(1) 'A' (2) 'B' v 'C' [2003] UKEAT 0357_02_1703

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0357_02_1703Case No Appeal No. EAT/0357/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
(1) 'A' (2) 'B'APPELLANT'C'RESPONDENT
Before
His Honour Judge Ansell Ms C Baelz Mr P M SmithDate 17 March 2003
[1]APPEARANCES For the Appellants MR MICHAEL NORMAN (of Counsel) Somerset Country Council Legal Services County Hall Taunton Somerset TA41 4DY For the Respondent MR DAVID MASSARELLA (of Counsel) UNISON 1 Mabledon Place London WC1H 9AJ HIS HONOUR JUDGE ANSELL This is an appeal by a District Council, 'A', and their employee, 'B', against a decision of an Employment Tribunal sitting at Bristol who by a majority held that the Respondent, 'C', formerly employed by 'A', had been subjected to unlawful sex discrimination by the Appellants and had been constructively and unfairly dismissed. The Respondent's complaint of victimisation was unanimously dismissed. The decision, which was promulgated on 28 January 2002, followed a 5 day hearing held in December 2001 which took evidence from 20 witnesses as well as considering considerable documentation in the case.[2]The second Appellant was a long serving employee of the first Appellant and by the time of the hearing had been responsible for management of certain Government funded training courses, aimed at young people, for approximately 4½ years. He was responsible for managing a staff which was almost exclusively female and until the matters with which the Tribunal were concerned had not been previously accused of any inappropriate behaviour. A number of women members of staff spoke highly of the Respondent both at the disciplinary investigation and before the Tribunal.[3]The Respondent first came to work for the Appellants in 1998. She was then a divorced woman with 2 children although living with her partner whom she has since married. Her evidence, which was not disputed, was that as a child she had suffered sexual abuse from her father, uncle and a family friend. By June 1998 she was working with a particular self-help group serving survivors of such experiences.[4]On 5 November 1998 the Respondent was involved in a road accident in which she suffered whip-lash injury and was left with a sore neck. It was her case that on 11 November following the accident, 'B' began to massage her neck when they were alone together. It was this incident which, on her case, started a process in which over the following months his touching of her became ever more inappropriate and invasive. Her case was that he began to rub her breasts both outside and inside her clothing and also to stroke the area of her vagina and clitoris, again both inside and outside her clothing. The first occasion upon which 'B' touched her breasts outside her clothing she had put at 6 May 1999. Other specific instances of such behaviour were on 12 May 1999, 13 September 1999 and finally on 15 February 2000.[5]The Tribunal were unanimously satisfied that the massaging of the neck incident had taken place and further were satisfied that in January or February 1999 'C' had made complaint to a work colleague, Mr W, about something that 'B' had done which Mr W regarded as sufficiently improper for him to advise her to report it to 'A', although it appears that no complaint was made at that time. The Tribunal were also satisfied that on 7 December 1999 'C' had made a complaint of sexual harassment to Miss A B, an accredited counsellor.[6]The formal complaint of sexual harassment was not made until 29 February 2000 and 'B' was suspended shortly afterwards on full pay pending investigation. A disciplinary hearing was held on 17 April and decided that the complaints were not made out and 'B' was reinstated. 'C' took an overdose of paracetamol the following day. Her application alleging sex discrimination was lodged on 11 May, and on 26 May she resigned her employment with effect from 30 June. Her complaint alleging unfair dismissal was lodged on 28 June.[7]The grounds upon which this appeal are brought are in relation to the finding of sex discrimination, that the Tribunal failed to direct itself properly as to the standard and/or burden of proof, that its decision on the facts was perverse and accordingly it should have dismissed the complaints of sex discrimination and unfair constructive dismissal.[8]As we have set out, the last incident relied upon by the Applicant took place on 15 February 2000 and the application was presented on 11 May 2000, so the last incident was just within the three month time limit. The Tribunal found that the other incidents were strictly out of time to be relied on as causes of action as giving rise to compensation, although could have been relied on as supporting incidents of the final act of discrimination. The Tribunal were of the view that they amounted to individual acts of sex discrimination rather than component parts of one continuing act. There is no challenge to that finding. However, they continued as follows:
"On the other hand the Originating Application was lodged promptly once the outcome of the internal investigation was known and so, having found by a majority that there was sex discrimination here, we unanimously concluded that it would be just and equitable to extend the statutory time limit to permit the applicant to rely upon those incidents as causes of action."
There is a further ground of appeal against that decision in that the Tribunal failed to direct itself as to all or any relevant considerations for the exercise of its discretion to extend time and was wrong. We propose to deal with that issue first.[9]As is well known, Section 76 of the Sex Discrimination Act 1975 provides a 3 month time limit from the act of discrimination complained of to bring a complaint. By Section 76(5):
"A court or tribunal may nevertheless consider any such complaints, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so."
In T J Hutchinson v Westward Television Ltd [1977] IRLR 69 this court made it very clear that there was a very wide discretion under the just and equitable provision which entitled any Industrial Tribunal to take into account anything which it judges to be relevant. At paragraph 11, Phillips J said as follows:
"Because it is such a wide discretion conferred upon an Industrial Tribunal, the task which an appellant has in such a case is a heavy one. Really he must show, if he is to succeed, upon appeal, that the Industrial Tribunal demonstrably took a wrong approach to the matter, or that it took into account facts which it ought not have done, or that it failed to take into account facts which it should have done, or, as a last resort which is always open upon an appeal, that the decision was so unreasonable in all the circumstances that no reasonably instructed Tribunal could have reached it."
Further, in Aniagwu v London Borough of Hackney and another [1999] IRLR 303 , this court made it clear that pursuing an internal grievance procedure may be highly relevant to the question of whether time should be extended under the just and equitable principle. In their written submissions before the Tribunal and within the hearing the Appellants raise no particular matters in support of the argument that it would not be just and equitable to extend time. For instance, it was not suggested that a fair trial would not be possible nor that the Applicants would in any other respect be prejudiced by an extension of time.[10]The Appellants now contend that the one particular reason given by the Tribunal in paragraph 24 of their decision, to which we have already made reference, was the reasonableness of awaiting the outcome of the internal investigation. Mr Norman, for the Appellants, points out that at the time when the first complaint was notified to the Appellants on 29 February the complaints would have all been out of time save for the 15 February incident. As the outcome of the investigation was the only specific ground mentioned by the Tribunal in their decision, there being no other grounds mentioned, the Tribunal were therefore not entitled to rely on that particular matter so as to entitle them to extend time under the just and equitable principle.[11]Mr Massarella, for the Respondent, reminds us that in the course of its decision the Tribunal explicitly referred to a number of other highly relevant and credible reasons why the Respondent had difficulty in confiding to others about the harassment that she was experiencing, let alone raise an internal grievance or issue Tribunal proceedings. For example, in paragraph 17 of their decision they referred to the Respondent as being very anxious not to draw attention to herself and having gone back to the coping technique of disassociation which she had learned at the time of her childhood abuse, whereby she effectively dissociated herself from what was going on. It was only in December 1999, by which time she had gained the impression that one of the other employees, Miss N, was also receiving unwelcome attention from 'B' that she felt able to confide in her counsellor in a confidential environment. They also added in paragraph 20 that they were well aware from other cases how difficult it can be for a woman to make complaints of this kind particularly against a popular and well regarded manager. He submits that it is not only delay that the Tribunal has to consider but all the other factors in deciding whether to extend time. He also reminds us that this court is specifically enjoined to avoid concluding that an experienced Tribunal by not expressly mentioning some point or breach has overlooked it – see Retarded Children Aid Society v Day [1978] ICR 437.[12]We accept the Respondent's submissions. We are quite sure that the Tribunal had these many factors in mind when deciding to exercise their discretion in the manner in which they did. It is certainly cannot be said that no reasonable Tribunal could have come to the decision that they did.[13]We turn to consider the other grounds of appeal and at the outset make this brief, if somewhat trite, observation. Whilst the Appellants conceded that there may have been social conduct on the dates of the various allegations, they had denied that there had been any acts of sexual harassment at all and asserted that the allegations were fabricated. Given that there were no witnesses to the acts alleged, this was a Tribunal case in which credibility was the dominant issue and it was for the Tribunal to reach its own conclusions as to the credibility of witnesses. This court shall be loath to interfere with the view that the Tribunal have taken unless there is a clear error of law or perverse view of the facts. The fact that the decision was a majority decision is: "A good indicator of the care which must have been taken by all three members." per Morrison J in Chief Constable of the Thames Valley Police v Kelloway [2000] IRLR 170 at 174.[14]The first ground we consider is the failure of the Tribunal to expressly direct itself as to the appropriate standard of proof in cases where serious allegations such as sexual assaults are made. Where a serious allegation is made in a civil or family case, such as an allegation of criminal conduct or sexual abuse, the standard of proof remains the civil standard, ie on the balance of probabilities. However, the more serious the allegations the more cogent is the evidence required. The classic modern dictum, which is well known particularly to those practising in the area of family and child care work, are the words of Lord Nicholls in re H (minors) [1996] AC 563 , where he set out the position as follows:
"… this does not mean that where a serious allegation is an issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established."
Later in the speech, Lord Nicholls makes it clear however, that he is not seeking to impose a new standard of proof in serious cases:
"If the balance of probability standard were departed from, and a third standard were substituted in some civil cases, it would be necessary to identify what the standard is and when it applies. Herein lies a difficulty. If the standard were to be higher than the balance of probability but lower than the criminal standard of proof beyond reasonable doubt, what would it be? The only alternative which suggest itself is that the standard should be commensurate with the gravity of the allegation and the seriousness of the consequences. A formula to this effect has its attraction. But I doubt whether in practice it would add much to the present test in civil cases, and it would risk causing confusion and uncertainty. As at present advised I think it is better to stick to the existing, established law on this subject. I can see no compelling need for a change."
[15]We have not been referred to any authorities which suggest that it is incumbent upon courts and Tribunals to specifically remind themselves of the correct approach when dealing with serious allegations such as this case. In R v Hampshire County Council, ex parte Ellerton [1985] 1 All ER 599, Slade LJ cited, with approval, the words that had been used by McCullough J in the lower court when he said this:
"In any event, to speak more generally, I believe that a tribunal of fact will automatically take the relative seriousness of an allegation into account as one of the factors bearing on the question of whether the civil burden of proof has been discharged."
[16]Counsel for the Appellant criticises the Tribunal for its failure to remind itself of the correct approach and has referred to a particular paragraph of the decision, namely paragraph 23, where they set out their task as one of:
"… balancing the conflicting arguments …"
[17]We have no doubt that the Tribunal were well aware of the gravity of this case having heard 5 days of oral evidence detailing serious allegations of sexual assault and taking evidence from 20 witnesses. The decision itself strikes us as a thoughtful and carefully reasoned decision which carefully analyses the evidence and demonstrates to us the seriousness with which the Employment Tribunal approached its decision making process. Indeed, they had been reminded by the Appellant's counsel in his closing submissions that serious convincing evidence was required to meet the standard of proof. We are quite certain that the Tribunal were aware of the cogency of the evidence required.[18]The second complaint relates to the burden of proof and in particular how the Tribunal treated as relative and probative the evidence of Dr Forshall, a Consultant Psychiatrist. Dr Forshall was a jointly instructed expert who was asked to address a number of issues, in particular whether the Respondent as a result of her childhood sexual abuse would seek to detach herself from the experience of these sexual assaults, which would account for her inability to resist them. This issue had been raised by the Appellant's lawyers in their letter of instruction to Dr Forshall. He had also been asked to address the question of whether it was common for victims of child sexual abuse to make allegations of sexual impropriety in adulthood against innocent third parties. This had arisen because the Appellants had originally sought to use a medical report by Dr Clair Parks, disclosed just before the date of the original hearing. Dr Parks had neither met the Respondent nor seen any of her medical records but put forward various theories suggesting that she was likely to be a vulnerable individual with significant mental health problems, and also the possibility that as a sufferer of abuse as a child, she might wish to vent her anger and have desire for revenge possibly against an innocent third party.[19]The Respondent's representatives objected to this evidence principally on the grounds that Dr Parks could not properly give expert medical evidence about the Respondent without having met her. Thus Dr Forshall was duly appointed as a joint expert. In paragraph 21 of their decision the majority said this:
"Significantly, there was no plausible explanation put forward as to why the applicant should have fabricated these allegations against 'B'"
In paragraph 22, referring to Dr Forshall's evidence, they said this:
"On the other hand, he was unable to put forward any alternative explanation as to why the applicant should have made these allegations; in his experience malicious allegations of this kind are only made by people with some sort of personality disorder of which he detected no trace here; while allegations genuinely believed but with no objective basis in fact tend only to made – and that fairly rarely – by people who are significantly mentally ill and in his view the applicant did not fit within that category."
Finally, in paragraph 23 the majority said this:
"Nonetheless, balancing the conflicting arguments as best we could, and bearing in mind in particular the lack of any apparent motive for fabrication, the majority of us concluded that it was more likely than not that the allegations set out by the applicant in her witness statement to the tribunal were true."
The Respondents contend that the Tribunal's approach in apparently relying so heavily on the fact that no plausible explanation had been put forward as to why the Respondent should have fabricated these allegations was tantamount to reversing the burden of proof and in effect placing a burden on the Appellants to prove that the Respondent had some sort of personality disorder and was significantly mentally ill. Further, the Applicants criticise the Tribunal's decision for using the absence of motive as the factor which effectively tipped the scales in favour of the Respondent.[20]The Respondents reminded us that the Appellants had indeed referred to matters in the course of the hearing which it was suggested provided the Respondent with a motive for fabricating allegations against her. These included 'B's handling of the complaints by outside agencies against the Respondent, the Respondent's dissatisfaction with her workload and salary and the Respondent's view that 'B' was taking credit for her work, although it transpired from the evidence that these matters post-dated the date when she had made a complaint to the counsellor in December 1999. We do not find that the rejection of these suggestions for motive and their rejection by the Tribunal amounted to reversing the burden of proof. It was no more than a finding that an attack on the Respondent's credibility by way of suggesting a motive for fabrication had failed.[21]Further, we do not accept that the Tribunal treated the absence of motive as a determinative consideration. The word used by the Tribunal was 'significantly' not 'decisively' and indeed on reading the decision as a whole there were at least 10 factors that the Tribunal identified as supporting the Respondent's case. These included a number of witnesses who spoke as to the deterioration of her condition in December 1999, where again the Tribunal used the word 'significantly', the complaint to the counsellor in that month, the evidence from Miss N, the evidence from Dr Forshall, the deliberate neck touching and corroboration from Mr W, the familiarity in the relationship between the parties, and 'B's awareness of the Respondent's history as a victim of child sexual abuse. We therefore do not accept that the Tribunal used the absence of motive as a determinate consideration.[22]The second major ground was that the Tribunal's decision on the facts was perverse. The Court of Appeal recently confirmed that the hurdle in the perversity appeal is set extremely high and emphasised the limitations on an appellate court's competence to question the evidential basis for findings of fact by the court below – see Yeboah v Crofton [2002] IRLR 634 , where Mummery J at paragraph 93 said thus:
"Such an appeal ought only to succeed where an overwhelming case is made out that the employment tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached. Even in cases where the Appeal Tribunal has 'grave doubts' about the decision of the Employment Tribunal, it must proceed with 'great care': British Telecommunications plc v Sheridan [1990] IRLR 27 at paragraph 34."
[23]The Appellants contend that the Tribunal allowed itself to be influenced decisively by features in the case which had no or little probative weight. As formulated, this ground does not, in our view, get over the high perversity hurdle. In support they contend that the Tribunal was influenced decisively by the absence of a plausible explanation as to why the Respondent should have fabricated the allegations. We have already dealt with these matters above. Our view is that the issue of motive was plainly a relevant consideration for the Tribunal. The Appellants then criticise the Tribunal for admitting and giving weight to the evidence of Dr Forshall and contend that such evidence was not probative as to the truthfulness or otherwise of the Respondents allegations, and in particularly that the Tribunal ignored the evidence of Dr Forshall that he had not seen the medical history of the Respondent nor had he conducted any structured psychological evaluation and that he was not in a position to assess whether or not she had a personality disorder.[24]We have already commented that Dr Forshall was a joint expert and that both parties had an opportunity of writing to him, setting out the matters upon which they sought his opinion. His report was in fact available some months before the hearing, yet they took no steps to seek permission for Dr Parks, their original expert, to give evidence or meet with the Respondent and produce an amended report. Contrary to the suggestion by the Appellants, Dr Forshall had seen some of the medical history of the Respondent and referred to it in his report. At the beginning of the full merits hearing the Appellants applied to have his evidence excluded at the liability stage and only admitted at the remedies stage. Full argument was heard from both sides and the application was refused by the Tribunal.[25]In evidence, the Doctor accepted that he had not carried a structured psychometric test, although had not been asked to do so, and accepted that such tests are an important resource. In his report, in answer to a question that had been posed by the Appellants, he stated that he could find no evidence to suggest that the Respondent had a disordered personality when he interviewed her. Further, in dealing with Dr Forshall's evidence the Tribunal said this:
"We have also considered the evidence of Dr Forshall. Dr Forshall was the first to admit that it was not his function to pass judgment upon the truth or otherwise of what the applicant was telling him by way of her history; and we reminded ourselves with particular care that just because he saw no reason to doubt the applicant's truthfulness, we should not allow ourselves to be unduly influenced by that but should form our own view."
Again, we can find no criticism of the manner in which the Tribunal dealt with the Doctor's evidence.[26]Next, the Applicants complain that Mr W's evidence could not, on a proper analysis, be capable of supporting the neck allegation in November 1998. Mr W was a work colleague of the Respondent and gave evidence that in around January 1999 he had been at the Respondent's house when 'B' visited. He stated that the Respondent phoned him later and was withdrawn and upset and told that there had been an upsetting incident between her and 'B'. The Tribunal, in dealing with this evidence, said at paragraph 13:
"We were of course hampered by the fact that Mr W could not now recall what it was the applicant complained of although the clear implication was that it was some sort of impropriety."
The Respondent's statement referred to her speaking to Mr W and telling him that she was being sexually harassed, although the only specific incident that had taken place by that time would have been the neck incident. We can find no complaints in the Tribunal's approach regarding Mr W's evidence.[27]Further, there is a complaint that again the Tribunal treated the statement of CN, a work colleague, as lending some support to the Respondent's allegations, whereas upon a proper analysis it had no probative or supporting weight. Ms N did not in fact give evidence and the Tribunal dealt with her statement, stating in terms at paragraph 18 that:
"We … treated her statement with considerable caution."
Her statement referred to 'B's behaviour including inappropriate touching, staring and sexual innuendo. The Appellants suggest that this was a different sort of behaviour to that experienced by the Respondent and therefore the Tribunal should have disregarded this evidence. We can see absolutely no force in this submission at all.[28]Finally, the Appellants then contend that the Tribunal was selective in their approach towards the Respondent's evidence and ignored certain inconsistencies that they had found in respect of 2 particular issues. They contend that the effect of such inconsistencies was that no reasonable Tribunal should reproach the Respondent's evidence on a basis other than it should only be accepted if and to the extent it was supported by other relevant evidence. The 2 issues were dealt with in paragraphs 6 and 8 of the Tribunal's decision. The Applicant's case was that 'B' had telephoned her out of the blue to offer her a job, the implication being that he was in some way targeting her even at that stage. There was however evidence from another employee who suggested that she had contacted the Respondent to ask for permission to release her telephone number to 'B'. The Tribunal made a finding that they were not prepared to find on a balance of probabilities that 'B' was aware of the Respondent's history and therefore approached her in the way that the Respondents seemed to suggest. She also suggested that he had questioned her in order to draw from her details of the experiences that she had undergone as a child. The Tribunal were unanimously satisfied that 'B' was aware of the Respondent's childhood history but thought it more likely than not that he had gained that knowledge by the process which he described in his evidence. Further, the Tribunal pointed out that in an account given to the Avon and Somerset Constabulary in December 2000 she had alleged that her first recollection of sexual touching was in January 1999 rather than the November 1999 incident and that although she said that the incident began with 'B' rubbing her neck, she then alleged that in the course of the same incident he rubbed his hands over her breasts but outside her clothing. The Tribunal made reference to the discrepancies as to timing, the order and nature of events as between various statements in paragraph 15 of their decision. However, at the end of the day it was the Tribunal's duty to balance these inconsistencies against the other pieces of evidence to which we have already made reference and in paragraphs 20 – 23 of their decision carry out what in our view was the correct balancing exercise. As they put it in paragraph 23: Weighing all these conflicting arguments was not easy, particularly when we bore in mind that 'B' is a man of good reputation and various of his female members of staff testified to us in trenchant terms that they did not believe that he was the sort of person who would behave in this way and that he had never given them any cause for concern at all. Nonetheless, balancing the conflicting arguments as best we could, and bearing in mind in particular the lack of any apparent motive for fabrication, the majority of us concluded that it was more likely than not that the allegations set out by the applicant in her witness statement to the tribunal were true." Although not set out in those terms, the clear import of the Tribunal's decision was as regards the 5 key allegations, they found the Respondent to be an honest and truthful witness. We cannot find any fault in the Tribunal's reasoning or decision. There was evidence to support each of the Respondent's allegations including her own testimony, her diary entries, the observation of third parties and expert medical evidence. The Tribunal reached a conclusion which was open to it on the evidence after a careful and balanced consideration and in our view its decision must stand.