Appeal No.	 EAT/1450/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 March 1999

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MR D J JENKINS MBE
MISS S M WILSON

MISS J SMITH	APPELLANT

ZENECA AGROCHEMICALS LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MISS OMAR
(of Counsel)
Messrs McCartneys
Solicitors
38 Broadway
Maidenhead
Berkshire	

	MR JUSTICE MORISON (PRESIDENT):	The purpose of this hearing is to determine whether there is an arguable point of law, in an appeal which Miss Smith wishes to advance against the unanimous decision of an Employment Tribunal held at reading on 13 and 14 July 1998.  That decision was reduced to writing and we would like to pay tribute to the Employment Tribunal for the clarity with which they have expressed themselves in this case.

	It was a sexual harassment case.  The complaint was brought both against the individual employee concerned and against the employers Zeneca (Agrochemicals) Ltd, part of a large enterprise.

	There was no doubt on the Tribunal’s findings that the individual had been guilty of sexual harassment in the respect set out in the Employment Tribunal’s decision, which do not need to be repeated. 

	The first issue which the Employment Tribunal had to deal with in relation to the employer having concluded that the sexual harassment occurred in the course of the employment was whether the company was entitled to the benefit of section 41(3) of the Sex Discrimination Act 1975.  

	It seems to us arguable that the conclusion of the Employment Tribunal, that it was difficult to see what else the company could have done to prevent the Second Respondents conduct towards the Applicant, is one which needs to be looked at by the Employment Appeal Tribunal on the basis of perversity effectively.  It was submitted to us that there were a number of steps that could and should have been taken in this case.  Such as preventing the Second Respondents from having management supervision over any female employee, in the light of the fact that he had been disciplined in 1990 and they had felt it necessary to take that course in 1995 in relation to another YTS employee.  Also the Tribunal had noted that in 1996, the individual concerned was seen to be behaving inappropriately with a female member of staff and was told that his conduct was inappropriate.

	Secondly, that he in the light of his previous known behaviour, should have been given retraining on matters of this kind.   Thirdly, that he might for example have been reviewed more frequently than he was and fourthly, possibly that the Applicant, herself, should have been counselled before she worked in this area with this individual and given an opportunity, if you like, a hot line, to raise any questions that she had thereafter about his treatment of her. Whether those  points are substantial or not, is not a matter for the Court at this time, that will be a judgment to be made only after the company have had an opportunity to  put in their answer to this appeal and to make representations to the Court.   What we are prepared to do is to say at this time, that the argument about section 41(3) deserves to be considered on a later occasion at an inter partes hearing.

	The second complaint that is made on this appeal, is that the Industrial Tribunal  have erred in their approach to the question as to whether the company itself may have aggravated the sexual harassment or been party to it, in the way in which they dealt with it after it had come expressly to their attention.    It is argued that the procedure which was followed did not accord with the procedure which was laid down in terms of timing, that it took too long, that the Applicant was required on more than once to repeat the nature of the complaints which she was making, which was an unfortunate way of going about things when dealing with a victim of harassment and thirdly that she had been deprived of an opportunity of representation through this process, which would have given her support.

	The Employment Tribunal took the view that this was not an issue which they should consider on the basis that it had not been previously raised in the originating application.  It is argued that the Tribunal’s conclusion on that point was erroneous in law, having regard to the discretion which they have in matters of this Industrial Tribunal.  Having regard to the fact as it was submitted to us that it was going to be necessary for the Tribunal to investigate the investigation as part of the complaint which she was making and that therefore, in a sense it was an integral part of her originating application, although not expressly referred to.  We regard that point as arguable and again assigned the cautionary note, that we do not by giving leave indicate the result.

	The third point which we also believe to be arguable relates to the circumstances in which the Appellant’s employment came to an end.  The circumstances are set out in the Tribunal’s decision, their conclusion is expressed at paragraph 34, but there are prior to that paragraph, various other relevant paragraphs including the explanation put forward by the company as to why it was that only very laterally, did they form the view that her post was no longer to exist.  It seems to us that this is again a perversity challenge that the conclusion of the Employment Tribunal having regard to the facts as found by them, was one that cannot be supported.

	There are various matters which the Court will wish to consider, such as, this is not intended to be a comprehensive, the fact that very recently before the termination of her employment to Human Resources were restating their commitment to assisting her to return to work.  She had been paying, as we understand it, pension contributions and that her fellow employees were expecting her to continue on in employment and that her leaving came as something as a surprise to them.  We think this is just arguable, but again wish to give no encouragement to the Appellant in relation to this point, because as I said at the outset of this judgment, this is a well-structured decision from this Industrial Tribunal.

	Accordingly, the matter will be allowed to proceed for a full hearing, we do not consider that notes of evidence are required, despite the fact that two aspects of this appeal are based on perversity.  It seems to us that the perversity argument is self-contained and does not require us to go beyond the fact of the decision itself.

	The Respondents have helpfully put in a PHD form, for which the Court is grateful.  It is to be noted that they do not seek notes of evidence themselves.  No time estimate has been given because it was their view that it was unlikely that we would give leave.  We estimate that this hearing will take all day, and that it should be listed as all these cases of discrimination should be in my view, as category A, which will ensure that it comes on for hearing before a High Court Judge sitting here.  Those are the only directions I give at this time.

	The Respondents I know are represented in one form or another, they will understand that this was an ex parte hearing and we are not in any way intending to foreclose any arguments that they may wish to raise at the full hearing of the appeal, or indeed expressing any views as to the likely outcome of the appeal in due course.