Appeal No.	 EAT/998/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 May 1997

Before
THE HONOURABLE MR JUSTICE LINDSAY
MRS M E SUNDERLAND JP
MR A D TUFFIN CBE

MRS E HADDOCK (NOW CARTER)	APPELLANT

LUCAS EUI DIESEL SYSTEMS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR N BOOTH
(Of Counsel)

Mrs E Abberrahim
Citizens Advice Bureau
75-81 Eastgate Street
Gloucester
GL1  1PN	
For the Respondents	MISS H MOUNTFIELD
(Of Counsel)

Mr R Lowe
EEF Broadway House
Tothill Street
London
SW1H  9NQ	

		MR JUSTICE LINDSAY:   On 20 December 1995 Mrs Egdonia Haddock (now Mrs Carter) who is a lady of South American origin and whose first language is Spanish, lodged with the Industrial Tribunal her Originating Application Form IT1, and it claimed constructive/ unfair dismissal and sexual and general harassment.  It purports to be signed on 20 August 1995, which is very unlikely given that it was only received on 20 December 1995.

	In the box where brief details of the complainant’s complaint are set out, Mrs Haddock, in longhand (one would guess without real assistance) sets out the brief details of her complaint, which do not in fact include, so far as one can read them, victimisation.  Her employment ceased, we think, on 27 September 1995.  

	The employer responded with Form IT3 in the usual way.  The IT3 asserted that Mrs Haddock had not complained of sexual discrimination or sexual harassment and she had not complained either that comments made to her by her fellow employees amounted to sexual discrimination or sexual harassment.

	The Industrial Tribunal heard the matter under the Chairmanship of Mr A D Puttick on 6 and 7 June 1996.  Mrs Haddock gave evidence, as did five others who are described: Mrs L Simmons ex Human Resources Manager, Mr A Dolling, Supply and Development Engineer; Mr A Fish, Quality and Supplies Manager; Mr P Cook, Shift Leader and Ms A Parnell, Senior Personnel Officer.  So a fair number of witnesses give their evidence to the Industrial Tribunal.  

	The unanimous decision of the Tribunal was that Mrs Haddock’s claim was dismissed.  The appeal before us which is argued on Mrs Haddock’s behalf very persuasively by Mr Booth, is broadly divisible into two headings.  First, (although in fact he dealt with it second in argument) is what one might call “continuing sexual discrimination”.  The case put forward by Mrs Haddock is that the Industrial Tribunal did indeed find that she had been subjected to sexual discrimination before and on 4 February 1995.  In their paragraph 22 and 23 the Industrial Tribunal say this:
“The applicant complains of sexual harassment on 30 January 1995 by Mr Davies and Mr Dunn, which she says was dealt with by Mr Nott.  There has been no effective challenge to this evidence and the Tribunal finds that it happened, and that the incident amounted to sexual harassment.
The applicant complains that on 4 February 1995 Mr Dunn impeded her working on the assembly line.  On the balance of probabilities the Tribunal finds that this incident occurred and that it amounted to sexual harassment.  The Tribunal finds that Mr Dolling was a reliable witness.  He said that the applicant did not report this incident to him, and that is accepted by the Tribunal.”

	So there there is sexual harassment and discrimination down to and including 4 February 1995.  Mr Booth says, in effect, that it flys in the face of commonsense to suppose that discrimination against Mrs Haddock which manifestly had had a sexual basis down to 4 February 1995, thereafter changed its character so that it became non-sexual in its motivation.  He says that if that was to have been alleged and to have been accepted by the Industrial Tribunal then the employer really would have had to have called the three individuals, Mrs Haddock’s fellow employees - Mr Davies, Mr Dunn and Mr Spencer, who were responsible, as it was said, for that discrimination.  But it is to be noted, said Mr Booth, that those three individuals were not called by the employer.  He says it is not right to assume that the basis for the discrimination, which was sexual down to February 1995, did not have a continuing sexual basis.  He therefore moves on to say that the Industrial Tribunal’s conclusion that there was no sexual discrimination after 4 February 1995 was insupportable.  He says that one must, in particular, guard against the real possibility of unconscious sexual discrimination having continued throughout the period after 4 February 1995 and that it could only be, on the facts of this case, upon a cross-examination and examination in-chief of those three gentlemen, Davies, Dunn and Spencer, that the Industrial Tribunal could safely have concluded that there was no continuing or unconscious sexual discrimination after February 1995.
	The significance of those earlier dates down to 4 February 1995 is that the Industrial Tribunal find that the complaint as to that period were out of time and that it was not appropriate to extend time.  Hence there was no effective complaint as to those earlier times, but, as Mr Booth argued, one must realise that unconscious sexual discrimination is highly likely, particularly when actual sexual discrimination had earlier been proved in relation to an earlier period.  But that is by no means all that can be said on the subject.  The Industrial Tribunal found, à propos events after 4 February 1995, that Mrs Haddock had grossly exaggerated her evidence at some points.  One of her allegations was found to be, as it was called, inconceivable.  At paragraph 26 they say this:
“... We find that the applicant’s evidence with regard to the barrier comprising all but one of the male workers in her shift was grossly exaggerated ...”

The reference to “inconceivable” is in paragraph 28 where it is said:
“... If Mr Dunn had seen the applicant fall on 12 March 1995 and deliberately leave her on the work place floor, and this had been reported (as the applicant alleges) then it is inconceivable that it would not have been put in the accident book or reported to the Team Leader.”...

	Moreover, the Industrial Tribunal found that there is a stark contrast between Mrs Haddock’s evidence and the evidence of Mr Dolling and that Mr Dolling gave evidence on which the Tribunal could rely.  In paragraph 27 they say:
“... There is a stark contrast in the evidence of the applicant and that of Mrs Simmons and Mr Dolling.  The applicant says that she complained about sexual harassment; Mrs Simmons and Mr Dolling say that the only complaint made to them was that the applicant said she was not being trained.”

In paragraph 35, referring back to Mr Dolling the Industrial Tribunal said:
“... It [the Tribunal] can rely upon the evidence of the Team Leaders, Mr Dolling and Mr Cook, who were present on the workshop floor throughout most of the shift.”...

So there is Mr Dolling being described as a person whose evidence can be relied upon.
	Mr Cook was described as a witness who was reliable.  In paragraph 29 the Tribunal finds that Mr Cook was a reliable witness.  I earlier mentioned Ms Parnell, the Senior Personnel Officer: her evidence too is in terms described as accepted.  So there is a body of evidence given on the part of the employers which is believed, and, contrary to that, there is some, at least, of Mrs Haddock’s evidence which is found to be grossly exaggerated, or to be of events which the Industrial Tribunal found to be inconceivable, or which contrasted with evidence which they did accept from Mr Dolling. 

	Amongst the evidence given to the Tribunal was that of Mr Fisher, who I earlier described; he was the Quality and Supplies Manager.  He gave evidence as to an interview which he had had with the individuals who were personally directly liable or directly responsible for acts of a sexually discriminatory nature.  That evidence was accepted in paragraph 30, where the Industrial Tribunal say this:
“... Mr Fisher, together with Mr McClellan as a representative of the applicant, spoke to each of these individuals each of which [whom] admitted difficult working relationships with the applicant, but only on the ground that she was inflexible, not willing to “pull her weight”, and very slow to learn, and none of them liked training her.”...

	It was also accepted by the Industrial Tribunal, contrary to Mrs Haddock’s evidence, that Mr Cook had not shouted at her on 27 September 1995, which was an event which she had described as being the “last straw” that broke her back.  The Industrial Tribunal accepted that she had not complained of sexual harassment when she had been speaking to Ms Parnell, the Senior Personnel Officer.  It was accepted that Ms Parnell’s evidence was that Mrs Haddock had confirmed that she wanted her old job back and had not complained of sexual harassment or any discrimination based on her sex.  There was also the rather delphic evidence of Mrs Haddock herself at the Tribunal, where she said, as the Tribunal finds in paragraph 34:
“... I left because of the treatment of my fellow workers, it was not sexual harassment it was the discrimination, that discrimination was in January 1995 by Adrian Dunn”.
	The Industrial Tribunal held at paragraph 36:
“The Tribunal unanimously find that on the evidence presented it cannot come to the conclusion that the behaviour of the workforce, or any member of the workforce, after 4 February 1995 was gender based.  It concludes from the evidence that the reluctance of the three male operators to train the applicant was that she was both unwilling to learn, and slow to learn.  There is no doubt that the applicant was unpopular with her workmates, and that the treatment she suffered from some of her work colleagues was spiteful and vindictive.  But we cannot find that this treatment was gender based.
37	The Tribunal does find that the complaint against Mr Davies and Mr Dunn on 30 January 1995, and against Mr Dunn on 3 February 1995 were gender based.  The Tribunal cannot consider these complaints in isolation as the applicant has not made a claim within the time limits set down under s.76 of the 1975 Act, and it does not consider that an exception can be made under s.76(5) of the 1975 Act.”

	The Industrial Tribunal was aware of the difficulties that any applicant in this area is in.  They were aware that Davies, Dunn and Spencer had not given evidence.  It could be that, better advised, Mrs Haddock would have made application for the attendance of those three or that she would at least have threatened that if the employer had not undertaken to present them at the hearing that that would be sought.  

	It cannot be assumed that discrimination has an unchanging sexual basis merely because it began with a sexual basis, especially where, as here, the fellow employees concerned were advised and warned.  There was specific evidence before the Industrial Tribunal that the treatment of Mrs Haddock was caused not in relation or by reference to anything of a sexual nature but, as they held, because she had been inflexible, not willing to pull her weight, and so on.  She had been slow to learn and that no-one liked training her.  

	There is, of course, no rule that an Industrial Tribunal necessarily has to hear the direct evidence of individuals who have been responsible for the acts of discrimination.  It is often, of course, desirable that they should hear it, but there is no rule that such evidence has to be heard.  There was here, indirect evidence from Mr Fisher, of what reasons Mrs Haddock’s fellow employees had for treating her as they had.  It was, as it would seem, necessarily hearsay, but Miss Mountfield, on behalf of the employer, says that it is for the Industrial Tribunal to consider what weight it can put on such evidence, and here they did attach some weight to it and found as I have indicated.  

	It cannot be said, it seems to us, that the Industrial Tribunal had no material on which it could have concluded as it did.  In other words, this is really an attempt to disguise (although we do not use that term in any pejorative sense) what is basically a conclusion of fact and an argument of fact as if it were a point of law.  On this limb of the case, we find no error of law.  We find that the Industrial Tribunal did have material on which it could have come to the conclusion at which it arrived.  It is utterly immaterial for us to consider whether, had we heard the evidence, we would have come to the same conclusion.  That is all we need say on that first point of the case.

	The second part of the case could be labelled victimisation.  Here Mr Booth’s argument is that there is a finding, as we have already read, that the treatment of Mrs Haddock was not gender-based.  But, as he rightly points out, that in itself does not dispose of a claim for victimisation, because victimisation does not have to be gender-based.  Section 4(1) of the 1975 Act makes that plain and we see the force of the point that Mr Booth here makes.  But it does not, as it seems to us, of itself, go far enough.  One needs to look at the constituents of a victimisation case against an employer.  Assume here, in Mrs Haddock’s favour, for the purposes of argument, that she was treated less favourably in the circumstances than would other persons have been, then the series of questions that would then arise under the 1978 Act would begin by asking was it the employer who so treated her (or who is to be regarded by way of vicarious liability, for having so treated her) and then one has to ask a whole series of questions about whether Mrs Haddock was so treated by reason either of her having alleged that the employer or anyone else had committed a contravention of the Act, or by reason of the employer knowing that she intended so to allege, or by reason of the employer suspecting that she had or that she intended in that regard.  It is quite a series of questions that arises if one splits Section 4(1)(d) and the words thereafter and lays them out.

	Here there seems to have been no hint of evidence before the Industrial Tribunal that the employer had in mind that Mrs Haddock had, or would, or might complain of any contravention of the Act by the employer, at any rate in relation to anything after the initial complaints of January and February.  There were a series of complaints that were made.  She complained, for example, to Mrs Simmons and Mr Dolling in June 1995, but that was only that she was not being trained.  That appears in the passage I have already read from paragraph 27.  She did not complain to Mr Cook of harassment.  Paragraph 29 says:
“The Tribunal find that Mr Cook was a reliable witness.  He said that at no time had the applicant complained to him of any form of harassment.”...

	In September 1995 she spoke to Ms Parnell but there was no complaint of sexual harassment or sexual discrimination.  Paragraph 32 records:
“... She [Ms Parnell] has given evidence that at no time did the applicant complain of sexual harassment, or any discrimination based on her sex.  She confirmed that the applicant had telephoned the following week with regard to employment, but said that the applicant asked for her old job back with no change.  The Tribunal accepts her evidence.”

	Now, of course, is it true that there had indeed been sexual discrimination and complaint thereof in January and February 1995.  The Industrial Tribunal cannot be said not to have had victimisation in mind because they expressly read parts of Section 4.  They read out the whole of Section 4(1)(d) of the Act and in their concluding paragraph they say:
“It [the Tribunal] does not find that the treatment suffered by the applicant after 3 February 1995 falls within s.1 or s.4 or s.6 of the 1975 Act.”
It was with a view to that that the claim was dismissed.

	It would plainly be, or have been, better and far clearer, if the Industrial Tribunal had dealt with victimisation more fully than they did, but it cannot be said that they did not have Section 4 in mind for the reasons that we have just given.  They set out the section and they specifically reject it.  Mr Booth makes an argument of the familiar kind based on cases such as Glynwed and Meek vCity of Birmingham that the matter here is not sufficiently set out to enable the loser to know precisely why she has lost and that the reasoning of the Industrial Tribunal is not sufficiently set out.  But why her fellows continued to treat her poorly is held by the Industrial Tribunal not to be attributable to anything, as it seems, that is referable to her having made or being likely to make claims of breaches of the Act, but, going back to what was found by the Tribunal, because she was inflexible, not pulling her weight and slow to learn and so on.  That was what seems to have generated the unpleasant behaviour that was directed to her.  

	There appears to have been no evidence to support a claim in victimisation, and, moreover, there was evidence which countered it in that she did not herself make complaints of that nature. She did make complaints but they were found to be of another kind, as the references to Mrs Simmons, Mr Dolling, Mr Cook and Ms Parnell make clear.  Section 4 of the Act was specifically rejected by the Industrial Tribunal.  It may be to some extent that the failure more fully to deal with victimisation was something that Mrs Haddock brought upon her own head, because it will be remembered that her IT1 in fact made no mention of it.  To some extent that may excuse a treatment of the point less full than otherwise it might have been on the part of the Industrial Tribunal in their Extended Reasons.  She left the employment on 27 September 1995.  She did not get her IT1 into the hands of the Industrial Tribunal until 20 December 1995.  Whether that was a delay caused by her ignorance of the law or by hesitation, one cannot be sure: nor is it clear, if there was delay, what reason there might have been for the delay, but it would certainly be open to the employer to say, given that long delay before complaint and after she had left employment, that it is rather a lot to expect of the employer to attribute to him a Section 4(1)(d) case of anticipation or expectation or suspicion of relevant complaint under the Act or of offences under the Act. 

	All in all, even leaving aside the question which I think one could probably assume in Mrs Haddock’s favour (namely that if there was victimisation here, it was victimisation of a character that could be attributed to the employer by way of vicarious liability) even so, given that Section 4 was specifically cited by the Industrial Tribunal and was specifically rejected, given that the Section 4 complaint seems to have had no evidence to support it and given also that there was evidence which would tend to reject it or dispose of it, it cannot, in our view, be said that the reasoning of the Industrial Tribunal was so insufficiently stated that there is here a case of such inadequacy in the Extended Reasons as to amount to error of law.  It seems to us that the victimisation claim was treated by the Industrial Tribunal as a claim, which, in effect, failed to get off the ground and, to that extent, their relatively scanty treatment of it can be excused.  We do not feel able to identify the shortcomings in their dealings with the victimisation claim as so marked as to amount to an error of law.  We revert to the obvious points that we are only a Tribunal dealing with points of law, that the Industrial Tribunal over two days heard a number of witnesses and formed views of those witnesses and in many instances preferred the evidence of the employer’s side to that of Mrs Haddock; and came to conclusions which it cannot be said a properly-instructed Tribunal could not have reached.  Accordingly we dismiss the appeal.