Appeal No. EAT/0574/01

EMPLOYMENT APPEAL TRIBUNAL
SITTING AT COURT 73, THE ROYAL COURTS OF JUSTICE
THE STRAND, LONDON WC2A 2LL

	At the Tribunal
	On 26 September 2001

Before
HIS HONOUR JUDGE D SEROTA QC
MR W MORRIS
MRS D M PALMER

MISS M L HOLLIDAY	APPELLANT

(1) BECAUSE IT'S THERE LTD (2) MR T BALL	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR M JONES
(Solicitor)
Appearing under the
Employment Law Appeal
Advice Scheme	

JUDGE D SEROTA QC

1.	This is a Preliminary Hearing of an appeal by Miss M L Holliday against a decision of the Employment Tribunal in Nottingham chaired by Mr S Keevash.  The Extended Reasons were sent out on 15 March 2001 and the Tribunal rejected complaints of unlawful and sexual discrimination against her employers and against Mr Ball who had been manager of the shop in which she worked.

2.	In March 1999 Miss Holliday who as we understand at the time, must have been perhaps 17 or 18 was employed as a part-time sales assistant at a shop owned by the Respondent employer known as McArthur Glen Designer Outlook in South Normanton.  Mr Ball was the Manager.  

3.	The Tribunal was highly critical of Mr Ball and his management style which was described as setting off one employee against another to create tensions between staff which were exploited by Mr Ball.  One example of this management style concerned a dispute between Miss Holliday and another employee, Miss Marshall, which was to some extent engineered by Mr Ball to enable him to maintain and bolster his control over the staff.

4.	In April 1999 Miss Holliday was promoted to assistant manager.  The Tribunal found that in December 1999 the managing director Mr Neale had visited the shop in which Miss Holliday worked and had found it to be untidy and claimed that Miss Holliday was not wearing the appropriate uniform.  He discussed the matter with the area manager, Mr Lawson and it would seem, according to the Tribunal, that a decision was taken to dismiss Miss Holliday after Christmas.  No doubt it was felt that the store would be extremely busy at the run into Christmas and possibly immediately after that, but no decision was taken as to when she should be “let go” so as to speak.  As she had not been employed for the appropriate period her employment was not protected.

5.	On Christmas eve a private and confidential envelope was delivered to the shop addressed to Mr Ball.  This contained his Christmas bonus and it was sellotaped to a large brown envelope.  Miss Holliday detached the confidential envelope.  Mr Ball believed that Miss Holliday had opened the envelope.  There has been no finding by the Tribunal as to whether this did happen or not but nonetheless this is what Mr Ball believed and he became extremely annoyed and shouted at Miss Holliday.  Miss Holliday turned her back on him so he grabbed her arm.  The incident lasted no more than two to three seconds.  It was witnessed by Miss Marshall.  Miss Holliday was extremely upset and turned back towards Mr Ball and said “Don’t you touch me.  I’ll have you for assault.”  She was frightened and upset.

6.	There was a conflict of evidence between Miss Holliday, Mr Ball and Miss Marshall and the Tribunal concluded that Miss Holliday had exaggerated what had happened and on the other hand Mr Ball had minimised the force and extent of the physical contact.  There is no doubt in our opinion that Mr Ball’s conduct was inexcusable.  It doubtless did cause distress to Miss Holliday and Miss Holliday can doubtless take comfort from the fact that firstly Mr Ball has been cautioned by the Police and secondly been dismissed from his job partly because of this incident and partly for other reasons.

7.	Miss Holliday claims that the physical assault to which she had been subjected by Mr Ball and the fact that her complaints were treated with disdain amounted to discriminatory conduct on the part of the employer and that she had been victimised by being dismissed and the dismissal being upheld by the employer on appeal.  She also claims victimisation in relation to a form completed by Mr Ball sent to the Employment Service which Miss Holliday maintained contained false information.

8.	On 29 December or thereabouts Mr Ball told Mr Lawson, the Area Manager about the incident on 24 December.  He also said that Miss Holliday had deliberately opened the private and confidential envelope containing his Christmas bonus.  Mr Lawson believed what Mr Ball had told him.  Later that day Miss Holliday spoke to Mr Lawson and said that Mr Ball had grabbed her arm to stop her walking off.  Mr Lawson told her that he would investigate the matter but apparently did not believe her.  At that point of time the Tribunal found that Miss Holliday did not make clear that she considered her treatment was humiliating and frightening neither did she say that she had been treated differently from a male comparator.  

9.	A decision was taken on that day or shortly after to dismiss Miss Holliday.  The Tribunal found that she would have been dismissed in any event but the trigger for determining the date of her dismissal was the report from Mr Ball of the 24 December and the belief that she had opened the confidential envelope.  The Tribunal found that, either there was no proper disciplinary procedure or, that the procedure was not gone through adequately.  Had this been a case where Miss Holliday’s employment was protected because she had sufficient service then she may well have had very a strong case for unfair dismissal.  However, that is not the case that she was able to bring, as she lacked sufficient service.

10.	On about the 4 January 2000, or it may have been a day or two before, she together with her mother, she went to the Employment Service and was given details about how to make a claim for unfair dismissal and sex discrimination.  She then spoke to Mr Neale who asked her for a written account of the incident with Mr Ball.  Although Miss Holliday was asked then and on other occasions to supply a written account, at and one time intimated she would supply such a written account, no account was ever supplied by Miss Holliday.  Apparently she felt that to regard would be paid to her views.  However, the Tribunal have found as a fact that Mr Neale would have investigated the complaint had details been supplied to him.  He did ask Ms Harrison, another area manager, to look into the circumstances of her dismissal and Ms Harrison interviewed Miss Holliday on 24 January.  She discussed with her the specific complaints about her conduct about which complaint had been made but she said she did not discuss the incidents of 24 December as they were awaiting Miss Holliday’s report in writing as to what has taken place.  The last date when Miss Holliday worked appears to have been the 28January 2000.  

11.	On 1 March 2000Mr Ball returned a form to the Employment Service.  It is asserted in this appeal that he returned the form completed with false information, and that this amounted to victimisation.  However, the Tribunal have found in terms, and we refer to paragraph 4(q), that the questions answered by Mr Ball were answered truthfully.

12.	We have already mentioned that the hearing took place on 23 November 2000 and lasted as we understand it some five days the decision being promulgated on 15 March 2000.  The notice of appeal is dated 23 April 2001.

13.	A number of matters are raised on this appeal and we have had the great assistance of hearing submissions on behalf of Miss Holliday from Mr Mark Jones who appears under the ELAAS Scheme.  As ever we are indebted to advocates who appear  under this scheme.  In relation to the first issue, as to whether or not the assault constituted sex discrimination the Tribunal came to the conclusion (and we now refer to page 10) that Mr Ball’s conduct was technically an assault but it was not conduct of a sexual nature.  The Tribunal concluded, having considered the definition in the Equal Opportunities Commission Code of Practice and taking into account Miss Holliday’s subjective assessment of the assault that the facts disclosed high sensitivity on her part and the complaint was not well-founded.  The case was quite different from cases that had been cited to the Tribunal where there had been some sexual element in the conduct complained of, for example, in the case of Driskel where it had been suggested Miss Driskel should wear a short skirt and a see-through blouse showing plenty of cleavage.  There was no evidence before the Tribunal of gender specific action and the Tribunal rejected this head of complaint.  A comparator was put forward, a Mr Greatorex, who had also had a loud and noisy dispute with Mr Ball but the Tribunal came to the conclusion he was not an appropriate comparator.  This was because during the course of his argument with Mr Ball, unlike Miss Holliday he had not turned his back on Mr Ball, and therefore Mr Ball did not have to hold him by the arm to bring him back to face him.  It seems to us, bearing in mind that our function is to deal with matters of law, that we are bound by the findings of the Tribunal and we cannot see that the Tribunal misdirected itself in any way.

14.	The Tribunal then decided that the decision to dismiss could not amount to victimisation because at the time of dismissal there had been no protected act.  It is again a question of the fact for the Tribunal.  The Tribunal found that when the matter was first brought to the attention of the employer it was simply on the basis of there having been an assault.  No suggestion was made at that time any discriminatory or gender specific conduct.  It is then suggested that the Tribunal was wrong when it came to the conclusion that the failure to review the decision to dismiss amounted to victimisation or discrimination.  There had been a protected act when on 24 December Mr Neale was told of the incident as amounting to sexual discrimination.

15.	However, it is clear as we have mentioned, that Miss Holliday for reasons which no doubt seemed good to her, but which did not appeal to the Tribunal, failed to provide a written account.  We drew attention to the top of page 11 of the Extended Reasons during the course of submissions, where the Tribunal found there was no evidence that she was treated less favourably by reason of her protected act.  Mr Neale had acted properly when asking her to submit a written account.  Miss Holliday refused to attend a face-to-face meeting.  She did agree to supply a written account and was well able to do so and that might have constituted or would have constituted the basis of a complaint against Mr Ball.  It was understandable that Mr Neale did not investigate the complaint in the absence of a written statement.  Miss Holliday was reminded on several occasions and as late as 24 January the Tribunal found she had been reminded by Ms Harrison.  She could not complain of victimisation, say the Tribunal.  The first Respondent would have investigated the matter had it received a written account.  It seems to us that this reasoning cannot be faulted on the findings made by the Tribunal.

16.	It is then suggested that she was treated less favourably under the disciplinary procedure than the second Respondent was treated.  However, again this is a matter that was considered by the Tribunal and the finding was that a decision to dismiss the applicant had already been taken because of four matters, which predated the incident on 24 December.  The implementation of the decision to dismiss was made earlier than otherwise planned, because Mr Neale and Mr Lawson believed that the applicant opened the private and confidential envelope and had exaggerated the incident on 24 December.

17.	The Employer was entitled to consider say to the Tribunal that the assault was not a disciplinary matter until Miss Holliday’s account was put in writing.  A written complaint would have been investigated.  The Tribunal also found that a proper comparator was a male with less than one year’s service who made complaint of the decision to dismiss.  That seems to us to be wholly correct as the comparison should be between one employee whose employment was not protected with that of another in a similar situation but of a different sex.  The Tribunal found there was no evidence the first respondent treated the Applicant less favourably than such an employee.  Again on those findings of facts it seems to us impossible to say that there is any error of law disclosed that might give rise to an appeal.

18.	We have already dealt with the form that was returned to the Employment Service on 1 March.  The Employment Tribunal found contrary to the submissions that were made on behalf of Miss Holliday, then the answers were wholly accurate.

19.	It seems to us that the complaint that the Employment Tribunal should have considered the hypothetical comparator is not made out.  There is nothing to suggest that they misdirected themselves in relation to the assault.  They accepted the evidence of Ms Marshall but they were not able to accept entirely either the evidence or Miss Holliday or of Mr Ball.  Even though Mr Ball was dismissed for bullying there was no evidence that this particular assault was gender specific.  In relation to the suggestion of victimisation Mr Jones suggested that a comparator should have been identified.  It seems to us on the particular findings made by the Tribunal that one did not need to find a comparator.  In any event the Tribunal found that a proper comparator (a male employee of one year’s service who had made a complaint after the decision to dismiss was taken,) would have been treated no differently.

20.	We have considerable sympathy for Miss Holliday because she was clearly the victim of an assault as we have said.  We have also said that were she to have been employed for longer she would have been in a position to have made a claim for unfair dismissal.  However, as our role is simply to deal with questions of law raised on appeal we do not think that the matters disclosed in the grounds of appeal, the skeleton argument and what we have heard today from Mr Jones disclose any point of law that has any chance of success on appeal.  In those circumstances and despite our sympathy to Miss Holliday we feel that we have no option but to dismiss this appeal.