Appeal No. UKEAT/0494/03/TM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 6 January 2004
Judgment delivered on 5 February 2004

Before
HIS HONOUR JUDGE WILKIE QC
MR P A L PARKER CBE
MS P TATLOW

W	APPELLANT

(1) X
(2) Y
(3) Z	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MISS K MONAGHAN
(of Counsel)
Instructed by:
Equal Opportunities Commission
Legal Service
Arndale House
Arndale Centre
Manchester M4 3EQ

For the First and Third Respondents

For the Second Respondent 	MR I MACCABE
(of Counsel)
Instructed by:
Messrs Langleys
(Solicitors)
Queen’s House
Micklegate
York
North Yorkshire Y01 6WG

MR B CASWELL 
(of Counsel)
Instructed By:
Elmhurst & Maxton
13 Vinkle Street
Selby
N. Yorkshire

HIS HONOUR JUDGE WILKIE QC:

1	This is an appeal by W against the decision of the Employment Tribunal held at Leeds which dismissed her various claims against the three respondents, (1) X (2) Y and (3) Z.  The decision of the Employment Tribunal was sent to the parties on 7 May 2003 following a hearing which encompassed seven separate days in March and April 2003.  The tribunal decision is a lengthy one, some 38 pages, and is in many respects admirably full and comprehensive.  It deals with a somewhat complex history of events and addresses a number of legal issues, some of which are difficult and involve the construction and application of very recent legislation.

2	The appellant made a number of interlinked legal claims against the respondents.  They comprised a claim of direct sex discrimination under section 6, together with section 1(1)(a) of the Sex Discrimination Act 1975, victimisation under section 6 and section 4 of that Act, a “detriment” for making protected disclosure pursuant to sections 43B, C, G, and H, and 47B of the Employment Rights Act 1996, a “detriment” pursuant to the provisions of section 44(1)(c) of the Employment Rights Act 1996 concerning Health and Safety and Constructive Unfair Dismissal.

3	The appellant was at all material times employed by the Partnership which comprised the first two respondents in practice as veterinary surgeons.  She was employed by the practice as head nurse for the period from 10 January 2000 until her resignation which the tribunal concluded had taken effect on 10 June 2002.  The multifarious legal claims arose out of an application to the Employment Tribunal which set out in narrative form a history of events.  That encompassed her complaint that Y had frequently made sexist and inappropriate sexual remarks to other nurses and to the appellant, that X was aware of this, that immediately prior to a weekend course upon which she was booked to go in Northumberland on 9 and 10 February 2002 with Y and another nurse, X made what she regarded as inappropriate and sexist comment, that during the evening of 9 February Y deliberately got her drunk, possibly drugged her drink, manipulated the situation such that she had to go to his room where he seriously sexually assaulted her.  Thereafter, in dealing with the complaint which she had made both to X and to the police she claimed that she was off work sick with stress and depression and that the way in which X had dealt with the matter thereafter constituted victimisation and/or a detriment and that her resignation comprised constructive dismissal.  

4	The tribunal constructed its decision by setting out a number of topics under headed sections.  Some of these dealt with preliminary matters and procedural issues.  One of them dealt with the statutory questionnaire.  In particular she served a questionnaire on the second respondent on 9 May 2002, the same date as her tribunal application form.  The second respondent never responded to that questionnaire.  The issue arose for the tribunal whether it should draw an adverse inference against the second respondent by reason of this total failure to comply with the statutory procedure.  The tribunal has the power though not the duty to do so.  In its decision the tribunal dealt with the question whether it should draw any adverse inference against the second respondent by reason of his failure to respond to the questionnaire as a separate matter from its consideration of the substance of the appellant’s complaint.  It concluded that it would not be proper to draw any adverse inference from that failure in the case of the second respondent by a reason of the fact that they could understand that a very cautious approach was taken in circumstances in which a very serious criminal charge might have been brought against the second respondent.  We were told that in fact the second respondent was informed by the authorities that no further action was intended to be taken in respect of the appellant’s complaint of a serious sexual assault against him as early as August 2002.  This was some seven months before the commencement of the tribunal hearing.  

5	The structure of the decision separated out the narrative of complaints in the following way.  They dealt with the allegations of sexual harassment prior to 9 February 2002, they then dealt with the alleged comments made by X immediately prior to 9 and 10 February 2002, they then dealt with the alleged sexual assault on 9 and 10 February 2002 and finally they dealt with subsequent events at the practice.  Whilst this approach was no doubt a sensible one in terms of organising a body of material and enabling the reader to be led in an orderly fashion through the various events the subject of complaint, it is said on behalf of the appellant that the tribunal erred in that it treated these various elements as watertight compartments.  In particular it failed, when carrying out the difficult exercise of forming a judgment where the truth lay between two contending accounts in respect of the alleged serious sexual assault, to take any account of its findings of fact about the conduct of Y and the attitudes to that conduct of the appellant which had occurred prior to 9 February.  We will return to this subject later.  

6	We first address the complaints made by the appellant in respect of the tribunal’s approach to the alleged sexual harassment which occurred prior to 9 February 2002.  The tribunal heard evidence from a number of witnesses as to the nature and extent of sexual banter which was prevalent at the practice and which, to a large extent, emanated from Y.  It carried out an assessment of the reliability of the evidence of those various witnesses.  Unfortunately it failed to make any findings of primary fact which specified what comments they accepted had been made by Y and with what frequency.  The closest that we come to such a finding is in paragraph 31 of the Decision which reads in its entirety as follows:

“Although both Respondents denied that there had been any improper sexual harassment of the Applicant in relation to certain admitted comments, it was accepted that certain such comments, to which Ms Monaghan drew our attention, were made.”

It is impossible from the terms of that paragraph for the reader to know what the comments were which the tribunal found had been made.  As an appeal tribunal we were assisted by the representatives of the parties who had been at the tribunal hearing.  In particular Ms Monaghan drew our attention to what appears to be the reference made in that paragraph to comments to which she had drawn attention.  They are summarised in a footnote to the extensive written submission which she presented as the basis of her oral concluding submission at the tribunal hearing.  Taking that footnote and marrying them up with the witness statements to which the footnotes apparently refer, we have been able to identify certain specific comments.  It may well be that some or all of those comments were accepted by the tribunal as having been made but it is impossible from the terms of the decision to know whether all of them were accepted and, if not, which were.  

7	It appears from the way in which the tribunal then went on to deal with the legal question of sexual harassment by way of sexual comments that the tribunal did not find a need to make any such specific findings about the content of comments that were made.  In paragraphs 33 and 34 of the Decision they set out their analysis.  It is clear to us that their approach was that “sexual attention becomes sexual harassment only if it is ‘persisted in once it has been made clear that it is regarded by the recipient as offensive’.”  This passage is taken from paragraph 2 of the European Commissions Recommendation and Code of Practice on the Protection of the Dignity of Women and Men at Work 92/131/EEC.  The tribunal goes on, in paragraph 34 to conclude:

“On the Applicant’s own evidence and that of her supporting witnesses, there was simply no point at which such conduct was indicated as seen as offensive.  For those reasons, the Applicant’s complaint in relation to the alleged course of conduct prior to 9 July 2002 is dismissed.”

The tribunal had been referred to the case of Driskel v Peninsula Business Services Ltd [2000] IRLR 151.  That decision, in paragraph 12, contains comprehensive guidance as to the approach that the tribunal should take in a case such as the present.  It emphasises that the tribunal’s first task is to find all the facts that are prima facie relevant.  Only once those facts have been found is the tribunal called upon to make a judgment whether the facts as found disclosure apparent treatment of the complainant by the respondents which could potentially found a claim.  It goes on, in that paragraph, to set out guidance on how the tribunal should approach the judgments upon the primary findings of fact that it has to make.  In particular it emphasises the fact that it may not be necessary for a person first to complain about certain comments before a persistence with such comments can be categorised as sexual harassment.  It states:
“Thus, the act complained of may be so obviously detrimental, that is, disadvantageous to the applicant as a woman by intimidating her on undermining her dignity at work, that the lack of any contemporaneous complaint by her is of little or no significance.”

The guidance also emphasises that in making its judgment a tribunal should not lose sight of the significance in this context of the sex of not only the complainant but also that of the alleged discriminator.  It says as follows:

“Sexual badinage of a heterosexual male by another such cannot be completely equated with like badinage by him of a woman.  Prima facie the treatment is not equal:  in the latter circumstance it is the sex of the alleged discriminator that potentially adds a material element absent as between two heterosexual men.”

8	Unfortunately it appears to us that the tribunal in this case, by failing to make specific findings as to the comments that were made, failed completely to lay the ground work for what then should have occurred, namely the exercise by the tribunal of a judgment whether the making of those comments by a man to a woman was capable of being sexual harassment, notwithstanding the absence of any complaint, having regard to the explicit and detailed guidance given in the case of Driskel to which they had been referred.  Rather they seemed to have focused exclusively on that element in the Code of Practice and in the case law which indicates that there may be circumstances in which sexual comment only becomes sexual harassment if persisted in once complaint has been made.  By failing entirely to consider the converse, namely that some comments may be so egregious that they are self-evidently matters which prima facie constitute sexual harassment, the tribunal erred in its approach. 

9	It is clear to us that certain of the comments about which complaint was made were of a type which potentially could fall into this latter bracket.  In our judgment the tribunal failed properly to identify the comments made and thereafter to consider the question whether, in its context, those comments were capable of constituting sexual harassment, notwithstanding the fact that no contemporaneous complaint was made.  We therefore conclude that this part of the tribunal’s decision was flawed and cannot be allowed to stand.  

10	The next part of the tribunal’s decision concerned comments made immediately prior to 9 and 10 February 2002.  Insofar as they concern a specific comment made by X the tribunal did make a primary finding of fact and did then make an assessment as to whether it was capable of constituting sexual harassment.  In our judgment there is no basis for any ground of complaint against the tribunal’s decision in respect of this comment by X or indeed in respect of the allegation that he knew about the comments which Y made and did nothing about it.  In our judgment, therefore, insofar as the tribunal made findings in respect of alleged comments by X and/or his knowledge of the comments being made by Y there is no basis for a successful appeal and we therefore dismiss the appeal insofar as it attacks that aspect of the tribunal’s decision.  

11	The tribunal then addressed the question of the alleged sexual assault on 9 and 10 February 2002.  That was a matter of acute factual dispute.  It was common ground that both Y and the appellant consumed very large quantities of drink in the course of the evening.  It is also common ground that there came a time when the appellant had mislaid her room key and she went voluntarily to Y’s room.  It is also common ground that at some point during the early hours Y undressed himself and substantially undressed the appellant.  It is also common ground that at some point the appellant became distressed, left Y’s room, wandered the corridors of the hotel and was eventually taken in.  The police were called and asked her briefly what had happened.  Other than this the accounts substantially differ.  Y’s account is that the appellant was making overt sexual advances to him whilst they were in the bar, that they went to his room for sexual intimacy, that sexual intimacy occurred consensually but stopping short of full sexual intercourse.  His account was that at some point shortly after they went to his room she changed her mind and left in a distressed state.  Her account is that she has no recollection of events other than she went voluntarily with Y to his room in order that he might assist her get to her room, she having lost her key.  Thereafter there came a time when she came to in the room and found herself partially naked.  Her assertion is that any sexual intimacy which occurred between them must have been non-consensual because she would not have consented to such intimacy with Y.  Although she told the police in her written statement that the policeman who spoke to her had told her that she had been shouting that she had been raped and when asked by him if she wanted to take the incident further said that she did not because she did not want to lose her job, the conversation recorded by the police officer was that the appellant declined all offers of help and stated that she did not think she had been raped, assaulted, or held against her will.  

12	In essence, the dispute between Y and the appellant on this question boiled down to a matter of credibility.  The accounts of each of them had significant difficulties and inconsistencies.  They were both attempting to recollect events which had occurred when they were very much the worse for wear, having consumed large quantities of alcohol.  The tribunal was not unanimous in its findings of fact.  The majority concluded that it was persuaded by Y on the balance of probabilities that sexual contact had been consensual.  The minority member was not so persuaded.  Plainly this was a matter of some difficulty where each of the tribunal members had to come to a view, having balanced the strength and weaknesses of each of the accounts which they were assessing.  Unfortunately, it is clear that no consideration was given by any of the members of the tribunal to the background of this complaint, namely the assertion that over a period of two years Y had sexually harassed the appellant by reason of the comments which he had made to her and in her presence about which complaint was being made in these proceedings.  Furthermore, there was no attempt at this stage by any of the members of the tribunal to consider what, if any, adverse inference might be drawn from the fact that Y had failed entirely to put forward his account in response to the questionnaire, notwithstanding the fact that, for a period of seven months prior to the commencement of the hearing, he was ostensibly free from the immediate threat of criminal proceedings.  In any event, as we have already determined, the tribunal erred in its approach to the question whether the conduct of Y prior to this particular event had amounted to sexual harassment of the appellant.  Plainly a proper consideration of this issue might well, had it been fed into the process of assessing the truthfulness of their respective accounts, have made a difference to what was plainly a difficult decision.  

13	Accordingly, in our judgment, the tribunal erred in its approach to this particular issue.  The complaints against Y about his conduct prior to 9 February, whilst comprising separate specific complaints, essentially built up a picture of a person whose conduct was consistent in its sexual harassment of the appellant, albeit on 9 and 10 February it moved to a different plane.  It was an error on the part of the tribunal to divide the complaints up in such a watertight way that they failed to consider whether they might derive any assistance in assessing the truth of the allegations on 9 and 10 February from their conclusions in respect of the allegations of sexual harassment at work.  It follows, of course, from the fact that they misdirected themselves, as we have found on that prior issue, that their consideration of this particular allegation is also flawed and must be the subject of a successful appeal.  

14	As for the complaints of what happened subsequently, in our judgment the tribunal’s decision cannot be allowed to stand.  Their assessment of what happened thereafter was intimately linked with their conclusions that the appellant’s complaints of sexual harassment failed and so the partnership was not responsible for any such conduct.  Had the tribunal decided otherwise then the whole context of what happened subsequently would be different.  It therefore follows, in our judgment, that the complaints about what happened subsequent to the events of 9 and 10 February must go back to a tribunal for determination in the light of that tribunal’s determination of the complaints made in respect of the sexual harassment said to have occurred as a result of Y’s actions both prior to and during the events of 9 and 10 February 2002.  

15	It follows, therefore, that we uphold the appeal by the appellant against the tribunal’s decision insofar as it concerned the conduct of Y and the response of the partnership to her complaints following the events of 9 and 10 February.  We dismiss the appeal insofar as it is against the tribunal’s rejection of the appellant’s case against X as an individual deriving from the events prior to 9 February 2002.  The matter will be remitted to a differently constituted tribunal for a further hearing on these outstanding matters.