MRS REA MOONSAR v FIVEWAYS EXPRESS TRANSPORT LTD [2004] UKEAT 0476_04_2709

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0476_04_2709Case No Appeal No. UKEAT/0476/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS REA MOONSARAPPELLANTFIVEWAYS EXPRESS TRANSPORT LTDRESPONDENT
Before
His Honour Judge Ansell Mrs L Tinsley Miss S M WilsonDate 27 September 2004
[1]APPEARANCES For the Appellant MS A REINDORF (of Counsel) Instructed by: Lambeth Law Centre Race Discrimination Unit Unit 46 Eurolink Business Centre 49 Efrra Road London SW2 1BZ For the Respondent FIVEWAYS EXPRESS TRANSPORT LTD (Respondent Debarred) SUMMARY Sex Discrimination Men watching pornographic films on computer in office. Whether this could amount to sex discrimination. Reverse burden of proof. Effects of failure to complaint. HIS HONOUR JUDGE ANSELL This is an appeal from a Decision of a London (South) Tribunal who heard this case on 14 April 2004, and in Reasons promulgated on 20 April made an award in respect of race discrimination including injury to feelings of £1,000, and declined to make a finding in respect of sex discrimination. The appeal lies in respect of those two issues.[2]The Appellant was employed as a Data Entry Clerk from 21 July 2003 until her dismissal on 6 October. She worked part-time between 6pm and 10pm on four nights per week, working in the Bermondsey office. The Respondents carried on business as a courier company dealing with commercial deliveries rather than passengers. The Respondents did not attend the Tribunal, nor have they attended today. We understand that they are in either receivership or liquidation.[3]The Applicant is of Indo-Caribbean origin; her parents came originally from Guyana. She is a British national. She had a full-time job during the day and the purpose of her evening work was to earn money to pay for a private hospital operation.[4]The complaint of sex discrimination arises from the Tribunal's finding that whilst she was employed in the evening certain male members of staff, on three occasions, downloaded pornographic images onto a screen or screens in the room where they were all working. Although such images were not circulated to the Applicant she worked in close proximity and was aware of what was happening. She made no complaint because she valued her job and decided to "keep her head down", and the third occasion was just before her employment was terminated. There is a finding, however, that she considered that the attitude towards her from the white male members of staff was unacceptable.[5]The award for race discrimination arose out of her dismissal. The company lost an important contract and in due course she was dismissed, allegedly on the grounds of redundancy, but the finding was that she was selected ahead of a white employee who had been working there for a shorter period of time.[6]The Tribunal dealt with their findings on sex discrimination in paragraph 8. They found generally that they were not impressed by her or her evidence. It lacked credibility in certain respects, it was inconsistent and her replies to the Tribunal were less than satisfactory. In respect of the sex discrimination, they were not satisfied that she was shown the images or that she made any complaint about others viewing such images in her presence. Her explanation as to why she did not complain did not have the ring of truth. The Tribunal was influenced by the fact that she had made no complaint and, taken in conjunction with the fact that these images were not shown to her, it was the unanimous view of the Tribunal that this was not conduct that could amount to discrimination by way of sexual harassment.[7]The award of £1,000 for injury to feelings was justified by them on the basis that she had been affected by the decision to dismiss only to the extent that she would not work again for a courier company in Bermondsey. She carried on with her day job and was able to seek and find and found alternative evening work. There was no medical evidence before the Tribunal.[8]Dealing first of all with the findings in relation to sex discrimination, the Appellant today in her case, well argued by Ms Reindorf, submits first of all the Tribunal's conclusions were wrong in law. She first of all points out that the Tribunal, under Section 63A of the Sex Discrimination Act 1975 and Barton v Investec guidelines, were obliged to find whether there were any prima facie facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the Respondents had committed an act of discrimination. If they found that then the burden would shift to the Respondents to disprove that suggestion that had arisen by virtue of the primary facts that the Tribunal had found.[9]Ms Reindorf contends that the facts of this case plainly could have amounted to discrimination in the form of sexual harassment. She submits that this sort of sexual behaviour, carried out by male office workers in the presence of a female whether or not actually directed towards her, clearly had the effect of amounting to an affront to her dignity and she says that the facts of the matter were so obvious that the Tribunal were bound to come to the conclusion that, viewed objectively, this behaviour certainly did have the potential of amounting to an affront to this lady's dignity. Indeed there was a finding that the Appellant had considered this behaviour unacceptable. Ms Reindorf referred to Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 , where detriment is proved if "by reason of the act or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work." In this case there was confirmation of that disadvantage from the finding that she found that behaviour unacceptable.[10]Ms Reindorf further submits that the core of the Tribunal's Decision, which concentrated on the lack of complaint from the Appellant, is not a relevant factor in assessing detriment, and she refers us to Driskel v Peninsula Business Services Ltd [2000} IRLR 151, where at paragraph 12 on page 155 the EAT said this:
"The ultimate judgment, sexual discrimination or no, reflects an objective assessment by the tribunal of all the facts. That said, amongst the factors to be considered are the applicant's subjective perception of that which is the subject of complaint and the understanding, motive and intention of the alleged discriminator. Thus, the act complained of may be so obviously detrimental, that is, disadvantageous… to the applicant as a woman intimidating her on undermining her dignity at work, that the lack of any contemporaneous complaint by her is of little or no significance. By contrast she may complain of one or more matters which if taken individually may not objectively signify much, if anything, in terms of detriment. Then a contemporaneous indication of sensitivity on her part becomes obviously material as does the evidence of the alleged discriminator as to his perception."
Today Ms Reindorf argues that the behaviour in this case clearly falls within the first category, namely that the obvious detrimental effect is that it is undermining her dignity at work.[11]The complaint is also made by Miss Reindorf that the Tribunal did not consider an appropriate male comparator, whilst the behaviour in itself points to less favourable treatment. She says that if the Tribunal had consider the issue of comparator it would then have to consider the effect that the use of pornography in the workplace would have had on such a comparator and would have concluded that the use of pornography in the presence of a woman was less favourable treatment that the use of pornography in the presence of a suitable hypothetical male comparator.[12]Having considered these various factors, we accept the submissions made by Ms Reindorf. It seems to us that, viewed objectively, this behaviour, namely that on three occasions male colleagues in the same room were downloading onto a computer pornographic material, clearly had the potential effect of causing an affront to a female employee working in the close environment and as such would be regarded as degrading or offensive to an employee as a woman. It was, in our view, clearly potentially less favourable treatment and a detriment clearly followed from the nature of the behaviour, and there was evidence before the tribunal that this lady indeed found that behaviour unacceptable. The fact that she did not complain at the time does not, in our view, afford a defence where the behaviour was so obvious, as in this case.[13]That being the situation arising from the primary facts, the burden would then shift to the Respondents to show that there was not less favourable treatment, for instance that she was a party to or enjoyed what was going on. That of course has not happened in this case because the Respondents have played no part in the proceedings, and it seems to us that it must therefore follow that as a result we must substitute a finding that there was sexual discrimination in this case, and remit the matter back for an award in respect of that discrimination.[14]As regards the award of £1,000 in respect of the race discrimination, we have of course been referred to the passages in Vento v Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871 that set out the banding and guidelines at paragraph 65. Whilst Ms Reindorf accepts that she is bound by the Tribunal's findings as to the effect on the employee which, as the Tribunal found, were limited to the extent she would not work again for a courier company in Bermondsey, she also submits that the level of award must, to a certain extent, be affected by the act or the offence itself and should not be so low that the public's respect for anti-discrimination legislation and the manner in which it is dealt with by the Tribunals comes into disrepute. She points in this case to the fact that this discrimination occurred in the course of dismissal, albeit dismissal for redundancy, and she contends that that in itself is a serious matter warranting an award in excess of £1,000.[15]She has referred us to the annual review on compensation awards for the year 2002 in which, it appears, indeed only one award for injury to feelings in the field of race discrimination in 2002 for a sum of less than £1,000 compared to eight in the previous year, 2001. She also refers to a passage from Vento , paragraph 53, where that court had cited with approval dicta of Smith J in Prison Service v Johnson [1997] ICR 275 where she said this at page 283:
"(i) Awards for injury to feelings are compensatory. They should be just to both parties. They should compensate fully without punishing the tortfeasor. Feelings of indignation at the tortfeasor's conduct should not be allowed to inflate the award. (ii) Awards should not be too low, as that would diminish respect for the policy of the anti-discrimination legislation. Society has condemned discrimination and awards must ensure that it is seen to be wrong."
[16]Whilst we ourselves if deciding the case might have awarded a higher figure we have to ask ourselves is whether the Tribunal's award was really below the bare minimum that one would expect to see for this type of behaviour, in other words, was it outside the reasonable band of awards that a tribunal should make. We are not prepared to say that it was outside that band. It was on the low side but the Tribunal gave their reasons in paragraph 14, in particular the limited injury to feelings that had occurred, and for that reason we would not seek to interfere with the Tribunal's award.[17]Thus there will be a finding that there was sexual discrimination and the matter will be sent back to a different tribunal for a remedies hearing.