Appeal No.	 EAT/244/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 23 April 1999

Before
THE HONOURABLE MR JUSTICE MORISON (P)
LORD GLADWIN OF CLEE CBE JP
MR R N STRAKER

MS E COYNE	APPELLANT

THE HOME OFFICE	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR C HUTCHINSON
(OF COUNSEL)
(Instructed By)
Messrs Christian Fisher
Solicitors
42 Museum Streemployment Tribunal
Bloomsbury
London 
WC1A 1LY
	
For the Respondent	MR T BRENNAN
(OF COUNSEL)
(Instructed By)
The Treasury Solicitors
Queen Anne's Chambers
28 Broadway
London 
SW1H 9JS

	THE HONOURABLE MR JUSTICE MORISON (PRESIDENT):	We are able to give a decision in this case and give a judgment.  Where I give an ex temporary in these circumstances, I reserve to myself the right to add to, alter, vary or otherwise generally try and improve the language with which I seek to express this decision.

	Miss Coyne was employed by the Home Office.  She worked at Holloway Prison - a demanding post.  She worked with others who were employed by the relevant Local Education Authority and was on a day-to-day basis supervised by the Education Officer of the Local Authority, although formally and contractually, as a result of her employment relationship with the Home Office, her proper line manager was a Mr Julian of the Home Office.

	During the course of her employment she was subjected to two particular identified acts of sexual harassment.  By sexual harassment we mean, discrimination against her on gender specific grounds.  Those acts are referred to in detail in the Tribunal’s decision at para 14 and there is no need to recite that paragraph in this judgment.  The immediate reaction of her de facto line manager, Mr Brown, was that it was her fault that those incidents had taken place.  She made a complaint to her employers and it fell to Mr Julian to deal with it.  One of the complaints she made related to the two acts of sexual harassment to which we have referred.

	Having, in a very detailed decision, dealt with the various complaints which Miss Coyne has made, the Tribunal in paras 54-58 upheld her complaint of unlawful discrimination on grounds of sex brought against the Home Office in relation to the way they investigated or failed to investigate the complaints of sexual harassment.  

	It will be necessary for this judgment that paras 54-58 are reproduced in it, although I will not read them now.

“THE CONCLUSIONS OF THE TRIBUNAL
54.	In the bundle of documents, at page 208, is a copy of the message sent out to all Home Office staff, and setting out the Home Office view on equal opportunities and discrimination.  Annexed to it is an “action check list” for line managers.  Item 10 on that check list states:
	“Do you deal promptly and thoroughly, taking advice as necessary, with any complaints of discrimination or harassment or with any offensive behaviour such as racist or sexist jokes, posters or comments?”
Also attached to that policy statement is an action check list for all members of staff, which states at paragraph 4:
	“Make clear your opposition to any harassment or discrimination which you may see around you and if necessary report it to your line manager”:  page 212
The July 1991 policy statement of equal opportunities in the Home Office is set out at pages 213 and following, and at page 217 we find the following statement:
	“It is the Department’s policy to act swiftly in response to any complaint of this kind of misconduct (harassment or discrimination) and to seek to ensure that there is no recurrence.  It is the responsibility of line management in the first instance to ensure that conduct of this kind does not occur, or, if does occur, to take promote action to stop it.  It is open to staff to pursue any complaint under the terms of the grievance procedure and to request a formal written explanation of any treatment which they believe constitutes discrimination or harassment.  All such complaints are treated in strict confidence and handled as matters or urgency and sensitivity.”
55.	We accept the statements of policy which we have quoted as representing good practice.  They certainly represent the practice and procedure to which the Applicant was entitled.  She made a complaint of discrimination on the grounds of sex, constituted by an act of harassment.  That was a detriment to which she was subjected by persons with whom she worked.  She was then, in our view, subjected to a detriment by the way in which that complaint was treated.
	(i)	Firstly, the incident was treated as being her fault, not only by Mr Brown 	but also by Mr Julian.
	(ii)	The complaint was not dealt with promptly.  There was a delay of nearly two years.
	(iii)	Although Mr Benson’s report was in many ways forthright and well-balanced in its criticism of what occurred at the Prison in relation to Miss Coyne, that comment cannot be made of the way in which he determined her complaint of sexual harassment.  He stated simply:
			“Both the EO and the then acting DEO firmly refute the allegation in paragraph 6.  From my experience of Mr Brown (and from my brief acquaintance with Mr Toman) I would judge that the behaviour which she alleges would be totally out of character.”
56.	In our view, that was a biased attitude to adopt.  If he held that strong a personal view about Mr Brown and Mr Toman, he should have passed that aspect of the enquiry to someone else.  It does not reflect an independent adjudication of her complaint.
57.	In our judgment, the detriment to which Miss Coyne was subjected by the treatment given to her complaint of sexual harassment was directly related to, and part of the detriment constituted by the harassment.  Applying the legal principles which we have set out earlier in these reasons, it appears to us that there is no material difference between a failure to prevent harassment occurring and a failure to deal properly with a complaint of sexual harassment, since the natural consequence of a failure to deal with a complaint will be a risk of continuation of the same conduct.  The same considerations apply to a treatment of the complaint which proceeds on the basis that the fault must lie on the part of the victim rather than the person harassing the victim.
58.	Therefore, for the reasons we have set out, we find the complaint of discrimination on the grounds of sex well-founded on the limited basis of the treatment of Miss Coyne’s complaint of sexual harassment.

	The Tribunal were clearly troubled by the conclusion that Mr Julian, as with Mr Brown, had taken the view that the acts of sexual harassment had been her fault and, as we understand these paragraphs, they are indicating that it was that view which led him not to carry out a timeous and proper investigation of the complaints which had been brought to his attention.

	In para 57 of their decision, it is not entirely clear on what basis the Employment Tribunal had concluded that the Home Office were liable on the limited basis which they refer to in para 58, namely that they had unlawfully discriminated against Miss Coyne by reason of their failure properly to investigate her complaints of sexual harassment.  

	On one view of para 57, “by reason of their failure properly to investigate her complaints of sexual harassment” the Employment Tribunal were seeking to apply a decision of the Employment Appeal Tribunal in the well-known case of Burton -v- De Vere [1997] ICR p.1.  The facts of the case may be summarised in this way.  There were some catering staff in the employment of De Vere Hotels Limited who were exposed to offensive and inappropriate remarks by a comedian who was doing the cabaret act.  The things that were said and done by the comedian and subsequently, by others, no doubt encouraged by what the comedian had said, caused a number of them to be extremely upset.  They made a complaint against their employers who defended the case on the basis that they were not in law responsible for what the comedian had said.  

	The Employment Appeal Tribunal gave judgment in the case intending to give guidance to Tribunals who might, in future, be confronted with the question as to the circumstances in which an employer becomes liable for acts of unlawful discrimination done by third parties for whom legally, they are not responsible.  What the Tribunal said is to be found at p.10 of the report between A-B:

“An Employer subjects an Employee to the detriment of racial harassment if he causes or permits the racial harassment to occur in circumstances in which he can control whether it happens or not.”

	Further on, they said this:

“We think that the question of whether an Employer has subjected his Employee to racial harassment where a third party is primarily responsible for the harassment should be decided by the Tribunal in its capacity as an Industrial Jury, the Tribunal should ask themselves whether the event in question was something which was sufficiently under the control of the Employer that he could, by the application of good employment practice, have prevented the harassment or reduced the extent of it, is such is their finding then the Employer has subjected the Employee to the harassment.”

	As we read this passage it is clear that the Employment Appeal Tribunal was there considering the extent to which De Vere Hotels Ltd could be held responsible for the injury to their staff caused by the Third Party comedian.  What emerged was that the management at the hotel should have warned his assistant manager to withdraw the young waitresses if things became unpleasant.  He did not do so because that thought had not occurred to him.  The Employment Appeal Tribunal said he should have done so; that if the assistants had been properly instructed by the manager, then “these two young women would not have suffered any harassment.  They might possibly have heard a few offensive words before they were withdrawn, but that would have been all.”  It follows that the Employment Appeal Tribunal was concerned with the responsibility of an Employer for a detrimental event which was gender or race specific.  They were saying that if the Employer is in control of the occasion so that it could be said that the Employer could have prevented or reduced the extent of the unlawful harassment then the Employer cannot complain if he is taken to an Employment Tribunal by his Employees. 

	In para 57 of the Tribunal’s decision, it would appear that the Employment Tribunal was seeking to apply the ratio of that judgment to the facts of this case.  It seems to us if they were doing so that that would have been an error of law for the reasons outlined by Mr Brennan in his able submission to us.  Mr Brennan points outs that there is a distinction between the facts of this case and that in Burton which displaces the Burton principle.  In this case, the question is not directed to the responsibility of the Home Office for the commission of an act which they could have prevented.  This case is concerned with the responsibility of the Home Office for the consequences of acts which have already occurred.  Accordingly, the principle in Burton does not apply.  What the Tribunal should have been asking itself was “What was the detriment alleged against the Home Office?”  The answer is “It was their failure to carry out a proper investigation of the complaint of sexual harassment that had been made” and the next enquiry was whether that had been caused by the gender or sex of the complainant.  There may be many reasons why an Employer fails to carry out a proper investigation and in each case, the question at issue will be whether the Tribunal can infer that the sex of the complainant was the reason for the non-investigation.  It was not sufficient for them to say as they did: 

“Applying the legal principles which we have set out earlier in these reasons it appears to us that there is no material difference between a failure to prevent harassment occurring and a failure to deal properly with a complaint of sexual harassment since the natural consequence of a failure to deal with a complaint will be a risk of continuation of the same conduct”.

	The detriment which continues from the harassment is not caused by the failure to carry out a proper investigation.  The detriment that is caused by failure to carry out a proper investigation may well be the risk of a repetition of the same conduct which, if it occurred, might make the Employer liable under the Burton principle and that the damage sustained by the individual will be increased as a result of failure to put an end to the incident and give the victim proper support.  It seems to us that his submission that there is a logical problem with this part of the Tribunal’s decision, is correct.  It would appear that they have failed directly in that sentence to ask themselves whether the failure to carry out an investigation was based on the gender of the complainant or was contributed to by her gender.  In other words, whether she suffered less favourable treatment on the grounds of her sex.  

	However, we do not consider that that was the only basis for the Tribunal’s decision because looking at the whole of paragraphs 54 through to 58, it seems to us that they were in fact, also deciding that the reason why the complaint of sexual harassment was not investigated was because Mr Julian of the Home Office regarded the incidents of sexual harassment as having been the fault of the victim.  There was, in the Tribunal’s view, a biased attitude within the Home Office in the Benson report in particular.  They noted that the treatment of the complaint by the Home Office proceeded on the basis that the fault must lie on the victim rather than on the person harassing the victim.  

	That of course, is a familiar position to find where the victim is a woman and is complaining of sexual harassment by a man.  It would not be the first time that this Court has encountered an attitude which can be described as stereotypical that the woman victim has, in some way, asked for or been responsible for the mistreatment to which she has been subjected by the man.  It seems to us therefore, that taking those paragraphs as a whole, the Tribunal were upholding the complaint of unlawful discrimination on the grounds of race on the basis that the reason why the clear policy of the Home Office had not been put into operation by Mr Julian was because of his view that she was to blame and that by failing to carrying out that investigation, she had been subjected to a detriment, namely, a failure by the Home Office properly to give her the support that was required under the procedure and to take steps to ensure that so far as she was concerned she would be confident that her working environment would not expose her in future to a risk of similar conduct.

	That was a contention of unlawful discrimination which the Tribunal were entitled to uphold and indeed, as we understand it - although we have to confess that the position is not entirely clear - we think that is the basis also on which the Tribunal have arrived at their decision.  It is one of these difficult cases, we have to confess, where the Tribunal’s reasoning process is not as happily expressed as we would have wished.  The case took place 3 years ago.  It is, (both Counsel have put it on this basis I think) unthinkable that we should have to remit the matter back to an Employment Tribunal to elaborate their decision, which would have been the only alternative available to us, to dismissing the Appeal, having regard to the terms of the paragraphs to which we have referred. 

	On balance therefore, we have been persuaded, just, that we should uphold the decision of the Employment Tribunal on what would have been a sound basis for which there is support in these paragraphs and which we are ultimately persuaded was one of the bases on which they were finding the Home Office to be responsible in law for an unlawful act of discrimination.  

	Accordingly, the Appeal is dismissed.  

	We have been asked for leave to appeal.  We are not prepared to grant it for a number of reasons.  In the first place, it is to be noted that the Home Office did not appeal against this decision within the 42 day period provided for Appeals, but instead, waited for Miss Coyne to put in a Notice of Appeal and then cross-appealed themselves in relation to the finding of discrimination.  If Miss Coyne had not appealed, we infer that the Home Office themselves would not have done so.

	Secondly, it seems to us that the sooner this case is put to bed the better.  It has been dragging on for very many years.  The Tribunal heard evidence over a 10 day period in 1996.  The decision was sent to the parties in November 1996.  They have upheld the complaint of Miss Coyne on a very limited basis.  It seems to us that this was, in the end, a factual matter for the Employment Tribunal sitting as an industrial jury and although, as we have indicated, the difficulty arises from the way they have expressed their decision, it seems to us reasonably clear from the whole of it that they intended to find in favour of Miss Coyne on the basis that they were satisfied that the Home Office had acted unfairly towards her by not carrying out a proper investigation in accordance with their procedure and they were fully entitled to conclude that that was because of the view they had taken based on her gender. 

	Accordingly, although there are difficulties in the case, we do not think it appropriate to grant leave in this case.