B v A C [2008] UKEAT 0505_07_1706

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0505_07_1706Case No Appeal No. UKEAT/0505/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
BAPPELLANTA CRESPONDENTS
Before
Mr Justice EliasDate 17 June 2008
[1]APPEARANCES For the Appellant, B. MR PAUL STEWART (of Counsel) Instructed by: Ian Poole Solicitor National Association of Head Teachers 1 Heath Square Boltro Road HAYWARDS HEATH West Sussex RH16 1BL For the First Respondent,a. A. No appearance or representation by or on behalf of the First Respondent For the Second Respondent, C. MS JANE CALLAN (of Counsel) Instructed by: Messrs Thompsons Solicitors St Nicholas Building St Nicholas Street NEWCASTLE-UPON-TYNE NE1 1TH SUMMARY HARASSMENT: Conduct JURISDICTIONAL POINTS: Extension of time: just and equitable C was found to have been the subject of sexual harassment. Over a period of years she had been bullied and coerced into participating in various sexual acts withb. B. The Tribunal found that B was liable, and that his employer (whom we shall call A) was vicariously liable for his conduct. B appealed on the grounds that the Tribunal had misdirected itself as to the proper approach to the evidence; and had unjustifiably treated allegedly distinct acts as part of a series in accordance with the ruling in Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96 and had wrongly extended time to allow proceedings to be taken against B. The EAT dismissed each of these grounds. THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT) This is an unusual case. The claimant (hereinafter "C") was a woman who was a teaching assistant at a special school. She alleged that the assistant head teacher (hereinafter "B") had sexually abused her over a period of some six years. The gravity of the allegations cannot be understated. The allegations included a series of sexual acts, including an incident of rape. The Tribunal found that the claims were sustained, and the first respondent, the Governing Body of the relevant school, was found vicariously liable. They do not seek to appeal that conclusion, assuming that B is in fact liable. They have not appeared before us today, but they are content for their position to be determined by the outcome of this appeal brought by B, the second respondent. The facts.[2]C started employment as a special teaching assistant on 6 January 1997. B had commenced employment in the same school much earlier, in 1983, and received a number of promotions, culminating in his appointment as Deputy Head in July 2002.[3]C worked 15 hours per week, originally on a temporary contract, but subsequently on a permanent one. She worked Tuesday to Thursday each week. C described herself as having a gregarious personality, which could be described as 'flirty'. The caretaker of the school alleged that at Christmas 2001 she told him that she thought that B was 'alright' and said words to the effect that she would not mind waking up in bed next to him. The Tribunal accepted that evidence.[4]In January 2001 C became ill and she was off work for some five months with stress. She claimed before the Tribunal that this stress was the result of being under threat of sexual harassment from B, but admitted in cross-examination that this was only a small part of her problem. For a period she was teaching at a different school, but she returned to the same school in June 2002. She went to a clinical psychologist in July 2003. The psychologist said that C had identified certain stress, resulting from bringing up two teenage sons and working with boys with behavioural problems. There is no record of any complaint being made to this person about any improper sexual behaviour.[5]Then in March 2004 she was seen by Dr Riley, a consultant psychiatrist. Again, although she recounted her rather sad personal history, there was no reference to these matters on which she now relies. Dr Riley diagnosed C as having a hypochondriac disorder, with superadded intermittent depression. However, he concluded that she did not have a major depressive disorder.[6]In June 2004 a physiotherapist in pain management reported that C had completed 9 pain work management programmes. C had felt that she was improving emotionally and physically, but anxiety levels were affected by the end of a long term relationship and the sudden loss of a close friend.[7]There was a further absence with work-related stress for 31 days in October/November 2004. On 30 September 2004 there was a staff meeting. C claimed that B had spoken to her in a rude and disrespectful way. B in turn said that C had behaved in a challenging way. Following that incident and a conversation with the Head Teacher, B began to log events concerning C. This involved keeping a record of any incidents, including as the tribunal found, trivial matters concerning C.[8]On 5 January 2005 C referred herself to the Education Stress Programme. She was seen by a registered psychotherapist. Initially she had seven sessions with this psychotherapist. She complained of feeling sexually harassed. Then in September 2005 she again made contact with the psychotherapist who records that C told her that she had an issue with a male teacher who was making sexual innuendos towards her.[9]There are similar entries in the psychotherapist's records for January and February 2006. It is recorded in the latter that C apparently said that she had been sexually harassed for nearly seven years and felt threatened and intimidated by him. Her claim was that B said he could make life difficult for her and that she could be dispensed with unless she was went along with his proposals.[10]She told another teacher in November 2005 that she was being sexually abused by B. That teacher reported matters to the Head Teacher. He spoke to B about the allegations and B denied them.[11]There was then a formal grievance raised by C on 3 March 2006, and the Head Teacher interviewed a number of witnesses. The effect of the grievance was that the Head Teacher felt he could not corroborate the allegations of sexual harassment and therefore dismissed the complaint.[12]C appealed and the recommendation made by that individual hearing the appeal was that the grievance be heard by the Hearing Committee of the Governing Body. Before that could be done, however, C had lodged her claim with the employment tribunal and the Governing Body chose to await the outcome of that hearing before taking any further action.[13]The complaint to the Tribunal rehearsed the grievance which had been lodged with the employers. It is not necessary to set out the grievance in full. It identified various acts of alleged sexual wrongdoing extending over seven years. These included demands for sexual favours sometimes up to three times a week for a number of months; acts of intimate sexual contact and masturbation; inappropriate remarks; requests to know more about C's sex life; and expressions of a desire to have sex. C's complaint was that she felt bullied and powerless to stop his advances.[14]In addition to these generalised allegations, C recounted in her grievance, and subsequently raised before the tribunal, a number of specific incidents. The most serious concerned a rape alleged to have taken place on the day that B's partner's mother was buried. Another was an incident in the Art Room when B is said to have acted inappropriately. A third occasion concerned an incident where C alleged that B had masturbated in front of her in the cupboard of the classroom of a colleague, LW. There was a specific occasion when C says that she was forced to have oral sex, and one when B went to her house and behaved inappropriately. She was then deeply upset by the incident at the staff meeting when she felt B had spoken to her in a very degrading and demeaning manner. She went off work at that point for work-related stress.[15]The Tribunal considered the evidence relating to these various allegations and incidents. B simply denied that any of these incidents took place.[16]First, there was the rape which allegedly took place on the day of B's partner's mother's funeral. This was the one time when any specific date was identified. Witnesses had been called in support of B's contention that he was not in school at all on that day. However, there were other independent witnesses who gave evidence to the effect that he was, and this was consistent with the school diary.[17]One of the witnesses was LW, the colleague who said that she remembered the day because it followed a night when she had experienced great pain because of toothache. Her evidence was that she was surprised to have seen B in the school in the morning. The Tribunal noted that C had claimed, when initially questioned, that the incident had happened when B had returned to school following the funeral. Later she said she could not recall what time of day it was. The Tribunal accepted that as genuine, particularly given that the relevant interview was more than three and a half years after the event.[18]Independent evidence was also given by RM, a former teacher, who said that on one occasion she went into the Staff Room when the lights were off and the window blind was drawn, and she had the very clear impression that a sexual act was taking place. The Tribunal accepted her evidence of what she had seen.[19]Third, there was the incident in LW's classroom. LW said that she saw C and B both together in the cupboard. The colleague, RM, also came into the room and LW told her what she had seen. B said that he could remember this incident and said that he was talking to C about concerns she had expressed about working with LW. The Tribunal noted that RM suspected, in the light of the circumstances, that there was a continuing affair between C and B.[20]The Tribunal directed itself by setting out the relevant law and then it made the following observation as regards the standard of proof:
"The standard of proof is a balance of probability. Per Ungoed-Thomas LJ in re Dellow's Will Trust [1964] 1 WLR 451 "
The more serious the allegation, the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it.""[21]One particular event which occurred, and which was heavily relied upon by B, related to the disclosure by C of a particular intake sheet which had been prepared by her psychotherapist. B's lawyers contended that C had deliberately sought to mislead them and the Tribunal by concealing information from part of the report. C submitted that there had been a mistake and she had not appreciated that this had been done. The Tribunal considered that C's explanation was implausible.[22]When it then came to analyse the evidence, the Tribunal very carefully set out their approach and the reasons why, notwithstanding certain defects in C's evidence, they found her the more credible witness. They also carefully considered each of the matters relied on by B which allegedly cast doubts on C's evidence:
"4.2 The second respondent's [i.e B's] case is that none of the matters set out in the claimant's grievance, which could amount to sexual harassment, occurred. The issue therefore, is whether we believe the claimant's version of events. Neither the claimant nor B suggested that there had been a willing consensual relationship taking place and in those circumstances it would be impermissible for the tribunal to rationalise the evidence on that basis. In looking at the evidence, we have borne in mind that there must be cogent evidence that the claims in the grievance are well founded. Cogent evidence means evidence that is clear, logical and convincing. 4.3 We were not satisfied about the claimant's explanation concerning the photocopying of the Intake sheet and this made us all the more cautious when deliberating about the truthfulness of the assertions she made in her grievance. It was suggested to us that the claimant's job application indicated that she had concealed information. Some of the boxes on the form were not ticked correctly, but we are satisfied that all relevant information had been disclosed and we draw no adverse inference from this. 4.4 We were asked to take into account the claimant's medical history. We note that she has been diagnosed with a psychiatric disorder, but there was no evidence before us that its symptoms might include a tendency to tell lies or to fantasise about events. 4.5 It was suggested to us that the allegations in the grievance arose following the claimant's being belittled by B in public in a staff meeting in September 2004. To manufacture allegations of this enormity as a reaction to such an event would be massively disproportionate and we cannot give credence to that assertion. Much was made of the claimant's statement in her grievance that she thought that B had more respect for her. It was suggested that this was incompatible with her allegations. We are satisfied that the claimant was referring to her understanding of B's respect for her as a teaching assistant. It was not a reference to his treatment of her in private. 4.6 It was suggested that LW and RM were both disaffected teachers and we should treat their evidence with caution. We were impressed by both of these witnesses. Their evidence had the ring of truth about it. LW faced very little cross examination. We are satisfied that there has been no collusion between the claimant and these other two teachers. 4.7 We were asked to draw inferences adverse to the claimant from her not disclosing the alleged harassment to the various therapists and psychiatrists when the abuse was alleged to be at its height. That therapy was in connection with pain management and the matters she disclosed to her psychiatrist were in response to questions. We recognise that a person's attitude and feelings about sexual abuse can be very complicated and not always rational. We find it entirely credible that the claimant was only able to come to terms with her embarrassment at having gone along with events after counselling from KD-H. 4.8 It was put to us that the alleged abuse described by the claimant lacked credibility. It was described as so intrinsically implausible that it could only be regarded as "a Big Lie"
. We accept that behaviour of this nature is not the norm and that because of this we have to look for cogent evidence of it before finding that it did occur. However, we are aware from our experience and training that sexual abuse of this nature can occur and that vulnerable women can be targeted for such treatment. 4.9 By its very nature sexual harassment is clandestine and corroboration will be hard to find. However, in this case there is some corroborative evidence. We accept RM's evidence that she saw the claimant and B engaged in a sexual act in the staff room. The evidence seriously undermines B's credibility in his assertion that there was never any sexual activity between him and the claimant. The evidence about the alleged incident in LW's room is not corroborative. It is merely evidence of opportunity. 4.10 We reject Mr B's alibi defence concerning the 11 June 2003. While there is no corroboration that the alleged rape took place, we are satisfied that both the claimant and B were at school for part of that day. That we have rejected B's alibi defence seriously undermines his credibility.[23]The Tribunal then identified other matters which caused them to doubt the credibility of B, including what they considered to be his unconvincing explanation for why he made notes about matters involving C, and concluded: 4.14 Having approached this matter with what we consider to be the appropriate degree of care and caution, we conclude that the claimant's evidence is cogent. There is corroboration from RM that the claimant and B were involved in sexual activity. We have more concerns over Mr B's credibility than that of the claimant. We are satisfied that on a balance of probability the events she complains about in her grievance did occur. The behaviour complained about was unwanted by the claimant. It was of a sexual nature and it had the effect of violating her dignity and creating an intimidating, hostile, degrading, humiliating and offensive environment for her."[24]The last two sentences essentially encapsulate the definition of harassment found in section 4A(1)(b) of the Sex Discrimination Act 1975. That is the definition applicable for acts post 1 October 2005. Prior to that date, acts of harassment fell within the normal concept of sex discrimination, but no-one has suggested that this has any materiality in this case. If the alleged acts took place, they were plainly unlawful acts of discrimination whenever they occurred. Procedural issues.[25]The Tribunal then considered two procedural matters. The case against the respondents had not been taken within three months of the last incident, as is required by section 76(1) of the 1975 Act. This occurred in January 2006 and the claim was lodged one day short of six months after that date. On the face of it, therefore, the claims against each was out of time. However, the Tribunal held that with respect to the employers, time was extended by three months by virtue of the operation of the disputes procedures: see regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 . Accordingly, that claim was just in time. That conclusion is not challenged in this appeal.[26]However, the tribunal accepted that the same principles do not apply to claims made against individual respondents. That was because of the effect of a ruling of the EAT (Lady Smith presiding) in Bisset v Martins and Castlehill Housing Association (UKEAT/0022/06), which was subsequently followed in Odoemelam v Whittington Hospital NHS Trust (UKEAT/0016/06) (Keith J presiding) and the Tribunal was bound by those decisions. (The conclusions in those cases have not been questioned in this appeal.)[27]In order for C to bring a claim against B, therefore, the Tribunal had to consider whether to extend time on the grounds that it was just and equitable to do so pursuant to section 76(5) of the 1976 Act. The Tribunal were asked to take this as a preliminary issue but did not do so. Having heard all the evidence, they held that it was just and equitable to extend time for the following reason (para 4.19):
"We have looked at the guidance in Keeble and the check list in the Limitation Act 1980. The most important consideration in this case, however, is the reason for the delay. The claim against the first respondent was in time, because the three month time limit was extended by three months by virtue of regulation 15 of the Dispute Resolution Regulations. Bisset and Odoemelam both postdate the lodging of the claim and are as yet unreported. It is fair to say that the construction of the law has produced a surprising result. We do not think the claimant could reasonably have been expected to know that the three month extension would not apply to the second respondent in circumstances when it clearly applied to the first respondent. To deny the claimant the right to pursue her claim against the second respondent in these circumstances would in our opinion be unjust. We, therefore, consider that it is just and equitable to consider the claim against the second respondent."
[28]Finally, it was also asserted that many of the incidents were outwith the three month time limit in any event. Whilst it was accepted that these incidents could be taken into account in assessing the merits of the claims that were in time, it was alleged by the respondents that they could not stand as independent acts of harassment. The Tribunal rejected this argument also. They held that the acts could be treated as a continuous act extending over a period within the meaning of section 76(6)(b) of the 1976 Act, relying on the well known decision of the Court of Appeal in Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96 .[29]The Tribunal summarised their conclusion as follows (para 4.15):
"Was the conduct a continuing act? We take into account that the acts did not take place continuously over 7 years. That, however, is not the test. The test is whether the acts are linked to one another and that they are evidence of a continuing discriminatory state of affairs covered by the concept of an act extending over a period. They clearly were. We agree with Mrs Callan that the circumstances of this case constitute the paradigm of a continuing act. The acts are all to be treated as having occurred on the date of the last incident which the parties agree was in January 2006."
The grounds of appeal.[30]There are appeals both against the substantive and procedural conclusions. We shall deal with the substantive issues first. Appeal against the substantive decision.[31]The first ground of appeal concerns paragraph 4.5 of the Tribunal decision. It is submitted that here the Tribunal made the very error that they sought to avoid. They ought to have directed themselves, following the judgment of Lord Nicholls Re H & Ors (minors) (Sexual Abuse: Standard of Proof) [1996] 1 AC 563 at 586, that the more serious the allegation, the less likely it is that the event occurred.[32]Although it is conceded that they did give themselves essentially that direction (by reference to the case of Re Dellows Will Trust which was in fact relied upon by Lord Nicholls in Re H ) it is submitted that in fact the Tribunal has misunderstood that test and stood it on its head. It is said that the Tribunal has effectively asserted in para.4.5 that because the allegations are so serious it is unlikely that they would be made up. In this connection it is submitted that the Tribunal nowhere weighed up, for example, the inherent unlikelihood of a male assistant head teacher criminally assaulting a female member of staff over seven years, given the danger to his employment, his career and his liberty, not to mention the relationship that he has with his partner.[33]Reliance is also placed by certain observations of mine in the case of AvB [2003] IRLR 405 when, giving the judgment of the EAT, I emphasised the need for a careful and conscientious investigation of the facts when serious allegations of criminal misbehaviour are made against an employee.[34]The second ground of appeal concerns paragraph 4.2 of the Tribunal decision. It is submitted that the Tribunal was wrong simply to reject the notion that there might have been a willing consensual relationship on the basis that neither party had sought to contend otherwise.[35]Mr Stewart, counsel for B, says that for the claimant's case to be made out, the Tribunal had to be satisfied that the conduct was unwanted and of a sexual nature. They could not simply ignore or refuse to address the possibility that there may have been a willing consensual relationship. Moreover, there was some evidence which would have supported a finding that the relationship was consensual for example, there was the fact the incidents went on for seven years and yet no complaint was made to anyone for most of that period; and the evidence from the caretaker, which we have recounted above, which is at least consistent with the view that matters might have developed on a consensual basis. Discussion and conclusions.[36]We would accept that if the direction had been along the lines that these allegations are so grievous and serious that they could not have been made up then that would manifestly be a fundamental misdirection by the Tribunal. Sadly, as anyone involved in cases of this kind in criminal law knows, allegations of this nature are sometimes fabricated, for all sorts of reasons.[37]However, we do not accept that it is a fair reading of the Tribunal's decision that they did make such an elementary mistake. The observations made in paragraph 4.5 were focusing on a specific argument advanced by B, namely that these matters were made up as a hostile response to the criticisms that B had made of C at the staff meeting.[38]As Mr Stewart rightly notes, it was not in fact for B to provide a motive as to why C may have concocted her story. However, he sought to provide a possible explanation, no doubt for good forensic reasons, as he was entitled to do, but in our judgment the Tribunal was equally entitled to be unconvinced by it, for the reasons they gave. We think that the Tribunal was entitled to say that it was not conceivable that after so many years of C and B working together this could be a credible explanation for such grave allegations.[39]This did not mean that the Tribunal simply accepted the allegations at face value; they in terms directed themselves that they should be able to identify cogent and, so far as possible, supporting evidence of the allegations (see paragraph 4.2). In our judgment the Tribunal were not, in paragraph 5.4, stating that such serious allegations could not be false. Indeed that would be inconsistent with the fact that much of their analysis explores the evidence which might support that conclusion. Furthermore, in that context the Tribunal did in terms specifically address B's submission that it was inherently unlikely that he would engage in conduct of this kind, given the potentially serious consequences (see paragraph 4.8 of the decision).[40]Moreover, the Tribunal did look carefully for confirmatory evidence in so far as they could find it. That was not altogether easy because, as they point out, by its nature conduct of this kind where it occurs is inevitably clandestine and usually involves only the two parties. The Tribunal did, however, identify certain instances where there had been witnesses who had formed the clear view that something untoward was going on, and in particular they focused on the day of the funeral, which was an important part of the evidence as far as B was concerned, in his attempt to demonstrate that the allegations were false. Once the Tribunal found that they did not accept B's evidence that he had not been in school on that day, that necessarily undermined his own testimony in a highly material way. Again, this careful appraisal of the evidence is inconsistent with the assertion that the Tribunal simply assumed that C must be telling the truth.[41]Similarly, with respect to the second ground, in the circumstances of this case we do not think that it was an error of law for the Tribunal to fail to explore the possibility that there was a consensual relationship in circumstances where neither side was seeking to advance that factual scenario. We would accept that if and to the extent that the Tribunal was asserting that as a matter of law it could never be permissible for a tribunal to find facts not advanced by either party, that would be an error.[42]As a matter of principle it is open to a tribunal, having heard all the evidence, to reach a conclusion on the facts which is inconsistent with the account advanced by either party: see, for example, the decision of the EAT in Judge v Crown Leisure Ltd UKEAT/443/04 (HH Judge McMullen QC presiding) which was upheld on this point by the Court of Appeal: see [2005] IRLR 823 . However, it is likely to be an exceptional case where this arises, and as the Court of Appeal noted in Judge , the parties should usually be given an opportunity to address the Tribunal on the legal implications of any such finding. We are not in fact persuaded that the Tribunal was seeking to state an absolute principle as opposed to making a decision as to how it would approach its task on the particular facts of the case.[43]We also accept Mr Stewart's submission that in order to determine that harassment had been established there must be evidence to justify a conclusion on the balance of probabilities that any sexual conduct was unwanted. However, that was plainly satisfied here; there was the detailed evidence of C to that effect. Indeed, it was the very heart of her case. There was some circumstantial evidence, some of which has been recounted above, which could lend some support to a possible conclusion that any relationship was consensual.[44]However, in our judgment, the Tribunal was entirely justified in taking the view that it could not properly make a finding of that nature in view of the evidence adduced by the parties. This is particularly so given that evidence from third parties who witnessed certain incidents, and which might appear to show that C was going along with certain sexual acts, was also entirely consistent with C's own account that she felt impelled to participate against her will because of B's threats and bullying.[45]We think that in the context of the facts of this case, the Tribunal was fully entitled to take the view that they could not properly reach a finding that any sexual relationship was consensual. The real issue they had to face was which party to believe; C alleged that unwanted sexual acts had occurred and B denied that any sexual impropriety had taken place. In the absence of very powerful evidence casting doubt on the question of consent - which is hardly likely to be forthcoming in this kind of case - a tribunal must be entitled to conclude that this is not an issue which should engage its attention.[46]Accordingly, even if the Tribunal did wrongly assume that they could not as a matter of law find that the relationship was consensual, we are wholly satisfied that this does not nullify their decision since the evidence here would not have begun to justify such a finding in the light of the case advanced by B and the fact that the Tribunal accepted the substance of C's evidence. The procedural issues.[47]Again there are two ground of appeal. The first relates to the finding of the Tribunal that it was just and equitable to extend time. Mr Stewart submits that there was simply no evidence at all to justify the Tribunal's conclusion that C could not reasonably have been expected to know that the three month extension would not apply to her case against B. He reminds us that it is exceptional to extend time and the onus is firmly on the claimant (see the observations of Auld LJ in Robertson v Bexley Community Centre [2003] IRLR 434 paragraph 25).[48]Moreover, the decision to exercise the discretion in favour of a claimant should only be done on the basis of proper evidence. In British Coal Corporation v Keeble [1997] IRLR 336 the EAT held that a tribunal had erred when determining whether or not to extend time on the basis of agreed facts. It was necessary that evidence should be heard[49]Both counsel agree that there was very little evidence about why C took proceedings so late. There was evidence that she did not want the case to go to a tribunal if there could be a satisfactory resolution of her grievance, and so she left matters until the last minute before taking proceedings. There was, however, no express evidence as to whether she knew that her claim against B was out of time or not. This was so notwithstanding the fact that C had been unambiguously alerted to the fact that B was taking this limitation point. C provided two witness statements but they barely touched on any evidence relevant to the question of extending time at all.[50]Mr Stewart submits that there was no proper basis for the Tribunal to reach the decision they did, and furthermore that it would now be inappropriate to refer the matter back to the Tribunal since C has already had a full opportunity to put her case on this issue and has failed to do so.[51]We see some force in this point, but ultimately we reject it. The evidence was that the claimant wished to leave matters to the last moment before putting in her claim. She successfully did that in relation to the claim against the school. As the Tribunal pointed out, at that stage no-one had suggested or anticipated that different principles might apply with respect to the individual.[52]In our judgment, it was legitimate for the Tribunal to infer that C assumed that the same rules would apply to both respondents simply because on the authorities at that time there was no reason to suppose that there were different time limits applicable. Accordingly, the Tribunal were entitled to determine the just and equitable extension on the basis that C reasonably thought that her claim was in time. Indeed, misapprehension of the law was expressly accepted to be a basis on which time could be extended in the Keeble case itself.[53]It would perhaps have been desirable for the tribunal to have identified each matter in the section 33 Limitation Act checklist, to which it made reference, but it was not an error of law for them to fail to do so. Moreover, in this case the issue of prejudice was not significant since B could have been required to give evidence with respect to the claim against the school in any event.[54]As to the Tribunal applying Hendricks , in our judgment they were entirely right to say this was a case par excellence where the principles enunciated in that case should apply. This was, to use the language adopted by Mummery LJ in that case, linked incidents which were evidence of a "continuing discriminatory state of affairs."[55]Mr Stewart put some weight on the fact that in Hendricks there were a number of managers involved in different incidents whereas here there was only one. In our view that strengthens the justification for applying the test rather than weakening it. He also submitted that the fact that C herself said that at times there was a lull when she hoped that the harassment had ended in some way demonstrated that there could not be a series of incidents constituting a continuing state of affairs.[56]We do not understand that submission. It seems to us that the issue is simply whether, looking with hindsight over the pattern of incidents, they can sensibly be said to have been connected in the way we have indicated. We have no doubt that the Tribunal was entitled to conclude that they were. Disposal.[57]The appeal fails and the issue of remedies must now be determined.[58]We would add that it is of the greatest importance when allegations of a potentially serious criminal nature are made, that every step is taken to ensure that the alleged wrongdoer has a full opportunity to defend himself or herself. B's lawyers were highly critical of certain steps taken by a different employment judge at earlier stages in the proceedings which could have compelled B to have advanced his case without a proper opportunity adequately to prepare his case. In the event, partly because of the C's co-operation, time was in fact made available and there can now be no complaint about the Tribunal's conduct on procedural grounds. Where allegations of this nature are made, tribunals must be particularly astute to ensure that any individual respondent has a fair trial.