Appeal No.EAT/0664/01 & 1098/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 3 September 2002
Judgment delivered on 7 November 2002

Before
MR RECORDER UNDERHILL QC
MR C EDWARDS
MR T HAYWOOD

HINDHEAD ROYAL BRITISH LEGION CLUB LTD	APPELLANT

MRS M HINTON	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MISS LYDIA SEYMOUR
(of Counsel)
Instructed by:
Messrs Stevens & Bolton Solicitors
The Billings
Walnut Tree Close
Guildford
Surrey GU1 4YD	
For the Respondent	MR RICHARD DALTON
(of Counsel)
Instructed by:
Burley & Geach
2 West Street
Haslemere
Surry GU27 2AG	

MR RECORDER UNDERHILL QC

1	The Respondent to this appeal (to whom we will refer as Mrs Hinton) and her husband were employed by the Appellants (to whom we will refer as “the Club”) as joint stewards of the Royal British Legion Club in Hindhead.  Their marriage got into difficulties, and on 4 June 2000 Mr Hinton resigned, with one month’s notice.  Mrs Hinton was dismissed with effect from 23 June 2000.  She did not have sufficient continuity of employment to claim for unfair dismissal, but in the present proceedings she has alleged that she was the victim of sex discrimination by the Club in a number of respects.  The Tribunal dismissed her complaints in all respects save one, which is the only matter with which we are concerned on this appeal.

2	The respect in which her claim succeeded arose out of an incident on 28 May 2000 when she was the victim of an assault by her husband in the bar of the Club.  As to this, the Tribunal found as follows (at paragraph 3 (h) of the Extended Reasons):

Another specific incident upon which we received evidence arose on an occasion (this date we have not been able to identify for certain) when Mr Hinton assaulted the Applicant by pushing her against the door from the bar and bruising her back against the handles.  Members of the Respondent were present at the time and, certainly, there were members of the Executive Committee there.  The Applicant made a remark to those there to the effect that “Is this the sort of steward you want?”.  Mr Hinton pushed the Applicant through the bar doors and onto the stairs leading to the flat occupied by the Applicant and Mr Hinton.  There is no doubt at all that this was witnessed by a number of people.  We heard evidence from Mr Wren [the Chairman of the Club] on this matter.  He said that he heard about the incident, but regarded it as a domestic matter rather than a business matter. He said that he did not regard the matter as being of any great concern, but it was not an incident of major violence and that he did not make any enquiries.  

(Although the Tribunal was able at that stage to make no finding about the date of the incident, it was apparently established at the remedies hearing, as to which see below.)  As regards whether how that incident was handled constituted sex discrimination, the Tribunal (at paragraph 7 of the Extended Reasons) held as follows:

We now turn to the matter of the assault by Mr Hinton on the Applicant.  As we have indicated in our findings of fact, it is quite clear that the incident came to the notice of Mr Wren, the then Chairman of the Respondent.  It is also clear that he took the view that he would not pursue the matter any further because he regarded it as a domestic matter and not of great significance.  We do not regard that explanation as satisfactory.  Mr Potter, for the Respondent, referred us to the House of Lords decision in Zafar v Glasgow City Council [1998] IRLR 36 and the Court of Appeal decision in King v Great Britain-China Centre [1992] ICR 516.  These were both cases concerned with race relations, but the principles set out therein have been adopted in sex discrimination cases.  We have come to the conclusion that, had the Applicant been a male, then the Respondent would certainly have looked further into the allegations of assault and taken some action.  Furthermore, had the Applicant been a single woman and not married to Mr Hinton, then again we are satisfied that the Respondent would have taken action to enquire into the assault and possibly taken some action against Mr Hinton.  We therefore find, that in this particular incident, the Respondent did discriminate against the Applicant, firstly, on the grounds of her sex and, secondly, on grounds of her marital status and that he treated her differently to the way in which he would have treated a man or a single woman respectively.

4	At a subsequent hearing, the Tribunal made an award of £7,000 in respect of injury to Mrs Hinton’s feelings.

5	The Club appeals against both decisions.  We take them in turn.

Liability

6	It will be noted that the Tribunal found discrimination in relation to the assault incident on two bases - first on the basis of sex and secondly on the basis of marital status.  Mr Oulton, who appears for Mrs Hinton, accepts that discrimination on the grounds of marital status never formed part of her application and that the finding of the Tribunal in this respect cannot stand.  

7	The case accordingly depends on the Tribunal’s finding that the Club would have taken some action if Mrs Hinton had been a man.  In our view that finding cannot stand.  There is no indication whatever of the basis on which it was reached.  All that the Tribunal says is that Mr Wren’s explanation for not taking the matter further - that he regarded the incident as “domestic and not of great significance” - was “unsatisfactory”.  It is not clear what the Tribunal meant by that.  There is no indication - as there would have had to have been if this is what the Tribunal meant - that it intended to find that Mr Wren had given a dishonest explanation.  Presumably it meant that it did not regard the fact that the incident was “domestic” as an adequate reason for taking no action.  That may well be a reasonable view, but it does not follow that Mr. Wren’s reason was sexually discriminatory.  When a third party (such as an employer or the police) expresses reluctance to get involved in a “domestic” incident, what they ordinarily mean is that the incident is private or “none of their business”.  It has nothing inherently to do with the gender of the parties involved: a domestic incident can in principle arise just as much between same-sex partners or, say, a mother and daughter as between a husband and wife; and, even between husband and wife, although the perpetrator of an assault is more commonly the man, that is not always the case.  Accordingly Mr Wren’s explanation of his failure to take action was not in on its face discriminatory.

8	Of course it was open to the Tribunal to find that Mr Wren’s explanation was not the real explanation, or at any rate the full explanation, and that subconsciously he was motivated by the fact that Mrs Hinton was a woman.  Indeed such a finding is implicit in the statement that the Club would have taken some action “had the Applicant been a male”.  But such a finding cannot simply be asserted.  Its basis must be explained.  On the face of it, Mr Wren’s explanation for not wanting to take action is perfectly plausible and would - as we say above - have had equal application if it had been Mrs Hinton who (say) had thrown a plate at Mr Hinton.  If the Tribunal was to reject that explanation and find a discriminatory motive, conscious or unconscious, it had to have some reason, based on the evidence, for doing so and to say what that reason was.  It is not permissible simply to leap from finding an “unsatisfactory” explanation to an inference of discrimination: that is the error identified by the House of Lords in Zafar.  The need for a proper explanation of the factual basis on which a Tribunal either draws an inference of discrimination or declines to do so has been emphasised in the recent case law, most notably in Anya v University of Oxford [2001] ICR 847.

9	Miss Seymour, who appeared for the Club, made submissions along these lines and referred us, inevitably, to the decision in Meek v City of Birmingham [1987] IRLR 250.  But she made a number of more specific points with which we should deal briefly:

(1)	She submitted that the Tribunal was wrong in referring to “the allegations of assault”: there was no evidence that Mrs Hinton ever complained about the assault to the Committee.  If this were the only point, we would not regard it as giving rise to any error of law.  The language is no doubt loose; but what the Tribunal plainly had in mind was the fact that - as it emphasised - the incident was directly witnessed by members of the Committee and was reported to Mr Wren, and that it would certainly had been open to them to take action if they had chosen.  Nevertheless, the Tribunal’s looseness of language may be a further indication that it did not consider with sufficient rigour what exactly it was intending to find.

(2)	She claimed that the Tribunal did not identify the correct “hypothetical comparator”: it referred simply to how the Club would have acted in the case of “a male”, whereas the correct hypothetical comparator was a male who had been assaulted by his wife or some other person in a domestic incident.  Miss Seymour is plainly right that that is the correct analysis.  We are less sure that the Tribunal’s wording necessarily means that it had asked itself the wrong question: it may, again, simply be loose language.  But the reason why it is not possible to be sure is, again, that the Tribunal’s reasoning is not adequately spelt out.  Accordingly, this submission essentially brings us back to the fundamental deficiency in the Reasons which we have identified above.

(3)	She contended that the Reasons do not sufficiently identify what action the Club failed to take - or, to put it another way, would have taken if the victim of the assault had been a man.  We do not believe that this criticism is justified.  The finding of the Tribunal that what the Club would have done was to “enquire into the assault” and “possibly” take some action seems to us sufficient.

10	We accordingly allow the appeal against the liability decision.  Miss Seymour sought to persuade us that in that event it was unnecessary for us to remit the case to the Employment Tribunal and that it was possible for us to hold that, if the Tribunal had directed itself correctly, it would have been bound to find that the failure to take steps against Mr. Hinton had nothing to do with gender.  That is a tempting submission, but we do not believe that we can conscientiously accede to it.  It would not be right for us - not having heard the totality of the evidence or seen Mr. Wren give evidence to the Employment Tribunal - to decide whether or not the Club’s decision was discriminatory.  The decision on what inference to draw as to the Club’s reasons for failing to take any action is quintessentially a factual question which can only properly be addressed by a Tribunal which has heard the primary evidence.

11	The question then arises whether the issue should be remitted to the same Tribunal or to a fresh Tribunal.  Miss Seymour submitted that it should be heard afresh before a different Tribunal.  Mr Oulton submitted that it should be remitted to the same Tribunal but on the basis that they should hear further evidence: he made it clear that he would wish to have the opportunity to cross-examine Mr Wren further on his attitudes and on the surrounding circumstances.  Neither solution is ideal.  In our view it would be very unsatisfactory, and would create real difficulties for the Tribunal, if the same Tribunal were asked to revisit this single issue on the basis partly of evidence which they heard over a year ago and partly of further evidence.  In addition, there is the more general consideration that it would, with the best will in the world, be difficult for the Tribunal to approach this question with an open mind; and that is reinforced by our decision on the quantum issue, where (to anticipate) a fresh consideration will also be required (were the Tribunal to come to the same conclusion on liability).  In our view, the better course must therefore be to remit the case to a fresh Tribunal.  We doubt whether this course will in fact involve substantially more time than a remission to the same Tribunal.  The issue is a narrow one, albeit that some reference to the background may be required.

Quantum

12	The Extended Reasons on this issue are short and it is convenient to set them out in full:

1	“We heard evidence from the Applicant.  We are satisfied that the Applicant saw the incident as work place bullying and that she felt humiliated because it happened in public and was witnessed by members of the Respondent Club and also Committee members.  She appealed to those present by using the words “Is this the sort of Steward you want?”  In response during our hearing to Mr Potter, on behalf of the Respondent, the Applicant made it clear that her concern then was that the Respondent carried out no investigation or, if they did, they did not let her know the outcome, and they did not discipline Mr Hinton.  We are conscious that it is this particular issue on which we should consider damages for injury to feelings and not on the incident itself. 
2	We heard evidence that the Applicant, at the time of the incident, was suffering from depression arising from marriage difficulties.  We have received no medical evidence at this hearing, but are satisfied that the Applicant’s general health has continued to deteriorate since the incident.  We are satisfied that, in the light of the circumstances of this particular incident, the consequent failure of the Respondent to take action did cause further specific injury to feelings.
3	We have borne in mind the recent guidance of the Employment Appeal Tribunal in the case of ICTS (UK) Ltd v Tchoula [2000] IRLR 643 and are unanimously of the view that this case is one which falls into the lower category as defined by the EAT in that case.  Each case is of course individual and we are of the view that, in this particular case, an award of £7,000.00 for injury to feelings is appropriate.”

13	The Tribunal plainly asked itself the correct question.  It understood that it was concerned only with the injury to Mrs Hinton’s feelings attributable to the Club’s failure to investigate the incident and not to the injury to feelings caused by the incident itself.  Likewise it correctly identified that it was only concerned with the specific injury over and above the problems which Mrs Hinton was already understandably suffering as a result of the break-up of her marriage.

14	However, we are bound to say that, on the basis of those self-directions, we regard an award of £7,000 as so much out of the appropriate bracket as to be wholly erroneous.   This was a single incident.  Even assuming, as we must for the purpose of this exercise, that the failure of the Club to take any action was, and was perceived by Mrs Hinton to be, at least partly because she was a woman, there was no overt statement to this effect of a kind which might understandably have caused direct offence or hurt.  It was not associated with any specific detriment inflicted on her by the Club, such as occurs in (for example) cases of discriminatory failure to select for promotion or discriminatory dismissal.  It had no impact on her career and would not have been perceived by colleagues or the outside world.  It is a case of injury to feelings in the purest sense: that is, Mrs Hinton must have felt that she was, because she was a woman, not as valued at the Club as a man would be and she was denied the satisfaction of seeing her husband investigated, and perhaps punished, for his conduct towards her.

15	There is also the point that the Tribunal refers to a deterioration in her “general health ... since the incident”, but it is unclear whether it intended to make any causal connection: if it did, the evidential basis for such a finding is not identified.  This cannot, on the evidence referred to, be treated as a case where there the applicant had suffered any injury to her mental health.

16	In all these circumstances we do not believe that a figure as high as £7,000 can be justified.  If it were to be justified by some special features of the case, the Tribunal has not identified what those features are.  Ordinarily we would have been prepared - in accordance with the general practice, at least where sufficient evidence is available - to substitute our own figure.  However, since the case is to be remitted on liability in any event, and since the Tribunal’s findings of fact in relation to quantum are so very shortly stated, it seems to us better that the question be decided, if it arises at all, by the same Tribunal as considers the question of liability.  It will, in considering the question of remedy (if it arises), no doubt have regard to our observations on the amount originally awarded; but it should not feel constrained from awarding whatever appears to it to be the correct amount having regard to the evidence which it hears.

17	We would add that it seems to us that, having regard to the narrowness of the issues as they now are, it may make sense for the Tribunal to hear evidence both as regards liability and as regards quantum at the same hearing, rather than again have a split trial.  But there may be other considerations of which we are unaware, and we accordingly make no direction to that effect.