Appeal No. EAT/0477/02/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	                  At the Tribunal
	               On 11 April 2003
Judgment delivered on 13 May 2003

Before
HIS HONOUR JUDGE PETER CLARK
MR P A L PARKER CBE
MR H SINGH

MS C HARRISON	APPELLANT

1)	LONDON FIRE & EMERGENCY PLANNING AUTHORITY 
formerly LFCDA 2) MR G LUKE	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MISS ELIZABETH MELVILLE
(Of Counsel)
Instructed by:
Messrs Thompsons 
Solicitors
Congress House
Great Russell Street
London
WC1V 3LB

For the Respondent	MR COLIN WYNTER
(Of Counsel)
Instructed by:
London Fire & Emergency Planning Authority
Room 611 Main Building
Fire Brigade Headquarters
8 Albert Embankment
London
SE1 7SD	

JUDGE PETER CLARK

1.	This is an appeal by Miss Harrison, a female fire fighter employed by the first Respondent Authority, against a decision of the London (Central) Employment Tribunal chaired by Mr P R K Menon, promulgated with Extended Reasons on 13 February 2002, dismissing her complaint of unlawful direct sex discrimination against both the first Respondent and the second Respondent , sub-officer Luke, her line manager at the Kingsland Road, Hackney fire station from 10 January 1994 until her transfer to Islington fire station in October 1995.
 
2.	Following earlier hearings before a chairman, Mr Rabin, allegations of discriminatory acts prior to January 1994 were ruled out of time, leaving those complaints set out at paragraphs 21-37 of the particulars headed ‘Box 11’ attached to her Originating Application presented to the Employment Tribunal on 18 May 2000.

3.	The nature of her complaints is summarised by the Employment Tribunal at paragraph 2 of their Extended Reasons and the evidence which she gave in support of those complaints, supported by that of her partner and fellow fire fighter, Mr Crowhurst, is set out at paragraphs 10 and 11.  How the Employment Tribunal dealt with those complaints and that evidence, set against the evidence called by the Respondents, forms the real battleground in this appeal.

The Employment Tribunal’s duty to find the facts and give reasons for their decision
4.	Rule 12(3) of the Employment Tribunal Rules of Procedure 2001 requires the tribunal to give reasons for its decision in a document signed by the chairman.  By rule 12(4) extended reasons must be given in a case involving a complaint brought under the Sex Discrimination Act.

5.	That obligation, on one view, is not especially onerous.  In the much cited words of Bingham LJ in Meek v City of Birmingham District Council [1987] IRLR 250, 251 the decision ‘must contain an outline of the story which has given rise to the complaint and a summary of the tribunal’s basic factual conclusions and a statement of the reasons which have led them to [their] conclusions…  The parties are entitled to be told why they won or lost’.

6.	This case was heard in May and November 2001.  Apparently the Court of Appeal judgment in Anya v University of Oxford [2001] IRLR 377, decided on 22 March 2001 and reported prior to the final hearing in November, was not cited to the Employment Tribunal.  That said, we are far from assuming that this very experienced chairman was not familiar with it when he came to write the Employment Tribunal’s Extended Reasons.

7.	In our view Sedley LJ, in giving the judgment of the court in Anya, was bringing together a number of strands in the previously decided cases in order to spell out the Employment Tribunal’s approach to these difficult discrimination cases, whether based on sex or race.  The following principles are highlighted.

(1)	The Employment Tribunal must make the necessary findings of primary fact.  That is a pre-requisite to the drawing of inferences in cases where admitted discrimination will be rare.

(2)	Credibility of witnesses may not be the end of the road, since a witness may appear credible, honest and yet be mistaken.

(3)	In expressing the Employment Tribunal’s view on credibility a bold statement that one side’s evidence is preferred to the other’s, without explanation is unreasoned and unacceptable (approving the passage to that effect in Tchoula v Netto. EAT 6 March 1998. Morison P. unreported).

(4)	Having made the necessary findings of primary fact it will be necessary to stand back and look at the totality of the facts as found, rather than take each complaint and apply the question ‘discrimination or no’ to each allegation.

That principle is to be found in the guidance contained in the judgment of Holland J in Driskel v Peninsula Business Services Ltd [2000] IRLR 151, paragraph 12, going back to the judgment of Mummery P in Qureshi v Victoria University of Manchester, 21 June 1996, finally reported [2001] ICR 863 note and approved in Anya.

(5)	Having found the facts it is for the Employment Tribunal to apply the law to those facts.

The Employment Decision
8.	Set against those yardsticks we turn to the structure of this Employment Tribunal’s reasons.  It is a little unusual and we are grateful to Mr Wynter for steering us through it.

9.	Having set out the Applicant’s pleaded case and referred to earlier hearings before Mr Rabin dealing with limitation the Employment Tribunal set out the applicable law as they saw it by reference to s1 and 6(2) SDA.  They refer also to the definition of sexual harassment (92/131/EC).  Next they list the witnesses from whom they heard, giving a brief pen portrait in each case.

10.	At paragraph 7 they say this:

“7	As to the Tribunal’s assessment of the reliability and the credibility of the witnesses, the Tribunal found Mr Luke to be a very impressive and credible witness.  Likewise, all the Respondent’s witnesses were credible witnesses.  It was obvious to everyone at the Tribunal throughout the hearing that the Applicant is unwell and that she is under great stress which has been aggravated by having to sit through these lengthy proceedings.  The Tribunal did all it could to ease her pain and stress.  The Tribunal is very aware that reading this decision will only add to her pain and stress.  It has to be said that over the years she has formed a mistaken albeit genuinely-held perception of past events and she is sincerely convinced that she is a victim of sex discrimination.  Her recollections of past events are not wholly reliable and they have been affected by her perception.  As to the dispute of facts, the Tribunal prefers the evidence of Mr Luke and the Respondents’ witnesses to that of the Applicant and Mr Crowhurst.”

11.	There then followed a chronology and a reference to certain documents placed before them.  Amongst those documents was a Home Office Report ‘Equality and Fairness in the Fire Service’ dated September 1999.  We have not been taken to that document but we are told that it branded the fire service at that time ‘institutionally sexist’.  The only other reference to that Report in the Employment Tribunal’s reasons appears at paragraph 10(9) where, in summarising the Applicant’s evidence, the Employment Tribunal record her saying of that Report; ‘I couldn’t believe how much it mirrored my own experience.’

12.	At paragraphs 10-11 the tribunal first summarise the Applicant’s allegations against the first Respondent and then, specifically, against Mr Luke, the second Respondent.

13.	Next they record the closing submissions of Counsel, Mr Wynter for the Respondents (paragraph 13) and Ms Melville for the Applicant (paragraph 14).

14.	At paragraph 15 the Employment Tribunal refers to the alteration in the burden of proof affected by s63A SDA 1975, as inserted by the 2001 Regulations.

15.	Finally, at paragraph 16 they make their findings on the Applicant’s complaints leading to their conclusion that those complaints failed.

The Appeal
Credibility
16.	Ms Melville submits that the Employment Tribunal’s blanket finding, at paragraph 7 of their reasons, preferring the evidence of Mr Luke and the Respondents’ witnesses to that of the Applicant and Mr Crowhurst, is precisely the sort of wrong approach deprecated by Morison P in Tchoula as endorsed by Sedley LJ in Anya (paragraph 24).

17.	We think that that submission is well made, subject to Mr Wynter’s contention that, upon a fair reading, the Employment Tribunal has made, permissibly all necessary and proper findings of fact.  We shall return to that submission later.

18.	The danger of such a blanket approach is well-illustrated in the particular circumstances of this case.  We take one example.

19.	At paragraph 16 the Employment Tribunal set out their findings.  At paragraph 16(3) they say:

“The Tribunal’s assessment of the witnesses is to be found in paragraph 7 of this decision.  Contrary to Ms Melville’s submissions, we found Messrs Luke, Whyte, Groombridge and Kyte to be impressive witnesses.”
 
20.	We shall focus on the evidence of Mr Kyte.  He was described to us by Mr Wynter, on behalf of the Respondents, as a notorious character.  Employed as Station Office on Red Watch at Islington by the first Respondent he had been dismissed for allegedly making a racist remark and later reinstated by a panel of members on appeal.  His only part in the present case concerned a specific allegation by the Applicant summarised by the Employment Tribunal at paragraph 10(1)(b) of their reasons as follows:

“In early 1999, at the scene of a fire, [the Applicant] and Ms Metz [a fire-fighter then based at Islington] had wiped the surface of a kitchen which had been covered in soot.  The next day Station Officer Kyte from the Red Watch said in front of the other fire-fighters “how useful women were in the fire service because they were good with the dishcloth when cleaning up after the fires”.  The Applicant found the comment belittling and insulting.”

21.	Ms Metz did not give evidence before the Employment Tribunal.  She was on maternity leave at the time of the hearing.  However the Respondents put in a witness statement from her in which she agreed that Mr Kyte had made the remark as alleged by the Applicant.

22.	Mr Kyte denied making the comment.  He was called, indeed, so Mr Wynter tells us, he insisted on being called to give evidence.  We have the Chairman’s Notes of his cross-examination.  He maintained his denial.

23.	Thus the Employment Tribunal was faced with a straightforward conflict of evidence which required resolution.  Did Mr Kyte make the offending remark or not?

24.	Given the Employment Tribunal’s blanket preference for the evidence given by the Respondents’ witnesses to that of the Applicant, and their description of Mr Kyte as an ‘impressive witness’, it may be expected that his denial would be accepted.  However the Employment Tribunal had corroborative evidence from Ms Metz for the Applicant’s account, even although that came only in the form of a witness statement.

25.	We turn then to the Employment Tribunal’s findings in relation to this incident.  At paragraph 16(7)(ii) they say:

“Mr Kyte’s remarks “that women are good with dishcloths” was made in the course of “backchat” and his banter with Ms White (Metz), who took it with “a pinch of salt” (her words) and did not constitute an act of sex discrimination by Mr Kyte for which the LFCDA [the predecessor of the first Respondent] (Mr Luke was not involved in this matter) was vicariously liable.”
 
26.	One swallow does not make a summer.  However, it is worth considering the effect of that particular finding.  On one view the Employment Tribunal were accepting that the remark was made.  If so, they were rejecting Mr Kyte’s evidence on the one matter on which his evidence was required.  If so, how can a witness whose testimony is rejected be described as ‘impressive’?  Unless it be that, having listened to all the evidence, the Employment Tribunal took against the Applicant and reached the result first and provided the reasoning to follow, instead of the other way about.  That possibility is further raised by the way in which they dealt with that finding; if the remark was made Ms Metz took it with a pinch of salt and it did not amount to an act of sex discrimination by Mr Kyte for which the first Respondent was vicariously liable.  That analysis, with respect, entirely misses the point.  It was not Ms Metz who complained of sex discrimination; it was the Applicant.  She was recorded by the Employment Tribunal as finding the comment belittling and insulting.  If the comment was made was that her reaction?  If so, how does that impact on the question of whether she was, overall, subjected to sexual harassment, defined for this Employment Tribunal’s purposes as ‘unwanted conduct of a sexual nature, or other conduct based on sex affecting the dignity of women at work’; (reasons, paragraph 5)?  The Employment Tribunal provides no answer to those questions.

27.	We should refer to 2 other matters of credibility.  First, the other sexist remark complained of by the Applicant.  She alleged that in August/September 1999 she went to Dowgate Fire Station to do a standby with the White Watch.  A new male recruit, whom she did not identify, asked where she came from; when she replied ‘Hackney’ he said “all girls from Hackney are prostitutes”.  She became very upset, so the Employment Tribunal record at paragraph 10(1)(c) of their reasons.

28.	The Employment Tribunal dealt with that part of her evidence at paragraph 16(7)(i), where they say:

“The Applicant was unable to assist in identifying the new recruit who had allegedly told her “all girls from Hackney are prostitutes.”  In the circumstances it was not possible for the LFCDA (Mr Luke had no involvement in this matter) to pursue the matter any further by way of investigation and/or disciplinary action.  This did not therefore constitute an act of sex discrimination by the LFCDA against the Applicant.”

29.	Pausing there, the first question for the Employment Tribunal, as the finders of the facts, was whether the remark was made.  No such finding of fact is made. cf Levy v Marrable [1984] ICR 583.  If it was made the case to be considered was whether the first Respondent was liable for that fire fighter’s remark, if it amounted to an act of sex discrimination viewed in the round, under s41(1) SDA which provides:

“Anything done by a person in the course of his employment should be treated for the purposes of this Act as done by his employer as well as by him, whether or not it was done with the employer’s knowledge or approval.”

30.	It appears that the first Respondent did not raise the statutory defence under s41(3) in this case (reasons, paragraph 14(8), recording a submission made by Ms Melville in closing).

These questions, again, were not addressed by the Employment Tribunal.

31.	Secondly, at paragraph 16(12), the Employment Tribunal said this:

“As to the medical evidence, the Tribunal prefers the evidence of Dr Master to that of Dr Bright, who appears to have accepted as established facts all the allegations made by the Applicant on the basis that if “she says those incidents took place, they must have taken place” and that no further investigation was required.”

32.	Leaving aside whether that is adequate reasoning when assessing expert evidence (see Flannery v Halifax Estate Agencies Ltd [2000] IAER 373 (CA)), that brings us back to the only reason apparently given by the Employment Tribunal at paragraph 7 for rejecting the evidence given by the Applicant (and Mr Crowhurst).  That throughout the hearing the Applicant was unwell and under great stress.  Although not entirely clear it may be that her medical condition led, in the Employment Tribunal’s view, to her forming a ‘mistaken albeit genuinely-held perception of past events.’  We confess that we do not find this reasoning easy to follow.
 
Finding the Facts
33.	We have earlier referred to 2 specific examples of what Ms Melville submits was inadequate fact-finding by the Employment Tribunal.  However she makes a more general criticism of the Employment Tribunal’s approach.

We refer to the observation of Holland J in Driskel, paragraph 12(a):

“The tribunal hears the evidence and finds the facts.  As has already been pointed out, it is desirable not to include in this exercise judgments as to the discriminatory significance, if any, of individual incidents - judgments thus far should be limited to the finding of all facts that are prima facie relevant.  If ad hoc assessments ‘discrimination or no’ are made the result is a fragmented and discursive judgment; more importantly there is the potential noted in Reed and Bull [Information Systems v Stedman] (1999) IRLR [Morison P] for ignoring the impact of totality of successive incidents, individually trivial.”

34.	It is precisely that flawed approach, submits Ms Melville, which is apparent from the Employment Tribunal’s findings expressed at paragraph 16.  There are findings of fact on individual complaints made by the Applicant, each with the Employment Tribunal’s assessment ‘discrimination or no’.

35.	For the purposes of this appeal she focuses on 2 aspects of the Applicant’s case below, summarised at paragraph 14(1) of the Employment Tribunal’s reasons as:

(i)	specific comments or actions directed at the Applicant
(ii)	a culture or type of behaviour not directed specifically at her but which creates a hostile environment.

36.	As to the first category, we have earlier dealt with the ‘dishcloth’ and ‘Hackney’ remarks.  As to the latter, Ms Melville has taken us, under the general headings of pornography and ‘banter’, to passages in the cross-examination of the Respondent’s witnesses which, she submits, build up a picture, not dissimilar to that painted by the Home Office Report, which the Employment Tribunal deals with at paragraph 16(10) of their reasons.  Having described this part of the Applicant’s case as the only arguable act of sex discrimination on the part of the Respondents, they apparently rejected it on the basis that the standard of language used at fire stations is not that found at a vicarage tea party; that sexist language was not directed at her and that Mr Luke and the LFCDA management did all they could to prevent the display and distribution of pornographic material.

37.	It is here that we think Mr Wynter makes his stand in support of this Employment Tribunal’s decision.  He has taken us through the various findings of fact made by the Employment Tribunal in paragraph 16 of their reasons and submits that in every case the Employment Tribunal reached a permissible finding, rejecting the Applicant’s case, so that viewed as a whole the decision can and should stand.  It is implicit in his submissions that it is not for this appeal tribunal to substitute its findings of fact.

38.	With that last observation we wholeheartedly agree.  For this reason we reject, without more, the Applicant’s case based on perversity.  See Yeboah v Crofton [2002] IRLR 634.  However, we are not persuaded that this decision can stand for the following reasons:

(1)	 the Employment Tribunal’s approach to credibility is fatally flawed.
(2)	all necessary findings of primary fact, including undisputed evidence, have not been made.
(3)	the Employment Tribunal has not stood back and assessed the overall factual picture as found before applying the law to the facts.

39.	In short, it has not, by its reasoning process, adequately demonstrated how it has arrived at its findings of fact and how it has progressed to its conclusions.  In our judgment this decision and its reasons are not ‘Meek-compliant’, to use the expression coined by Sedley LJ in Tran v Greenwich Vietnam Community [2002] IRLR 735, paragraph 17.

40.	In these circumstances we shall allow this appeal and, not without regret, since this is an old case which took some 12 days to hear, remit the matter to a fresh Employment Tribunal for rehearing.  We must do so knowing that the outcome is far from certain.