UK INSULATION LTD v MRS L COOK [2004] UKEAT 0605_04_0811

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0605_04_0811Case No Appeal No. UKEAT/0605/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
UK INSULATION LTDAPPELLANTMRS L COOKRESPONDENT
Before
His Honour Judge Richardson Dr S R Corby Mr M WorthingtonDate 8 November 2004
[1]APPEARANCES For the Appellant MR I STEEL (Representative) Citation Plc Caledonian House Tatton Street Knutsford Cheshire WA16 6AG For the Respondent MR IAN MOSS (Representative) Citizens Advice Specialist Support Unit The Development Centre Coxwell Avenue Wolverhampton Science Park Wolverhampton WV10 9RT SUMMARY The Tribunal made a finding of fact for which there was no evidence, which it took into account in determining that an employee did an act in the course of his employment. Case remitted to the same ET to reconsider its finding on the correct factual basis. HIS HONOUR JUDGE RICHARDSON This is an appeal by UK Installations Ltd ("the Company") against part of a decision of the Employment Tribunal sitting in Manchester entered in the Register on 9th June 2004. By its Decision the Tribunal found that the Company unlawfully discriminated against Mrs Lynn Cook on the grounds of her sex and unfairly dismissed her from her employment with them. In a subsequent decision entered in the Register on 8 July 2004 the Tribunal awarded Mrs Cook compensation for sex discrimination in the sum of £12,012 and compensation for unfair dismissal in the sum of £1,123.[2]The appeal is within a narrow compass. It concerns a single incident which took place on or about 12 August 2003. The question is whether the Tribunal's findings about that incident can stand, and whether the Tribunal correctly concluded that the Company was vicariously liable under the Sex Discrimination Act 1975 for the incident. If the appeal is allowed it will not result in the finding of unlawful discrimination being overturned in its entirety, but it will have an effect on the award of compensation. The Employment Tribunal's statement of the law[3]The Tribunal, in a careful and well crafted Decision, set out the law on this aspect of the case in the following terms:
"14. Section 41(1) SDA 1975 provides that an employer is liable for the discriminatory acts of his employees done in the course of their employment, whether or not those acts are done with the employer's knowledge or approval. … 15. Under Section 4(1) the words "in the course of his employment" are to be construed in the sense in which every lay person would understand them. The question whether an employee's discriminatory act were done in the course of his or her employment, thereby rendering the employer liable for them, should be treated as a question of fact for the Tribunal to resolve Jones v Tower Boot Co Ltd [1997] ICR 254 ."
This is an accurate summary of the law the Employment Tribunal had to apply. The Employment Tribunal's findings.[4]It is not necessary to set out the Employment Tribunal's findings on all aspects of this case. The relevant findings may be summarised as follows.[5]A fellow employee, Mr Holliday, made unwanted sexual advances to Mrs Cook in the course of his employment in 1999 and 2000. The Company was fully aware of those incidents. Mr Holliday was disciplined and warned on one occasion. Mrs Cook was greatly upset by them. On 26th July 2003 at a public house Mrs Cook learned that Mr Holliday was outside and continuing to show unwelcome interest in her movements. She was again greatly distressed. But the incident in the public house was not itself an incident for which the Company was responsible under the 1975 Act. The Tribunal found Mr Holliday was not acting in the course of his employment.[6]The Employment Tribunal's findings about the incident on 12 August are as follows:
"5.21 On or about 12 August 2003 Keith Holliday, while off sick, attended at the work premises to deliver a sick note and at the same time handed a letter to Lee Gallagher, insisting that Lee Gallagher give that letter to the applicant. Lee Gallagher, who had not been told what to do in these circumstances, and who had not been given any guidance at all concerning his involvement in this matter, handed the letter to the applicant. The applicant was very upset by that letter and reasonably regarded it as a threat to her safety."
The Employment Tribunal concluded that Mr Holliday, in handing the letter to Mr Gallagher and asking him to deliver it, was acting in the course of his employment for the purpose of the SDA 1975. The Employment Tribunal said:
"24. …In the course of his employment Keith Holliday gave Lee Gallagher a letter to be passed to the applicant; that letter was unwelcomed conduct based upon sex. … The delivery of that letter, via Lee Gallagher, was an act of sexual harassment of the applicant, who was, understandably, very upset upon reading it. In reaching this conclusion, we bear in mind that Keith Holliday handed the letter to his work colleague, Lee Gallagher, while he as on work premises delivering a sick note. The fact that Keith Holliday did not address the letter to the applicant, did not sign the letter, does not stop those actions amounting to sexual harassment of the applicant. The fact that Keith Holliday did not hand the letter to the applicant personally in the workplace does not stop the actions amounting to sexual harassment in the course of employment. Keith Holliday had that letter delivered to the applicant by taking advantage of work time, premises and colleagues."
The Employment Tribunal went on to give reasons for rejecting any defence by the Company under section 41 (3) of the 1975 Act. We need not set out those reasons.[7]The Employment Tribunal was bound to reflect its findings about what happened on 12 August in the award of compensation, and did so: see paragraph 17.1 of the second decision. The Tribunal's error[8]Unfortunately in its otherwise thorough and careful findings the Employment Tribunal made an error of fact. It was wrong to say that Mr Holliday attended work premises to deliver a sick note on the occasion when he gave the letter to Mr Gallagher. There was, quite simply, no evidence to support that conclusion of fact.[9]This point is accepted by Mr Moss in his skeleton argument and in his submissions today. He does not assert that there was any evidence before the Employment Tribunal that Mr Holliday delivered a sickness certificate on the day he gave Mr Gallagher the letter.[10]This concession appears to be inevitable. The only sickness certificate from Mr Holliday at this time is dated as signed on 14 August. The evidence before the Employment Tribunal was that the Company was told about the offending letter on 13 August, apparently the day after it was delivered. So the delivery of the letter must pre-date the delivery of the sickness certificate. The critical point therefore is that there is no evidence to support the linkage between attending to deliver a sickness certificate and delivering the letter. We add for the sake of completeness that we have been told in the Company's written submissions that if the point had been raised at the hearing the Company's evidence would have been that the sickness certificate was posted, not handed in. But as we say, the critical point is that there was no evidence to support the linkage. The appeal[11]The competing submissions on appeal are therefore as follows.[12]On behalf of the Company Mr Steel submits that it was of importance to the decision of the Employment Tribunal that Mr Holliday acted as he did while on the premises to deliver a sick note. Absent that fact, he submits, there is no proper basis for saying that Mr Holliday or for that matter Mr Gallagher were acting in the course of employment. Therefore, he says, the appeal should be allowed. If it is not to be allowed in its entirety on this issue he says the matter should be remitted to a different Tribunal to consider compensation on the basis that the Company was not responsible for the incident on 12 August.[13]On behalf of Mrs Cook Mr Moss submits that the finding about the sick note was merely incidental to the Tribunal's decision on this point. He submits that the crucial finding is that Mr Holloway had the letter delivered by taking advantage of work time, premises and colleagues. He submits that there is no reason to impugn the finding that the Company was responsible for the incident on 12 August. Application to adduce fresh evidence[14]In support of its appeal the Company applies to adduce fresh evidence - a statement which is unsigned and undated and purports to come from Mr Gallagher himself. We have considered that application. The application attracts the provisions of paragraph 8 of the Employment Appeal Tribunal Practice Direction which in turn reflect existing case law at this Employment Tribunal:
"In exercising its discretion to admit any fresh evidence or a new document, the Employment Appeal Tribunal will apply the principles set out in Ladd v Marshall [1954] 1WLR 1489 , having regard to the overriding objective, ie - (a) the evidence could not have been obtained with reasonable diligence for use at the Employment Tribunal hearing; (b) it is relevant and probably have had an important influence on the hearing; (c) it is apparently credible."
In this case Mr Gallagher was an employee of the Company. There seems to us to be no reason why his evidence could not have been obtained with reasonable diligence by the Company for use of the Employment Tribunal hearing. The evidence cannot be tested in any way although it is apparently credible. Whether it would have had an important influence on the hearing is to say the least doubtful. But since the evidence could have been obtained with reasonable diligence for use of the Employment Tribunal at the hearing we reject that application. Conclusions[15]We turn then to our conclusions. We have already summarised Section 41(1). The leading case is as the Employment Tribunal recognised Jones v Tower Boot Co Ltd [1997] IRLR 168 where Waite LJ said at paragraph 43:
"The tribunals are free and are indeed bound, to interpret the ordinary, and readily understandable, words 'in the course of employment' in the sense in which every lay-man would understand them. This is not to say that when it comes to applying them to the infinite variety of circumstances which is liable to occur in particular instances – within or without the workplace, in or out of uniform, in or out of rest-breaks – all laymen would necessarily agree as to the result. That is what makes their application so well suited to decision by an industrial jury. The application of the phrase will be a question of fact for each industrial tribunal to resolve, in the light of the circumstances presented to it, with a mind unclouded by any parallels sought to be drawn from the law of vicarious liability in tort."
That is the applicable law.[16]Although the question is one for an Employment Tribunal acting as an industrial jury, there will be cases where the known facts admitted only one answer to the question whether an act was done in the course of employment: see, for example, Waters v Commissioner of Metropolitan Police [1997] IRLR 589. But, as Waite LJ recognises in the passage which we have read, there will also be generous room for disagreement on such issues[17]The decision of the Employment Appeal Tribunal is by a majority. The reasons of the majority are as follows. We think that the Employment Tribunal's finding that Mr Holloway delivered the letter while he was on the Company's premises to deliver a sick note was of importance to its conclusions. It was set out by the Employment Tribunal not only in its findings of fact but also in one of the critical sentences which expressed its conclusion. We think that applying the broad test set out in Jones v Tower Boot Co Ltd it is quite possible that an industrial jury regarded it of importance that Mr Gallagher had a legitimate reason for being on the premises at the time when he handed the letter to his work colleague. Accordingly the majority of the Tribunal do not think that the finding was simply incidental.[18]We therefore, have to ask ourselves whether this is a case which would admit of only one answer absent the erroneous finding by the Employment Tribunal. We note what Waite LJ says about the possibility of disagreement on such issues as this. We note what he says about such issues being well suited to decision by an industrial jury. This Appeal Tribunal ought not to substitute its own decision for that of the industrial jury unless the facts admit of only one answer.[19]The majority concludes that this is a matter which ought to be remitted to the Employment Tribunal because it is not possible to say that the facts admit of only one answer. The majority then has to go on to consider the question whether remission ought to be to the same or to a different Employment Tribunal. We have no hesitation in saying that it should be a remission to the same Tribunal. In reaching this conclusion we apply the criteria set out in Sinclair Roche & Temperley and others v Heard and Another [2004] IRLR 763 . We think that the Employment Tribunal's decision which far from being totally flawed is an excellent decision requiring respect and we consider that it is the appropriate body to determine this issue which is within relatively short compass. We have no doubt that the Tribunal will approach the issue professionally avoiding what Lord Phillips has called the second bite of the cherry. We consider that the passage of time is relatively short and that proportionality points strongly to the same Tribunal taking the decision. That then is the view of the majority.[20]Dr Corby dissents from this conclusion. Her conclusion is that the finding by the Employment Tribunal that Mr Holliday handed the letter to his work colleague while he was on work premises delivering a sick note is a finding which is no more than incidental to the question whether he was acting in the course of his employment. In her view the critical sentence is the Tribunal's conclusion that he took advantage of work time premises and colleagues.[21]It follows therefore that the appeal will be allowed that the issue will be remitted to the same Employment Tribunal. Nothing that we have said today can prevent either party from making an application to that Employment Tribunal to hear further evidence to review its decision in that way if such an application is made that is one for the Employment Tribunal to consider. The Employment Tribunal if it were to change its conclusion on the issue of liability for the 12 August would we anticipate then review its conclusion as to the amount of compensation. If it did not change its decision then the amount of compensation would no doubt stand.