GREATER MANCHESTER PASSENGER TRANSPORT EXECUTIVE v MRS S SANDS [2001] UKEAT 538_00_1101

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 538_00_1101Case No Appeal No. EAT/538/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
GREATER MANCHESTER PASSENGER TRANSPORT EXECUTIVEAPPELLANTMRS S SANDSRESPONDENT
Before
Mr Justice Charles Mr R SandersonDate 11 January 2001
[1]APPEARANCES For the Appellant MR S GORTON (of Counsel) Instructed By: Messrs Pannone and Partners Solicitors 123 Deansgate Manchester M3 2BU For the Respondent MR T LINDEN (of Counsel) Instructed By: Messrs Pattinson & Brewer Solicitors DX 394 LONDON MR JUSTICE CHARLES : This is an appeal against parts of a decision of an Employment Tribunal sitting in Manchester on 15 and 17 November 1999. The Extended Reasons for the decision were sent to the parties on 24 January 2000.[2]The parties to the appeal are the employer, the Greater Manchester Passenger Transport Executive, who is the Appellant before us and was the Respondent before the Employment Tribunal and an employee of that body, Mrs Sands, the Applicant before the Employment Tribunal and the Respondent before us.[3]The decision of the Employment Tribunal was that:
"(a) the applicant was not unlawfully discriminated against on the grounds of sex contrary to section 6(2)(b) of the Sex Discrimination Act 1975 (the 1975 Act) read with section 1(1)(a) of that Act and that part of her claim is dismissed; but (b) the applicant was unlawfully victimised contrary to section 6(2)(a) and 6(2)(b) of the 1975 Act read with section 4(1) in that having done a protected act, she was treated less favourably in the way access was afforded to her in the investigation and adjudication of her complaint and was subjected to a detriment in the treatment of the applicant following her complaint."
[4]The appeal is against the decision in paragraph (b) which, as appears above, is a decision that the Applicant's claim for discrimination by way of victimisation, pursuant to section 4 Sex Discrimination Act 1975 (the SDA) succeeded. The bases for that finding are set out in greater detail in paragraph 24 of the Extended Reasons. The appeal relates to each of them.[5]This appeal proceeded to a full hearing pursuant to our "Fast Track Procedure" and accordingly there was no preliminary hearing. On 3 October 2000 the Appellant sent to this Tribunal an amended Notice of Appeal. Unsurprisingly, the Registrar informed the Appellant that it must make its application to amend to us. It may be that if there had been a preliminary hearing the application to amend would have been made then.[6]At the beginning of the hearing before us we indicated that we would hear all arguments that the Appellant wished to advance and would deal with the application to amend, having regard to those arguments and the arguments advanced by the Respondent.[7]In the event, in our judgment correctly, Counsel for the Respondent did not oppose the application to amend, having regard to the manner in which the Appellant's arguments were advanced. The Appellant did not advance the amendment contained in paragraph 11(b) of the amended Notice of Appeal.[8]In those circumstances we refuse the leave sought to amend paragraph 11 of the Notice of Appeal but grant the leave sought to amend paragraph 12 and to add paragraph 13. Some background[9]In her Originating Application the Applicant claimed sex discrimination against her employer (the Appellant) and in box 9 stated that the matter she was complaining about took place on 28 July 1999. In our judgment it was correctly accepted on behalf of the Appellant that the Applicant's complaint did not relate solely to the events on that date but related to the way in which her grievance made, or crystallised, in a formal complaint received by the employer (the Appellant) on 13 January 1999 was dealt with. That letter was addressed to the Human Resources Manager, Mr Barlow and was entitled "Formal Complaint". It contained the following:
"… I believe that for over three years I have been Sexually Harassed and Bullied by my Area Controller [Mr R], whilst carrying out my duties as a Bus Station Supervision. For example: (1) I feel as though I am constantly being watched. (2) I am shouted at in front of other members of staff. (3) I have been humiliated and degraded in front of other members of staff. (4) I have been constantly criticised and [Mr R] interferes in my work. There have been several incidents which I feel are worthy of immediate investigation."
Later the Applicant provided further details of her complaints.[10]In paragraph 11 of her IT1 further grounds of complaint were identified, namely discriminatory misconduct by Mr R on the grounds of the Applicant's sex being:(1) bullying and intimidation;(2) attempts by Mr R to discipline the Applicant; and(3) a clash or exchange leading to a threat of disciplinary action against the Applicant.[11]In paragraph 2 of the Extended Reasons the Employment Tribunal say this:
"2 From the outset it was made clear to the Tribunal that this complaint did not involve the truth of allegations against a manager, Mr R. The Tribunal has listened to the allegations made by the applicant against Mr R, but wishes to state at the outset of its decision that it has made no findings in respect of the truth of those allegations and has gone into little or no detail of the substance of those allegations. It is extremely conscious that it has not heard from Mr R, himself, and therefore any reference to these complaints is not in any way a finding as to the substance of those complaints."
[12]In those circumstances it is in our judgment unsurprising that Mr R gave no evidence before the Employment Tribunal and it is to our minds surprising that in paragraph 20 of the Extended Reasons the Tribunal said that:
"There was no evidence of any weight before the Tribunal that there has been previous complaints by women against Mr R."
The Extended Reasons[13]In paragraph 3 the Employment Tribunal identify the witnesses. In paragraphs 4 and 5 they make findings in respect of events in 1996, 1997 and 1998.[14]In paragraph 6 the Employment Tribunal set out the background to the formal complaint received by the Appellant on 13 January 1999. In that paragraph they refer to an earlier complaint dated 22 November 1998 but point out that it gave no details of that complaint. The Employment Tribunal also refer to a meeting which took place on 10 November 1998, at which notes were taken, but there is no finding as to what the content of those notes was and thus as to the nature or details of the problems which the Applicant then alleged she was having, or had had, with Mr R.[15]In the last sentence of paragraph 6 through to paragraph 15 the Employment Tribunal make their findings of fact in the following terms:
"6 … He concluded his letter by suggesting a temporary relocation of the applicant's place of work whilst the investigation was being undertaken and if she believed this to be appropriate, he suggested that the applicant contact him directly and he would seek to make the appropriate arrangements. 7 The applicant replied on 1 February 1999 declining the offer of temporary relocation. She then enclosed more details of her complaints. In particular, she gave five witnesses whom she believed had witnessed Mr R's behaviour towards her. She also gave examples of her allegations of Mr R's treatment of her and how she believed he constantly criticised and undermined her. Later she provided further details of her complaint which were before the Tribunal at page 49. 8. The day following Mr Barlow's request for more detailed account of what had happened, the applicant was instructed by Mr R to ring a Ms Mellor in human resources to arrange a meeting. The applicant did so and Ms Mellor told her that it was to be an informal meeting between Mr R and herself because Mr R and she were having communication problems. The meeting was arranged for 22 January 1999 and took place in Mr R's office with Mr R, Ms Mellor and the applicant's shop steward Mrs Wroe and herself. Afterwards that alleged 'informal meeting' was called a disciplinary meeting by Mr R who informed the applicant that she had just been given an official verbal warning. Ms Mellor made no objection to this so the applicant left the meeting with Mrs Wroe. Mrs Wroe confirmed that this had taken place and that she had gone to the meeting to support the applicant because the applicant was afraid of going into the meeting alone. The Tribunal is satisfied that Mrs Wroe did not attend in her capacity as a TGWU shop steward, but as the applicant's friend and that at the end of the meeting Mr R informed the applicant that he had no alternative but to issue a verbal warning. The Tribunal is satisfied that the applicant did not have notice that this was to be a disciplinary meeting and in any event the meeting was in breach of agreed rules, since a shop steward can only be disciplined in the presence of a full-time officer. At the intervention of the branch secretary, that verbal warning was removed from the applicant's record. It was the first disciplinary sanction accorded to the applicant since the beginning of her employment with the respondent. At the time this meeting took place Mr R was aware informally that the applicant had made a complaint about him. 9 On 10 February 1999 the branch Secretary, Mr Connell, and the applicant were invited to see Mr Barlow regarding the applicant's complaint. Again Mr Barlow asked if the applicant wished to transfer to another bus station whilst the grievance was ongoing and the applicant refused because she feared that if she moved, she would not be able to return to Leigh Bus Station. She gave Mr Barlow a letter containing the names of witnesses, including a Mr Robinson and Mr Tooley. The Tribunal notes that it was not until 23 March 1999 that Mr Barlow contacted Mr Tooley about the allegations which the applicant had made and not until 29 April 1999 did he contact Mr Robinson. He took no formal statement from either, but both corroborated part of the allegations that the applicant had made against Mr R. Mr Barlow explained that the delay in contacting the witnesses was due to the fact that at the time he was involved in the annual pay round talks which commenced on 23 February 1999 and at the same time, as a result of the loss of the corporate planning manager in late 1998, he was required to put together the business plans and main goals for the business in connection with the Investors In People accreditation. He was also involved in overseeing the creation of a video to be used as part of an induction presentation. On 1 March he was involved in interviewing a series of candidates for the role of human resources assistant and throughout the course of March there were a series of presentation to the respondent's staff on Investors In People, such presentations taking place not only in the Portland Street, Manchester office of the respondent, but elsewhere. These presentations ran on until 22 March. He said that about that time he tried to establish the availability of Mr Tooley and Mr Robinson and because the applicant had by that time moved from Leigh Bus Station, it was a question of prioritising his tasks and he felt that the team briefings with staff in preparation for the Investors In People programme, together with the two days' filming of the induction video and preparatory work for it, were of a higher priority. In addition, this was followed by the Easter weekend and further team briefings in connection with the Investors In People programme. Finally, he was involved in joint national council meetings with the trade unions on 21 and 22 April so that effectively for the entire week commencing 19 April he was not available. 10. On 16 February 1999 an incident took place between the applicant and Mr R and the applicant informed her branch secretary, Mr Connell, of that incident. The following day he went to speak to Mr Stephens and Mr Barlow and Mr Stephens told Mr Connell that as a result of the incident Mr R wished to discipline the applicant. Mr Connell arranged for the applicant to meet Mr Stephens, Mr Barlow and himself on Friday, 19 February 1999, and at that meeting the applicant agreed to move to Bury with effect from the following Monday. All parties agreed that the applicant was being moved to avoid any further incidents with Mr R and both Mr Barlow and Mr Stephens gave a commitment that the grievance process would be finished within a month. However, by the time of the presentation of her originating application in July 1999 the applicant still had not been moved from Bury Bus Station, to which she had been located temporarily in February 1999. The Tribunal also finds that the applicant had tried to persuade the respondent to move Mr R and not herself and that she was unsuccessful in this, because the respondent was of the view that it was more difficult to move an area controller than it was to move a bus station supervisor. 11 At the beginning of March 1999 the applicant became aware that video tapes of the Bury Bus Station were being taken away by Ashton' s area controller. Both video tapes were days on which the applicant was on duty and she became suspicious as to why an area controller from Ashton would want to borrow video tapes from Bury Bus Station. The applicant contacted the supervisor at Ashton Bus Station to enquire what was wrong with the video player and was informed that there was nothing wrong with their video players. The Ashton area controller arranged for the mobile supervisor to pick up the video tapes later that evening from Bury Bus Station and the applicant believed that the tapes had been taken so that management could try to find something detrimental to the applicant. She informed her branch Secretary, Mr Connell, who wrote to Mr Stephens on 8 March. Mr Connell was of the view that a concerted attempt was being made to justify Mr R's behaviour and no attempt was being made to investigate the applicant's grievance properly. He referred the matter to Mr Renshaw and Mr Renshaw requested that Mr Barlow progress the grievance as quickly as possible. For the following two months Mr Connell constantly asked Mr Barlow about the progress of the applicant's grievance and indeed Mr Stephens asked Mr Connell if he knew where the process was up to. Finally, the applicant instructed the union's Women's Officer, Mrs Mayor, to act on her behalf and Mrs Mayor wrote to Mr Barlow on 21 March 1999 informing him that the applicant has asked her to represent her in pursuance of her complaint against Mr R. Mrs Mayor asked Mr Barlow to contact her regarding the dates of any meetings she might wish the applicant to attend, but by 25 May, 1999 Mrs Mayor still had not received a response from Mr Barlow. In the meantime, the applicant regularly telephoned Mr Barlow's office, but without success. The Tribunal is satisfied that Mrs Mayor also tried to contact Mr Barlow by telephone and left messages with his office, none of which were replied to. Mr Barlow's explanation for this was that he took Mrs Mayor's letter of early April as simply a letter of introduction; he maintained that he received only one telephone message from Mrs Mayor in late April/early May and when he received Mrs Mayor's letter of 25 May, 1999, he contacted the applicant to say that there had been some uncertainty about the proper procedure to apply, but that the grievance procedure would be the procedure to be used. 12 However, as soon as Mr Barlow had spoken to Mr Tooley and Mr Robinson and found that part of the applicant's allegations had been corroborated, he immediately informed Mr R formally of those allegations on 30 April by providing Mr R with a copy of the applicant's letter, but with the names of the witnesses blanked out to protect their identity. Mr R had heard on the grapevine that a complaint had been made about him by the applicant. 13 At this time the respondent's harassment procedure had been drafted, but had not been formally agreed by all the trade unions involved. The grievance procedure, however, was in force. 14 On 2 June 1999 the applicant went to see her doctor who suggested counselling. She spoke to her area controller and explained to him how ill she felt and he advised her to speak to Ms Mellor. On 3 June 1999 Ms Mellor telephoned the applicant to say that she had had a word with Mr Barlow and he would speak to her some time that day. He did not, but the applicant contacted Caroline Mellor to inform her that Mr Barlow had not rung. Ms Mellor said that she would get Mr Barlow to ring the applicant on Monday, but again on Monday, 7 June 1999, Mr Barlow did not telephone her. As a result, the applicant contacted Mr Tristram, who asked her to leave the matter with him. Two minutes later Mr Barlow telephoned her. He told the applicant that he was looking at 27 July as the date to hear her grievance and she replied that she would need to check with Mrs Mayor. She said that she would ring Mr Barlow back. She rang Mrs Mayor, who told the applicant that she was in London on an important meeting on that date and Mrs Mayor gave the applicant several alternative dates when she would be available. The applicant then rang Mr Barlow back and told him. He promised to ring back, but did not do so for several days when he informed the applicant that the only day the meeting could be held on was 27 July 1999, as Mr R's union representative, Mr Saunders, was only available on that day. After discussing the matter with Mrs Mayor, Mrs Mayor rearranged her London meeting, because she felt it was important that the applicant's case be heard as soon as possible and the applicant then informed Mr Barlow of this and it was agreed that the meeting would take place at 10.00 am on 27 July 1999. This was confirmed in a letter to the applicant on 24 June 1999. No direct contact took place between Mr Barlow and Mrs Mayor, the applicant's representative. Mr Barlow's explanation of this was that in the past he had got his fingers burned when a grievance had been raised by another employee and he had in establishing the arrangements for a hearing involved that person's trade union representative when the employee did not wish to have the trade union involved. On 20 July 1999, however, the applicant received a further letter informing her that the date was now 28 July at 10.00 am. The reason for this was that Mr R's representative, Mr Saunders, was unavailable on 27 July. As a result of this change, Mrs Mayor had again to rearrange her diary so that she could attend. At no time did Mr Barlow copy Mrs Mayor any of the correspondence relating to these meetings. The applicant believed that normal practice was to copy documents to a full-time officer if the full-time officer was involved. 15. The applicant met with Mr Connell, her branch Secretary and Mrs Mayor, at 8.00 am on 28 July to go through her case. At that meeting she showed Mrs Mayor and Mr Connell the letters she had received from Mr Barlow regarding the meeting. In particular, the applicant was concerned at Mr Barlow's letter of 19 July 1999 that Mr R and his representative would be present. The applicant was not prepared to sit around the table with Mr R and so in her presence Mrs Mayor telephoned Mr Stephens, who was also to be present, to seek clarification regarding Mr R's attendance and involvement at the hearing. Mr Stephens explained to Mrs Mayor that she needed to speak to Mr Barlow that he had had no involvement in setting up the meeting and so Mrs Mayor rang Mr Barlow's office and was informed that he had not yet arrived. He rang her immediately he arrived and Mrs Mayor asked Mr Barlow why Mr R would be in attendance. She said that she had understood that the purpose of the meeting was to hear the applicant's formal grievance in full, free from intimidation and fear, given the nature of the applicant's complaint. Mrs Mayor informed Mr Barlow that unless he could assure her that Mr R and his union representative would not be present, she would not be attending the meeting. Mr Barlow then assured her that Mr R and his representative would not be present during the grievance hearing, but when Mrs Mayor and the applicant arrived at head office, Mr Barlow came to reception and told both women that Mr R was insisting that he should be present at the applicant's grievance hearing. He then introduced Mrs Mayor and himself to Mr Saunders, Mr R's union representative from UNISON. Mr Saunders then went to meet Mr R and Mr Barlow took Mrs Mayor and Mr Connell into an office and asked if she would meet with himself and Mr Saunders. The applicant had given Mrs Mayor strict instructions that under no circumstances would she have Mr R or his union representative present while she presented her grievance. Mrs Mayor went into another office with Mr Barlow and returned approximately ten minutes later and informed Mr Connell and the applicant that both Mr Barlow and Mr Saunders were insisting that Mr Saunders be present. She also informed the applicant that she had informed both men that the meeting was not taking place under those circumstances. Mrs Mayor was acting under the instructions of her member and she and the applicant, together with Mr Connell, then left the building. The applicant submitted her claim to the Employment Tribunal on 29 July 1999."
[16]In paragraph 17, after referring to the relevant sections of the SDA, the Employment Tribunal set out the law in the following terms:
"17. In a case alleging unlawful discrimination on ground of sex the burden of proof is on the applicant to prove her case on the balance of probabilities. Direct evidence of discrimination if now rarely available and the outcome will depend on the inferences drawn from the facts found. The Court of Appeal has given guidance to Employment Tribunals in the case of King v Great Britain-China Centre [1991] IRLR 513 in deciding whether there has been unlawful discrimination. The Tribunal must firstly make findings of the primary facts and if on the facts found there is a difference in treatment and of sex, the Tribunal is then entitled to look to the respondents for an explanation. If no explanation is given or the explanation is inadequate or unsatisfactory, then the Tribunal may, but need not, infer discrimination on ground of sex, taking into account all of the evidence, including, if appropriate, an unsatisfactory or equivocal answer to a questionnaire served under section 74 of the 1975 Act. In deciding whether the less available treatment was on the ground of sex, the Tribunal must be satisfied that but for the applicant's sex, she would not have been treated the way she was (James v Eastleigh Borough Council [1990] IRLR 288 HL) but sex need not be the only cause, provided it was an operative factor (O'Neill v Governors of St Thomas More RC Upper School [1996] IRLR 372 ). Where a claim of unlawful victimisation is made, the applicant must show that she was treated less favourably than other people would have been treated in the same circumstances and that the reason for the less favourable treatment was that the applicant sought to rely on the act or promote its operation ( Cornelius v University College of Swansea [1987] IRLR 141 CA). The applicant, in order to establish discrimination by victimisation must show that the respondent in any circumstances relevant for the purposes of any provision of the 1975 Act treated her less favourably than in those circumstances they treated or would have treated other persons, but the relevant circumstances do not include the fact that the complainant has done a protected act. The treatment applied by the alleged discriminator to the complainant has to be compared with the treatment which is applied or would have been applied to persons who had not done the relevant protected act. If the doing of the protected act itself constituted part of the relevant circumstances, a complainant would necessarily fail to establish discrimination because the alleged discriminator could show that he treated or would treat all persons who did the like protected act with equal intolerance Aziz v Trinitv Street Taxis [1988] IRLR 204 CA). It should also be noted that section 4 of the 1975 Act refers not only to acts done, but also by reason that the discriminator knows the person victimised intends to do any of those things, or suspects [the Tribunal's emphasis] the person victimised has done or intends to do any of them."
[17]In paragraphs 18 and 19 the Employment Tribunal summarise the submissions made by the parties. We do not set out those paragraphs in this judgment. We however, note that in the summary of the submissions made on behalf of the Applicant no mention is made of the video tapes referred to at the beginning of paragraph 11 of the Extended Reasons. The conclusions of the Employment Tribunal are contained in paragraphs 20 to 24 of the Extended Reasons, which are in the following terms:
"20. The Tribunal finds that the applicant was not unlawfully discriminated against on grounds of sex. There was no evidence of any weight before the Tribunal that there had been previous complaints by women against Mr R. The applicant herself did not complain of anything which might be interpreted as sex discrimination until November 1999. While the Tribunal accepts that both Mr Brannan and Mr Connell raised the relationship between the applicant and Mr R with management on a number of occasions, it accepts that it was reasonable until November 1999 for the respondent's managers to take the view that it was a clash of personalities. However, once the applicant had made her complaint formal in late 1999 there was then the question of how the respondent dealt with it and the Tribunal finds that there was less favourable treatment in the manner in which the respondent dealt with the applicant's complaint."
We comment that the references in this paragraph to 1999 should be references to 1998; this is clear from the findings of fact made by the Employment Tribunal. "21 Firstly, there was serious delay in dealing with the applicant's complaint. Mr Barlow has said that this was because he was involved in particular in the preparation for Investors In People. However, with respect to Mr Barlow, Investors In People is about individual members of staff and its concepts do not appear to have been carried down to the level of an individual supervisor at the Leigh Bus Station. Moreover, the Tribunal is surprised at the lack of initiative to sort out just how this complaint should be dealt with. Mr Gorton has said that it was new territory. However, Mr Barlow is an experienced human resources manager and knew full well that this was territory which if established could lead to his employer paying serious compensation to the applicant. In those circumstances it was necessary for him to agree with the applicant the procedure which should be followed. Instead he delayed and allowed himself to be distracted by other matters, which in the opinion of the Tribunal were of lesser priority, such as the making of a video and the preparation of a submission for Investors In People. Even if he felt that it was essential that he supervised the Investors In People presentation and preparation, he could still have delegated the job of interviewing the applicant's witnesses to someone else and then when it appeared that at least two of them were corroborating what the applicant had said, he would then have been aware that the complaint must be given priority. Instead he delayed until the end of March in the case of Mr Tooley and the end of April in the case of Mr Robinson. The Tribunal did not accept his explanation of why Mr Robinson took until the end of April to interview. In fact, the Tribunal found the explanation for the delay unacceptable, particularly when Mr Barlow was aware that the applicant had transferred to Bury Bus Station very reluctantly. The Tribunal is also concerned that disciplinary action was taken against the applicant and that Mr R knew of the applicant's complaint when he proposed to take disciplinary action against her. It smacked of self-protection. The respondent knew that the applicant was not merely claiming a clash of personalities, but was alleging unlawful sex discrimination. The Tribunal is also unhappy with Mr Gorton's submission that there was no obligation on Mr Barlow to interview all five witnesses. It was said that the applicant believed that Mr Tooley and Mr Robinson would be more helpful and indeed Mr Robinson had put a report in writing of the incident in 1996. However, once Mr Robinson and Mr Tooley corroborated to some extent what the applicant was saying, in the Tribunal's view Mr Barlow should then have carried out a full investigation into what the applicant and all five witnesses had to say. This was only fair to both the applicant and Mr R. 22 The Tribunal is also unhappy at his treatment of Mrs Mayor. She had notified Mr Barlow in April that the applicant had asked her to represent her. Mr Barlow's explanation was again unacceptable to the Tribunal. He may well have had difficulties on a previous occasion; these could easily have been dealt with on this occasion by writing to the applicant and asking her to confirm that Mrs Mayor was representing her. Instead the Tribunal is satisfied that Mr Barlow ignored Mrs Mayor and ignored the applicant and only responded to the applicant when Mr Tristram intervened. When Mr Barlow did start to take action after interviewing Mr Robinson in April 1999 the Tribunal is surprised that his immediate action following that interview was to inform Mr R formally of the complaint against him. His actions again smack of protecting the accused at the cost of the complainant. He did not copy documents to Mrs Mayor. His arrangement of a date when the formal grievance could be taken was re-arranged not to Mrs Mayor's advantage, but to that of the representative of Mr R. Again, it appears that Mr Barlow has gone out of his way to assist the person complained of and not the complainant. Finally, he allowed Mr R's representative to insist that he be present. Mr Gorton submitted to the Tribunal that it was a question of natural justice. However, these were not disciplinary proceedings. This was the first stage of a grievance/complaint. It would have been most sensible if Mr Barlow had agreed with both parties long in advance of the meeting the procedure to be followed. Finally, this matter had been going on for two and a half years and there was a significant lack of action by management to deal with it in a purposeful and reasonable way. The Tribunal was satisfied that the applicant was less favourably treated in the way her complaint was investigated and with the proposals for how it would be dealt with. 23 It is also satisfied that she was subjected to a detriment in the way she was treated after she had made her complaint. There were two attempts to discipline her and there was also the suspicion that management were looking for evidence against her. The Tribunal notes that the incident of the tapes at Bury Bus Station was not refuted. The applicant found it advisable to move from Leigh Bus Station temporarily, although she did so reluctantly. She was assured that her complaint would be dealt with in a month, but because of the delay in investigating and dealing with her complaint, she was still at her 'temporary' location by July, 1999. 24 The question is then whether this was because of her sex or because she had claimed unlawful sex discrimination. The Tribunal is satisfied that it was not because of her sex. However, it concludes that the reason for the less favourable treatment was the fact that the applicant had complained of unlawful sex discrimination. The Tribunal has been told that this was the first complaint of harassment which the respondent had received. Victimisation does not mean inevitably that malice is involved. It seems clear to the Tribunal that the respondent's managers were unable to deal with a complaint of unlawful sex discrimination. They did not know how to process it or what procedure to follow. Having found the respondent's explanation of why there was delay and the procedure proposed unsatisfactory. The Tribunal is satisfied that the reason for the delay and the procedure proposed was the fact that the applicant had claimed unlawful sex discrimination, and in particular harassment. The Tribunal has no problem in believing that had this been a different complaint it would have been dealt with much more quickly and an agreed procedure reached and followed. The Tribunal therefore finds that the applicant was unlawfully victimised contrary to section 6(2)(a) read with section 4(1) in the way that the applicant was given access to the grievance procedure and the way in which that procedure was operated. It also finds that the applicant was unlawfully victimised contrary to section 6(2)(b) read with section 4(1) in that she was subjected to a detriment by the two attempts to discipline her, the attempt to find evidence against her and the unnecessarily long time in which she was required to stay away from her permanent post." The approach to a claim of discrimination by way of victimisation[18]In dealing with a claim of victimisation by way of discrimination (as with a claim for sex discrimination) an Employment Tribunal has to consider and answer the statutory question posed by the SDA. Further, an Employment Tribunal has to explain why it has answered the statutory question in the way that it has in such a manner that:(a) the parties can see therefrom why they have won or lost, and(b) this Tribunal or, on further appeal, the Court of Appeal, can see whether any question of law arises (see Meek v City of Birmingham District Council [1987] IRLR 250 ).[19]In determining whether the Extended Reasons given by an Employment Tribunal give a sufficient account of the facts and the reasoning of the Employment Tribunal to satisfy the above requirements this Tribunal takes a benevolent approach (see for example Lindsay v Alliance & Leicester Plc (EAT/1317/98)).[20]As was pointed out by Mummery LJ in Martins v Marks & Spencer Plc [1998] ICR 1005, at 1019 A to D:
"Lord Browne-Wilkinson, with whose speech the other four members of the appellate committee concurred, said: 'Although, at the end of the day, section 1(1) of the Act of 1976 requires an answer to be given to a single question (viz. has the complainant been treated less favourably than others on racial grounds?) … it is convenient for the purposes of analysis to split that question into two parts – (a) less favourable treatment and (b) racial grounds …' The first part of the question is: was the applicant treated by Marks & Spencer Plc less favourably than they treated or would treat another person of a different racial group in the same or relevantly similar circumstances? The answer to this question requires a comparison to be made …"
In our judgment the same can be said of the statutory question posed by section 4 of the SDA, namely that it requires an answer to be given to a single question (viz: has the complainant been treated less favourably than others because she has done a protected act). Further in our judgment it can be convenient for the purposes of analysis (and often it is necessary for the purposes of analysis) to split that single question into its constituent parts, namely: (a) less favourable treatment (in the circumstances relevant for the purposes of the SDA) and (b) the protected act (and thus the reason for the less favourable treatment, or causation). The first part of the question (less favourable treatment) necessarily involves the making of a comparison and thus the identification of an actual or hypothetical comparator.[21]In this connection we were referred to Chief Constable of West Yorkshire Police v Khan [2000] IRLR 324 and an unreported decision of the Court of Appeal, TNT Express Worldwide (UK) Ltd v Brown (Tuesday, 4 April 2000) in which the Court of Appeal refer to the decision in Khan . We were also told that very recently the House of Lords have given permission to appeal in the Khan case.[22]Lord Woolf gives the judgment in the Khan case. In it, after a discussion of three House of Lords cases (namely R v Birmingham City Council, Ex parte Equal Opportunities Commission [1989] IRLR 173 , James v Eastleigh Borough Council [1990] IRLR 288 and Nagarajan v London Regional Transport [1999] IRLR 572 ) Lord Woolf says this in paragraph 23:
"In view of the combined effect of the three decisions of the House of Lords to which I have referred, the tribunals in this case were correct to take the view that if the respondent was treated less favourably contrary to s.2 that was by reason of a circumstance referred to in s.2(1)(a) RRA 1976. If it had not been for the proceedings brought under the Act a reference would have been provided."
[23]Lord Woolf then turned to the issue which, at paragraph 17 of the judgment, he records was the feature of the case upon which it was accepted by Counsel for the Respondent the outcome of the appeal depended and in paragraph 24 stated as follows:
" It is now necessary to return to the question as to who is the correct comparator. Here I would like to look favourably upon Mr Bean's submission that you should ask whether the respondent was treated any differently from anyone else who brought proceedings. However, both on authority and on my construction of the Act, I feel driven to conclude that this is not the correct approach. The correct approach to the application of s.2 in this context is to identify the appropriate comparator, not by looking at the reason why the reference was not provided, but by considering what was requested. Here what was requested was a reference and it is necessary to compare the manner in which other employees in relation to whom a reference was requested would normally be treated and compare the way they would normally be treated with the way in which the respondent was treated. It is the request for a reference which is the circumstance which is relevant in finding the comparator under s.2 of the Act. The reason why the respondent was treated less favourably with regard to a reference was because he had brought proceedings. It would not, however, be correct to compare him only with those persons in order to ascertain whether he has been treated less favourably."
[24]As I read paragraphs 23 and 24 of Lord Woolf's judgment, they contain an approach which(i) treats the constituent parts of the single statutory question as separate questions, and(ii) does not for analysis, or otherwise, on the issue of causation treat the definition of a protected act as one which contains more than one element.[25]In paragraph 35 of the judgment in the TNT case, delivered by Peter Gibson LJ he says this:
"Counsel has ascertained that Nagarajan in this court was referred to in the skeleton arguments in Khan so that it cannot be maintained that what I said in the Nagarajan was not before this court in Khan . Wakeman was not cited in Khan , but it was a decision on s. 1(1)(a) of the Act, not s. 2(1). The fact that under Khan employees invoking the discrimination legislation against their employers are given protection against victimisation whereas those who bring proceedings against their employers on other grounds are not given protection does not seem to me a sufficient reason for not following Khan . Whatever conclusion I might have reached but for Khan , in my judgment this court should follow a very recent decision of this court on the same specific issue whether the comparator must be a person suing the employer but not under the Act. It is clear that this court in Khan decided that that was not necessary, that the comparator was to be identified by looking at what was requested (not at the reason why the request was refused), and asking how that request would normally be treated and then comparing that normal treatment with the treatment afforded the applicant."
Naturally this paragraph accurately describes the decision in Khan and recognises that the approach in Khan is, or may be, at odds with the approach that Peter Gibson LJ took in Nagarajan where, in identifying the control group for the purposes of deciding whether or not there had been less favourable treatment, he expressed his approval of an identification of the control group on a "like with like basis".[26]Although the decision of this Tribunal (chaired by me) in Lindsay v Alliance & Leicester Plc (EAT/1317/98) was not the subject of any detailed argument during the hearing before us I accept that the decision therein that in cases of discrimination by way of victimisation "the race connection" or "the sex connection" has to be taken into account when considering and applying the statutory question (see, in particular, paragraphs 52 to 61 of that judgment) is at odds with the Khan case. Naturally we accept that we are bound by the Khan decision of the Court of Appeal and that at present it is declaratory as to the law.[27]The fact that argument was not addressed to the Lindsay case and the difference, or possible difference, between the approach of the Court of Appeal in the Nagarajan and Khan cases referred to in the TNT case was in our judgment a correct recognition by Counsel that an application of the approach in the Khan case is not an essential feature of the arguments for or against this appeal. The first part of the appeal[28]This relates to the finding of the Employment Tribunal that the Applicant had suffered discrimination by way of victimisation because of(i) the way in which the Applicant was given access to the grievance procedure and the way in which that procedure was operated (and thus the manner in which her grievance had been dealt with by the Appellant) and(ii) the unnecessarily long time in (sic) which she was required to stay away from her permanent post. In our judgment it was correctly accepted by Counsel for the Appellant that the approach and reasoning of the Employment Tribunal concerning the delay and the procedure proposed (and adopted) in respect of the grievance procedure applied equally to their conclusion in respect of the length of time the Applicant was required to stay away from her permanent post, albeit that these matters are dealt with in different parts of paragraph 24 of the Extended Reasons.[29]The Appellant's argument had two strands, namely:(a) that in concluding that the Applicant had been less favourably treated the Employment Tribunal failed to make any, or any proper, comparison; and further or alternatively(b) that on the assumption that the Employment Tribunal did make a proper comparison their conclusion as to causation was flawed.[30]The second limb of the Appellant's argument was based on the contention that the Employment Tribunal had found that the real or effective reason for the way in which the Applicant handled the grievance was managerial incompetence and that this finding meant that the Appellant was not less favourably treated "by reason of the protected act".[31]A further argument advanced by the Appellant was that when the Extended Reasons were read as a whole and in particular in the light of the findings on direct sex discrimination and in respect of Mr R's attempt to discipline the Applicant and the video, they demonstrated that the Employment Tribunal had not taken a sufficiently diligent or defined approach and had in effect reached their conclusions because they had concluded that the Appellant had acted unreasonably. As is demonstrated by the Zafar case, that is not a valid basis for a finding of discrimination by way of victimisation.[32]In our judgment all these arguments fail.[33]In respect of them the first point to be noted is that in paragraph 17 of the Extended Reasons the Employment Tribunal identify the statutory question, the need for a comparison and the need to show that the reason for the less favourable treatment was the protected act.[34]At the end of paragraphs 20 and 22 of the Extended Reasons the Employment Tribunal find that the Applicant was less favourably treated in the way in which her complaint was investigated and dealt with. In our judgment a fair reading of the Extended Reasons shows that the reason the Employment Tribunal reached that conclusion is that, as they say in paragraph 24:
"The Tribunal has no problem in believing that had this been a different complaint it would have been dealt with much more quickly and an agreed procedure reached and followed."
[35]Further, in our judgment, when the conclusion we have cited from paragraph 24 is read together with the findings of the Employment Tribunal as to the manner in which the complaint was investigated and dealt with which are contained in paragraphs 21 and 22 of the Extended Reasons, and are critical of the Appellant, it is apparent that the Employment Tribunal took a comparative approach.[36]In the alternative and on the basis that the Employment Tribunal took a comparative approach Counsel for the Appellant argued that nonetheless the Employment Tribunal did not sufficiently define (or explain their definition of) the comparator or control group. The argument was that the relevant comparator or control group would be an employee, or employees, who had not done a protected act, but who had made an allegation of delicacy and seriousness (e.g. of bullying) against a fellow-employee and that the reference by the Employment Tribunal to a "different complaint" did not show that they had done this. During the course of argument Mr Sanderson put to Counsel for the Appellant that having regard to the decision and reasoning in the Khan case this argument was a "dead duck". Counsel for the Appellant did not demur from this suggestion. In our judgment he was correct not to do so because if you look at the issue of less favourable treatment from the perspective of what the Applicant sought (i.e. a proper and reasonably expeditious handling of her grievance) and what she got rather than the reasons why the grievance was not dealt with reasonably quickly (and in the events that happened at all) it would in our view follow that she was less favourably treated.[37]Further and in any event, in our judgment this alternative argument(i) takes an approach to the Extended Reasons that is too narrow and linguistic, and(ii) ignores the point that understandably the Appellant was not saying that generally, through lack of a settled procedure and/or incompetence, it did not deal with formal complaints properly and with reasonable expedition.[38]In our judgment a fair reading of the Extended Reasons is that the Employment Tribunal's finding that they had no problem in believing that had this been a different complaint it would have been dealt with much more quickly and an agreed procedure reached and followed, is one which is considering (and comparing) a complaint that was serious and of some delicacy rather than a complaint which might be described as trivial (such as a complaint that the offices were too hot, which was one of the examples given by Counsel for the Appellant). It follows that in our judgment the Extended Reasons show that the Employment Tribunal were taking an approach which compared "like with like".[39]I now turn to deal with the Appellant's argument on causation.[40]At the heart of this argument was the point made by Mummery J in paragraph 40 of his judgment in O'Neill v(1) Governors of St Thomas More RCVA Upper School(2) Bedfordshire County Council [1996] IRLR 371 (which is a case referred to in paragraph 17 of the Extended Reasons) by reference to Banque Bruxelles v Eagle Star Insurance Co Ltd [1995] 2 WLR 607 at 620 to 621, that the event or factor alleged to be causative must provide more than "just the occasion for the result complained of".[41]The Appellant's argument was that given the findings of the Employment Tribunal as to the incompetence of the Appellant's management, the protected act was no more than the occasion for the result complained of. We do not agree.[42]In our judgment the finding of the Employment Tribunal was that to a significant degree the incompetence and failure they found to exist in the manner in which the grievance was dealt with was because it was a grievance based upon an allegation of sexual harassment. It follows that the findings of incompetence were not free-standing. Put another way, the finding was not that the Appellant's management was generally incompetent or that generally they did not deal with grievances with reasonable expedition by applying or setting up appropriate procedures.[43]It follows that in our judgment the conclusion reached by the Employment Tribunal was that but for the fact that the complaint was one of unlawful sex discrimination the Applicant would have been treated differently and therefore would not have suffered the less favourable treatment they found to exist.[44]We now turn to consider the more general point raised that when the Extended Reasons are read out as a whole the basis of the Employment Tribunal's decision is that the Appellant acted unreasonably. We do not agree.[45]In our judgment their approach to the claim based upon the manner in which the Applicant's formal complaint was dealt with and thus the period of time she remained away from her permanent post demonstrates that this was not the approach taken by the Employment Tribunal.[46]Further we would agree with the submission made on behalf of the Respondent to this appeal (the Applicant below) that the parts of paragraphs 8 and 21 of the Extended Reasons dealing with the steps taken by Mr R to discipline the Applicant indicate a general approach which has regard to section 4 SDA rather than one which is based on reasonableness. Also in our judgment the first two sentences of paragraph 20 of the Extended Reasons do not lead to the conclusion urged by Counsel for the Appellant. The second part of the appeal[47]This ground relates to the finding of the Employment Tribunal at the end of paragraph 24 that the Applicant was unlawfully victimised in that she was subjected to a detriment by the two attempts to discipline her. These attempts were attempts made by Mr R.[48]In our judgment this ground of appeal succeeds for two reasons.[49]The first reason is that, in our judgment, the reasoning in respect of this conclusion contained in the Extended Reasons does not link with the reasoning in respect of the finding of the Employment Tribunal as to the manner in which the Applicant's complaint was dealt with and does not contain sufficient reasoning to show that in respect of this finding either that:(i) the Employment Tribunal applied the correct statutory test, or(ii) if they did the reasons for their conclusion.[50]In reaching this view we recognise that, as we have already mentioned, when dealing with the disciplinary action taken by Mr R in paragraphs 8 and 21 of the Extended Reasons the Employment Tribunal do consider Mr R's motivation and thus the reason why the disciplinary action was taken by him. However in our view this does not provide sufficient reasoning to support the conclusion reached that such disciplinary action founded a claim for discrimination by way of victimisation. We are of this view, notwithstanding that as mentioned in paragraph 46 hereof we have concluded that these parts of paragraphs 8 and 21 do assist the Applicant (the Respondent before us) to resist the argument that the general approach taken by the Employment Tribunal was one based on reasonableness rather than one which focused on the statutory question.[51]The second reason why we allow this part of the appeal is that, in our judgment, having regard to the position taken by the Employment Tribunal in respect of Mr R as set out in paragraph 2 of their Extended Reasons the Employment Tribunal should not have made a finding of discrimination by way of victimisation which were based on his actions and the reasons for them, without making it clear that they were proposing to do so and thus giving both parties an opportunity to consider their position as to whether Mr R should be called to give evidence.[52]In this context we record that the representatives of the parties were not completely ad idem as to what had been agreed as the background to paragraph 2 of the Extended Reasons. Counsel for the Appellant had appeared below but Counsel for the Respondent (the Applicant below) had not. During the course of the hearing they were unable to resolve their differences as to this and it seems to us that it is unlikely that they would ever be able to do so.[53]In reaching our decision to allow this part of the appeal we have not attempted to resolve the above difference between Counsel but have proceeded on the assumption that the understanding advanced by Counsel for the Respondent before us (the Applicant below) is correct. Even on that understanding, which was that it was the view of the Applicant (and her representative) that a claim for discrimination by way of victimisation founded upon the disciplinary steps taken by Mr R could be pursued, we are of the view that no such finding should have been made without the point being raised as to whether or not Mr R should be given the opportunity to give evidence in respect of the disciplinary steps complained of.[54]In our judgment, whatever the understandings of the Applicant and the Employment Tribunal, given the terms of paragraph 2, it was wholly understandable that the Appellant and its representatives were of the view that the disciplinary steps were only to be taken into account by the Employment Tribunal as background and were not to form the subject matter of a claim. It seems to us that that is the natural consequence of the stance taken and recorded in paragraph 2 of the Extended Reasons.[55]These conclusions made it unnecessary to pursue as a separate issue the question whether or not these disciplinary actions should have been considered as "an act complained of" because they took place more than three months before the issue of the proceedings (see s. 76 SDA). As we have said, this ground of appeal was not pursued in argument by the Appellant as a separate ground and we did not give leave to add it. However, the point that such steps were "out of time" adds to our conclusion that there was a breach of natural justice in the Employment Tribunal treating such matters as the foundation for a claim rather than simply as background without giving the Appellants an opportunity of calling Mr R. The third part of the appeal[56]This relates to the finding at the end of paragraph 24 based upon the attempt to find evidence against the Applicant and thus the video.[57]During the course of submissions before us, although he was not present below, Counsel for the Respondent (the Applicant below) accepted that this matter was never advanced on behalf of the Applicant as an "act complained of" and thus as something upon which a finding of discrimination by way of victimisation should be based. In our judgment Counsel was correct to make this concession even though he was not present below because(a) it accords with the summary of the submissions contained in paragraph 18 of the Extended Reasons, and(b) it accords with the fact reflected in the Extended Reasons that the Appellants called no evidence on the point and given their representation one would have expected them to call such evidence if it had been contemplated that the evidence given relating to the videos might found a claim. Conclusions[58]The first part of the appeal which is against the finding of discrimination by way of victimisation based on(i) the way in which the Applicant was given access to the grievance procedure and the way in which that procedure was operated (and thus the manner in which her grievance had been dealt with by the Appellant), and(ii) the unnecessarily long time in (sic) which she was required to stay away from her permanent post, fails and is dismissed.[59]The second part of the appeal which is against the finding of discrimination by way of victimisation based on the two attempts to discipline the Applicant succeeds and we therefore set aside this finding of the Employment Tribunal. We remit that claim to a differently constituted Employment Tribunal. For the avoidance of doubt we confirm that that Employment Tribunal could refuse to hear that claim on the basis that it is "out of time" and could if it thinks fit resolve the difference between Counsel as the understanding reached in respect of this claim at the first hearing.[60]The third part of the appeal which is against the finding of discrimination by way of victimisation based on the attempt to find evidence against the Applicant and thus the video succeeds and this finding of the Employment Tribunal is set aside. In our judgment correctly Counsel for the Respondent before us (the Applicant below) did not invite us to remit this claim and we do not do so.