MS V L ROBSON v 1) ELECTRIC INCENTIVE CO 2) MR JOBSZ [2001] UKEAT 1384_00_2203

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 1384_00_2203

Case No Appeal No. EAT/1384/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MS V L ROBSONAPPELLANT

1) ELECTRIC INCENTIVE CO 2) MR JOBSZRESPONDENT

Before

Mr Recorder Langstaff

Date 22 March 2001

[1]APPEARANCES For the Appellant MR P LAPPIN Representative Harlow Welfare Rights & Advice Service 2 East Gate The High Harlow Essex CM20 1ND MR RECORDER LANGSTAFF QC This matter comes before us by way of a Preliminary Hearing from the Employment Tribunal sitting at Stratford whose reasons were promulgated on 25 September 2000. By that decision the Employment Tribunal dismissed a complaint made to them by the Appellant in respect of sex discrimination against her but upheld a complaint that she had been unfairly dismissed by the Respondent.

[2]Much depends upon the facts found by the Tribunal. They concluded that the Appellant had been employed as a sales and marketing executive by the Respondent. The Respondent was a partnership in respect in which the second Respondent was a partner. Accordingly, he was her employer. They found that the Appellant had a sexual relationship with the second Respondent whom I shall call Mr Jobsz, which lasted for some 18 months.

[3]In a carefully reasoned decision, the Tribunal set out the details of that relationship. The notice of appeal focuses upon a particular incident, which occurred on 26 June 1999. As to that the Tribunal said:

"Mr Jobsz's conduct on the night of 26 June - the assault and criminal damage - clearly was unwanted conduct but the Tribunal did not accept that this had any connection with the workplace. It did not occur in the course of Mr Jobsz's employment. It occurred at the Applicant's flat, following a private party at Mr Jobsz's home. It was a row between two people who were having a sexual relationship. The fact that they were also in the relationship of employer and employee in their working lives was not sufficient to bring this episode within the scope of Part II of the Sex Discrimination Act 1975 which was designed to provide a remedy for unlawful discriminatory conduct at work and not to police private sexual relationships."

It is relevant that in the paragraph immediately preceding the Tribunal had said:

"The Tribunal did not accept that in this case Mr Jobsz was making unwanted sexual advances to the Applicant. On the contrary, this was a consensual relationship between adults. Therefore there was no sexual harassment. Nor was she treated less favourably on the grounds of her sex."

Those comments in paragraph 10 are general in their application to the facts, which the Tribunal had recited including a description of what had happened in the incident of 26 June. Accordingly, we think that the proper way to regard that which the Employment Tribunal was saying was that they did not think that any of the actions constituted less favourable treatment on the grounds of sex.

[4]However, it is possible though we think unlikely that one might read paragraph 11 as dealing with conduct other than that comprised in paragraph 10. The question raised therefore by Mr Lappin was whether or not a violent incident in the course of an ongoing sexual relationship is so far at least as the victim of the incident is concerned less favourable treatment on the grounds of sex. Such an incident would not happen if there were no relationship. Such a relation would not happen if the parties to it were not man and woman. Comparison must be made with a man because the statutory question invites the observation that a man must be treated more favourably: the answer to that that Mr Lappin would give, would be that a man would of course not be involved in such a sexual relationship.

[5]He also draws attention to the second ground upon which the Tribunal reject the claim in respect of the night of 26 June. That is, that the incident did not occur in the course of Mr Jobsz's employment. It was a private row outside work. He says:

"A finding to that effect is inconsistent with the finding that the Tribunal made in respect of unfair dismissal that the criminal acts which Mr Jobsz was later to confess to amounted to a breach of the implied term of trust and confidence noting the serious misconduct such as criminal acts committed by an employer toward an employee will have the effect to destroying the employment relationship even though they did not take place at work."

[6]We do not think that there is any arguable point of law in that which Mr Lappin submits. We think the Employment Tribunal were absolutely right in suggesting so far as the first ground is concerned that this was a row between two people who were having a sexual relationship. The Sex Discrimination Act 1975 defines discrimination in Section 1 as occurring if, on the ground of her sex a man treats a woman less favourably that he treats or would treat a man. The fact that one mistreats the other party to a sexual relationship does not seem to us necessarily to mean that the treatment is on the ground of sex.

[7]We are happy to draw that conclusion because it occurs to us that if a man and a woman were married and at work and had a row which would not have occurred if they had not been married, then on the basis of Mr Lappin's argument one would have to accept that the victim of the row had suffered less favourable treatment on the ground of her or for that matter his sex, and we think that save in exceptional circumstances a Court should rightly be hesitant to draw that conclusion. The conclusion is essentially one of causation. Causation is a question of fact. Questions of fact are for the Tribunal. We cannot see that they failed to apply any proper test or ought to take any other approach.

[8]As to the second ground which was the absence of connection with the work place: Section 6 of the Sex Discrimination Act is the section under which this claim is brought. It is a section, indeed the first section, in Part II of the Act which is headed 'Discrimination in the Employment Field'. There is a sub heading 'Discrimination by Employers'. Section 6(2) provides that it is unlawful for a person in the case of a women employed by him at an establishment in Great Britain to discriminate against her. Section 6(2)(a) deals with circumstances which are entirely employment related, (b) discrimination by dismissing her or subjecting her to any other detriment.

[9]We read "other detriment" as being other detriment within the employment context. We think that it is not arguable, that it is capable of covering acts outside the employment context. The mere fact that one person whilst at work stands in the relationship of employer to another who is employee does not, we think, on its own make any act committed by the one against the other fall within the scope of Section 6(2)(b). If it were otherwise, the Sex Discrimination Act 1975 would indeed police private sexual relationships, as for instance in the case of hypothetical married man and woman working in the same workplace to which we have drawn attention. It follows that we think that the issues raised by Mr Lappin are essentially ones of fact causation and connection with the workplace which, being matters of fact, fell within the scope of the Employment Tribunal to decide. We cannot see any sustainable argument that they were perverse in deciding as they did and accordingly we dismiss this Appeal. We should add for the sake of completeness that permission to appeal is refused.