MRS J LOVE v ALEXANDER LE SKERNE LTD [2007] UKEAT 0506_06_1604

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2007] UKEAT 0506_06_1604Case No Appeal No. UKEAT/0506/06Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS J LOVEAPPELLANTALEXANDER LE SKERNE LTDRESPONDENT
Before
His Honour Judge BirtlesSir A Graham Kbe Mr D J JenkinsDate 16 April 2007
[1]APPEARANCES For the Appellant MR GARY HODKINSON Solicitor Citizens Advice Bureau Specialist Support Unit The Development Centre Coxwell Avenue Wolverhampton Science Park Wolverhampton WV10 9RT For the Respondent MR TIM DONNELLY (Of Counsel) Instructed by: Messrs Blackett Hart & Pratt Solicitors Eldon Chambers 23 The Quayside Newcastle upon Tyne NE1 3DE SUMMARY Sexual harassment ET failed to consider S.4A(1)(b) and (2) of Race Discrimination Act 1976. EAT held(1) ET had found all relevant facts in relation to sexual harassment claim(2) Kumchyk v Derby City Council [1978] ICR 116 did not apply as sexual harassment was not a new point. Case remitted to same Employment Tribunal to consider S.4A(1)(b) and (2) on the facts already found by it. HIS HONOUR JUDGE BIRTLES Judgment Introduction This is an Appeal by Mrs J A Love from the Decision of an Employment Tribunal sitting in Newcastle upon Tyne on 5 June 2006. The unanimous judgment of the Employment Tribunal was that Mrs Love's claims of unlawful sex discrimination and constructive dismissal were not well founded and were dismissed. The written reasons for the Employment Tribunal's judgment were sent to the parties and entered in the Register on 24 July 2006.[2]Before us the Appellant has been represented by Mr Gary Hodkinson who is a solicitor from the Citizens Advice Specialist Support Unit and the Respondent by Tim Donnelly of Counsel. We are grateful to both of them for their skeleton arguments and oral submissions. The Employment Tribunal Reasons: The Facts[3]The Employment Tribunal found the following facts at paragraphs 3 – 11 of its Reasons. They said this:
"3 The respondent employs some 49 staff. It has an equal opportunities policy. At the time that Mr Love ceased to be its employee the respondent employed about 14 women. Mrs Love was employed from 7 July 2003 until 15 November 2005 when she resigned. When she first started work for the respondent she worked in the cleaning bay and then moved from there to work in the office in either, she says May 2005, or as Mr Brendan Alexander says, August 2005. Her job was to set up in the vans the equipment to be used for various jobs that the company was doing making sure that the right equipment was on a particular van going to a particular job. She was provided with a work sheet which was prepared by Mr Brendan Alexander for that purpose. 4 She came into contact, when she moved up to the office and towards the latter part of her employment, with Mr Paul Alexander. He is a Director of the company and a co-founder of the company with his brother Mr Eric Alexander. Mr Paul Alexander is described as a colourful character. It is accepted that he swears a lot. He uses profanities in everyday speech as most people would use adjectives. He uses bad language equally towards men and women. It is accepted that on at least three occasions Mr Alexander did use profanities in the presence of Mrs Love. The first one she complains about is on 1 June 2005. Mrs Love had agreed to ferry Mr Alexander and others to a Masonic meeting. She was being directed to the Masonic lodge by Mr Alexander but took the wrong turning and had to go twice round a roundabout. She says that she was called a 'stupid fucking cow' by Mr Alexander, he says that he did not use the word 'stupid cow' he did say something to the words of what's fucking happening here Jean (Mrs Love's forename)'. 5 The second occasion was on 26 October 2005. Some steps, which had been hired by the company had gone missing. They had been placed in an articulated lorry. Because of the continuing cost of hiring the steps Mr Paul Alexander had demanded to know where they were and enforced his query by swearing at Mrs Love. Again, Mrs Love says Mr Alexander called her a 'fucking stupid cow'. He denies that he said these words, although he does not deny swearing at her. 6 A further occasion Mrs Love gives is when she was asked to go to the cafe to get a pie for Mr Brendan Alexander. She had forgotten exactly what type of pie he wanted and so asked him which one he wanted. Mr Paul Alexander again swore at her and she says called her a 'stupid cow' using the other expletive that he always seems to use. Mr Alexander denies the use of stupid cow. 7 Mr Alexander says that there was a further incident in a car being driven by Mrs Love to a Masonic meeting. The other person in the car, who has not been called to give evidence, said referring to Mr Alexander 'he is a hard man to work for' and Mr Alexander's reply was 'you'd better fucking believe it'. 8 Mr Alexander, therefore, accepts that he did swear. He accepts that he swears constantly at everybody else who might be in the vicinity, it does not matter whether it is a man or woman. 9 Things came to a head on 15 November 2005. Mrs Love had, by agreement with the respondent, taken an employee to Bishop Auckland in her own car. She had then been due to return. She was expected to return to the office by about 9.00am. When she had not Mr Brendan Alexander telephoned her on her mobile phone. She told him that she was stuck in traffic. He became suspicious he could not hear any traffic noise. He asked her to sound her horn to prove that she was in the car. Mrs Love then admitted she was not in the car at all, she was at home. She then came into work. Mr Alexander said that he wanted to see her and, in the presence of Mr Brown, said that he was going to have a meeting with her later that day which was to be a disciplinary meeting, to determine what action should be taken. He was not given that opportunity to hold the meeting as Mrs Love then, verbally, resigned from her employment and left the respondent's offices. 10 Mr Love was asked for a letter of resignation. She brought the letter of resignation into the office on 18 November 2005, it is reproduced at page 57 of the bundle and it says: "
I am writing to you to tell you why I walked out on Wednesday, I thought you were looking for a reason to get rid of me. I thought you were going to sack me for lying to you so I thought I would get in first and walk out. I know I was stupid but there is nothing I can do about it now. I always thought that you thought I was inadequate to do the job I was doing. All I can say now is that I'm sorry as I really enjoyed working for you." 11 Mrs Love then, having taken advice, sent a letter of grievance which is at page 58 in which she raises the use of the word by Mr Paul Alexander of calling her a 'stupid fucking cow'. Nothing came of the grievance as there was no meeting arranged. Mrs Love did ask Mr Brendan Alexander, on one occasion, whether she could have her job back and had also, through another employee, asked for her job back." Employment Tribunal Reasons: Submissions and Law[4]These are set out in paragraphs 12 (Submissions) and 13 - 17 (Law) of the Employment Tribunal's Reasons. We do not set them out here but we note that in none of these paragraphs is there any reference to Section 4A of the Sex Discrimination Act 1975. Employment Tribunal Reasons: Conclusions[5]These are set out in paragraphs 18 – 19 of the Reasons where the Employment Tribunal say this: 18 Mr Paul Alexander uses profanities in his everyday language. The evidence is that he used such language in front of Mrs Love that he admits. He does not admit that he used the words 'stupid cow'. It is also accepted that he used such language in front of other employees of the company, and presumably, in his everyday life. He speaks that way to everybody that he comes across. Mr Alexander agrees that on the occasions stated in the facts he did use profanities whilst Mrs Love was present. We have to be satisfied that the use by Mr Alexander of profanities were directed at Mrs Love because of her gender and that she was treated differently and less favourably on account of her gender. We come to the conclusion that Mr Alexander would use those words in front of anybody who happened to be in his presence. We do not find as a fact that the word cow was used. Mrs Love has not shown on the balance of probability that word was used. We consider that Mrs Love has not shown the proof that is needed to found a claim of sex discrimination and we must dismiss her claim. 19 As far as the unfair dismissal is concerned, we have to find a fundamental breach of contract. It cannot, following our finding on sex discrimination, be the sex discrimination, which of itself, would be a fundamental breach of contract. There has to be something else. The letter of resignation pre-empting what Miss Love, thought was going to happen at the disciplinary hearing, that is, that she was going to be dismissed. It may have been that there was shouting and swearing but she does not mention so in her resignation letter. She was referring directly to the fact that she had told a lie, which she admits, that she was in traffic when she was actually at home .Mrs Love did ask on two occasions, for her job back. If it was such a fundamental breach and she could not work for this respondent any longer , it would seem strange that she applies for her job back on two occasions. We cannot find that there was a breach of contract and, therefore, dismiss that claim as well. The respondent was entitled to hold a disciplinary hearing on the admitted lie by Mrs Love, The Notice of Appeal[6]The Notice of Appeal appears at pages 7 – 11 of the Employment Appeal Tribunal Bundle and there is a Respondent's Answer at paragraphs 11 – 13 of the Employment Appeal Tribunal Bundle. However, in his oral submissions Mr Hodkinson simplified his submissions and it became clear that there were now four issues to be decided by the Employment Appeal Tribunal. Employment Appeal Tribunal Decision Issue 1: Did the Employment Tribunal consider the Application of Section 4A(1)(b) of the Sex Discrimination Act 1975?[7]Section 4(A)(1)(2) provides as follows:
"[4A Harassment, including sexual harassment (1) For the purposes of this Act, a person subjects a woman to harassment if- (a) on the ground of her sex, he engages in unwanted conduct that has the purpose or effect- (i) of violating her dignity, or (ii) of creating an intimidating, hostile, degrading, humiliating or offensive environment for her, (b) he engages in any form of unwanted verbal, non-verbal or physical conduct of a sexual nature that has the purpose or effect – (i) of violating her dignity, or (ii) of creating an intimidating, hostile, degrading, humiliating or offensive environment for her, or (c) on the ground of the rejection of or submission to unwanted conduct of a kind mentioned in paragraph (a) or (b), he treats her less favourably than he would treat her had she not rejected, or submitted to, the conduct (2) Conduct shall be regarded as having the effect mentioned in sub-paragraph (i) or (ii) of subsection (1)(a) or (b) only if, having regard to all the circumstances, including particular the perception of the woman, it should reasonably be considered as having that effect."
[8]Both parties agree that the Employment Tribunal did not consider Section 4A. Issue 2: Were all relevant facts concerning sexual harassment before the Tribunal?[9]Mr Hodkinson submits that all relevant findings of fact were made which are not contested in this appeal. They were:(1) That on at least three occasions starting with 1 June 2005 Mr Paul Alexander used profanities in the presence of the Appellant: Reasons paragraph 4: EAT Bundle Page 3;(2) The second occasion was on 26 October 2005: Reasons paragraph 5: EAT Bundle Page 3;(3) There was a third occasion that the Tribunal did not date when Mr Paul Alexander swore at the Appellant "using the other expletive that he always seems to use" ("fucking"): Reasons paragraphs 6: EAT Bundle page 3;(4) There was a further occasion admitted by Mr Paul Alexander where profanities are used in the Appellant's presence but not directed at her: Reasons paragraph 7:EAT: Bundle page 3.[10]Mr Donnelly submits that the Appellant did not raise or actively pursue the allegation of sexual harassment at the Employment Tribunal and relies upon her form ET1. However, in our judgment the Employment Tribunal have made extensive findings of fact in this case which clearly covered all of these specific allegations of obscene language used by Mr Paul Alexander either against her or in her presence and second, the Employment Tribunal's reasons make it quite clear that they were considering the question of sex discrimination by the use of the language which he had found had taken place: Reasons paragraphs 13 – 15 and 18. In our judgment all of the material was there upon which the Employment Tribunal could have made a finding on the application of Section 4A if it had considered that statutory provision at all. Issue 3: Was sexual harassment raised at the Employment Tribunal or is it a new point?[11]For the reasons we have already given we think that is clear that the Employment Tribunal clearly had sexual harassment in mind for three reasons. First, it made specific findings of fact in relation to the use of obscene language by Mr Paul Alexander either directed against the Appellant or made in her presence. Second, the Employment Tribunal referred to Brumfitt v Ministry of Defence [2005] IRLR 4 which also had at its core allegations of obscene language directed at and made in the presence of the Appellant. In that case the Appellant failed but specific reference was made to the forthcoming implementation of EU Directive 2002/73/EC in October 2005 (in fact 1 October 2005). That EU Directive radically changes the definition of sexual harassment and was itself implemented in UK domestic law by Section 4A of the Sex Discrimination Act 1975 which came into force on 1 October 2005. Third, the conclusion of the Employment Tribunal in paragraph 18 of its decision makes it quite clear that the Employment Tribunal was looking at the issue of sexual harassment by the use of the obscene language used by Mr Paul Alexander and directed at the Appellant or made in her presence.[12]We deal with the issue in this way because of Mr Donnelly's submission that we should not exercise our discretion to allow a new point to be raised on appeal. Mr Donnelly says that that discretion should only be exercised in exceptional circumstances and for compelling reasons: Glennie v Independent Magazines (UK) Limited [1999] IRLR 719 ; Jones v Governing Body of Burdett Coutts School [1998] IRLR 521 .[13]In our judgment both of those decisions are distinguishable. In Glennie the Court of Appeal held that the Employment Appeal Tribunal was wrong to exercise its discretion to raise a new point of law relating to the effective date of termination of her employment in circumstances in which the question of her effective date of termination had been determined on a preliminary jurisdiction issue on the basis on which the Applicant, represented by solicitors, had placed her application before the Employment Tribunal. In Jones the Court of Appeal again held that the Employment Appeal Tribunal was wrong to exercise its discretion to allow the employee to amend his Notice of Appeal so as to entertain a point of law which had been conceded by his representative before the Employment Tribunal.[14]In both cases the Court of Appeal made it clear that the Employment Appeal Tribunal should follow and apply the general rule laid down by Arnold J in Kumchyk v Derby City Council [1978] ICR 116 that a party should not be allowed to resile from what her representative had decided to do.[15]In our judgment Kumchyk does not apply to the present case because(a) the ET1 makes it clear that there is an allegation of sex discrimination: Employment Appeal Tribunal Bundle page 24. We note that there was no specific place on the form ET1 for an allegation of sexual harassment. The appropriate parts of the form simply refer to discrimination: EAT Bundle pages 19 and 24;(b) the Respondent clearly thought that an allegation of sex discrimination had been raised albeit that it was unclear about the basis for such a claim: EAT Bundle page 34;(c) the Employment Tribunal clearly thought that the allegations of sex discrimination was one of sexual harassment both in its findings of fact and in its conclusion to which we have already referred. Conclusion[16]For these reasons we allow the appeal and remit the case to the same Employment Tribunal for consideration of Section 4A in the light of the facts found by it and this judgment. We have considered Mr Hodkinson's submission that we should remit the case to a fresh Employment Tribunal. We have borne in mind what Burton J said in Sinclair Roche & Temperley v Heard [2004] IRLR 763 at paragraph 46. However, in our judgment it would be quite disproportionate for this case to be remitted to a fresh Tribunal to hear all of the facts again when this Tribunal heard of all those facts and made an error of law by failing to consider the application of Section 4A(1)(b) of the Sex Discrimination Act 1975 to the facts as found by it. We have no doubt that this Tribunal can carry out that exercise fairly and justly.