the Respondents, Action Aid, were not in breach of her employment contract. There was a further finding that they did not discriminate against her on the grounds of her sex. That decision is not appealed.[2]The appeal is based on what are said to be errors in law of the Tribunal in two respects. Firstly, the Tribunal should have found that in breach of contract the Respondents failed to consider her written complaint by letter of 22 October 1999 pursuant to its harassment policy as being a letter initiating a complaint. Secondly, it is said that the Tribunal should have found that she was dismissed on the grounds of misconduct and in breach of contract she was deprived of the protection of the Respondents disciplinary procedure. The facts were mainly, if not entirely, not in dispute. We summarise them and we gratefully take the principle facts from the findings in the Extended Reasons. In paragraph 5, put in these terms:
"On 18 May the Applicant towards the end of her shift, [at the call centre operated in Bristol by the Respondents who raised money for charity] went to see the Operations manager Mr Richard Mason. The meeting lasted for between one and two hours. Its main purpose, so far as the Applicant was concerned, was to discuss her lack of promotion. Mr Mason's view was that her lateness and absence record was preventing her from being promoted at that time. The Applicant said that she did not feel that she was being appreciated and that other callers, less effective than her, were being paid more. The meeting included a discussion about her managers, particularly Mr Neil Fry. Mr Mason asked her what the problem with Neil Fry was and she reported to him that an unidentified person had heard Mr Fry at some unidentified time, making a sexist remark about her to some other unidentified person."
It is not necessary to refer to the details of that activity but it was unpleasant. After the meeting Mr Mason was concerned as to how he should treat the reported remark. While on the one hand it appeared to have been of little direct consequence in that the Applicant appeared to treat it more or less flippantly and specifically said that she did not wish to raise it as a complaint, on the other hand, if it had been said, it was, of itself, a serious matter which required to be properly investigated and dealt with. So Mr Mason took advice from the Respondent's Human Resources Department. He was advised (ill advised the Tribunal found) to refer the remark directly to Mr Fry.[3]That referral had the following consequences. In July Mr Fry made a formal complaint about the Appellant's reporting of this remark to the operations manager. In August Mr Fry's complaint was dismissed, which decision he appealed. That appeal was dismissed in September. On 24 September the Appellant was told that disciplinary procedures were being brought against her for her allegation about Mr Fry. That meeting was fixed for 26 October. The Appellant on 22 October wrote a letter to the head of Human Resources in these terms:
"In reference to the investigation, due to take place on Tuesday 26 October, I feel it would only seem proper conduct for my complaint to be heard, prior to this investigation. This I believe had it taken place at the Appeal Stage, would have provided an equal hearing for both parties involved in the investigation. Furthermore, my complaint against my fellow colleague due to his harassment and discrimination towards me, would have been brought to light sooner."
It is not necessary we think to set out the remainder of that letter but it is the letter that is put forward as being the written complaint within the Respondent's harassment procedures. What followed then was that the disciplinary panel interviewed her and Mr Fry on 28 October and both were told that no further steps would be taken.[4]The other meeting to which we refer, and we are indebted to Mr Linden for his researches in identifying the date of the meeting referred to in the Tribunal's reasons in paragraph 12, was on the 11 November - so after her letter, said to be a letter of complaint. The meeting took place as described in paragraph 12:
"…. significantly, the minutes of a meeting held with the Applicant, her union representative, her supporter and a member of the Respondent's Human Resources team. In that meeting she specifically confirmed that she had no wish to invoke any formal procedures."
Mr Linden's skeleton argument, which he drew to our attention today on this, complained that the Tribunal were wrong in their approach to the letter. What the Tribunal said was:
"…that letter did not amount to a formal complaint under the terms of the Respondent's harassment policy and even if it had, it lacked sufficient particularity to enable the Respondent reasonably to investigate it."
The undoubted fact is that the Appellant throughout the summer and into the autumn persistently refused to disclose the identity of her informant. Our view is that the conclusion the Tribunal came to on the wording of the letter, and bearing in mind that refusal, is one that has no arguable chance of success before the full Appeal Tribunal. Our view that that ground has no merit whatever is reinforced by the evidence of what transpired on 11 November. It is quite clear that although the Employment Tribunal do not in their reasons refer to the date they took that meeting and the attitude of the Appellant into account when they came to the conclusion that this letter could not be regarded as a letter of complaint within the procedures of the Respondents. That is sufficient to dispose of that ground. We would say in passing that each member of the Tribunal today has had some difficulty understanding how a complaint of harassment could successfully have been raised on the facts which the Appellant sought to rely upon. She was not present when these remarks were made so there was no harassment. The question arises, who was harassing her? Was it Mr Fry, if he said these remarks, and he wholly denied that he had? Or was it the informant who passed the news onto her. Mr Linden was unable to answer that. Posing the matter in that way we think illustrates the impossibility of harassment arising in this way. We observe that the harassment procedures which appear to be directed in any event to managerial staff and not to employees themselves list comprehensive examples of harassment all of which are direct face-to-face harassment between the harasser and the employee. Be that as it may there was a dispute unresolved by the Employment Tribunal as to whether that was in fact a term of a contract. Assuming that it was a term of contract for the purposes of this appeal there was no breach established.[5]So far as the second ground is concerned again Mr Linden very properly drew our attention to clause 1.6 of the Respondent's Grievance and Disciplinary Procedure. This raises the question as to whether there was a contractual term that the disciplinary procedure provided contractual rights. The Employment Tribunal do not in fact specifically refer to this and they certainly did not refer to paragraph 1.6 but in the introduction to the Grievance and Disciplinary Procedure 1.6 provides:
"For the avoidance of doubt, this procedure does not form part of the contract of employment."
We think that it might have been possible for the Appellant to raise an arguable case before the Full Appeal Tribunal that her dismissal did amount to misconduct within the meaning of the disciplinary procedure. Paragraph 3.1 of which provides:
"Misconduct is a breach of an obligation to do, or not to do something eg persistent lateness, failure to work efficiently or according to an instruction or failure to work within ActionAid's Policies and procedures."
Even if that was a sustainable argument it is difficult to see how this Appeal Tribunal, having had 1.6 drawn to its attention, could do anything other than decide that there was no contractual term imported into the contract. The question of an implied term was not, so far as we can see, canvassed before the Employment Tribunal. It forms no part of its reasons. It forms no part of the Notice of Appeal or indeed Mr Linden's skeleton argument and he has not intimated to us an intention to seek to amend the Notice of Appeal. In all the circumstances we have come to the conclusion that the decision of the Employment Tribunal on the second point cannot be disturbed and this appeal must be dismissed at this stage.