Appeal No. UKEAT/0468/04/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal
On 10 December 2004
Judgment delivered on 17 March 2005

Before
THE HONOURABLE MR JUSTICE RIMER
SIR ALISTAIR GRAHAM KBE
BARONESS M T PROSSER

MRS S E LOOSLEY	APPELLANT

(1) MR R MOULTON 
(2) NORFOLK PROBATION BOARD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR WILLIAM JOSLING
(of Counsel)
Instructed by:
Messrs Barr Ellison Solicitors
39 Parkside
Cambridge
CB1 1PN	
For the Respondents	MR RICHARD HIGNETT
(of Counsel)
Instructed by:
Messrs Hatch Brenner Solicitors
4 Theatre Street
Norwich
NR2 1QY

THE HONOURABLE MR JUSTICE RIMER

1.	This appeal is against part of the decision of an employment tribunal sitting at Norwich over six days in March 2004 and chaired by Mr C R Ash. The tribunal’s extended reasons were sent to the parties on 1 April 2004, when the decision was entered in the register. The applicant was Mrs Suzanne Loosley and the respondents were the Norfolk Probation Board (“the Board”), her former employer, and Mr Robert Moulton, a former colleague in that employment. Mrs Loosley’s claims were for compensation for sex discrimination and unfair dismissal. Her unfair dismissal claim was dismissed and there is no appeal against that. Her sex discrimination claim was also dismissed and it is against that dismissal that Mrs Loosley brings this appeal. Mrs Loosely was represented before us, as before the tribunal, by Mr William Josling. The respondents were represented before us, as before the tribunal, by Mr Richard Hignett. 

2.	Mrs Loosley’s sex discrimination complaints were based on allegations of harassment of her by Mr Moulton. It was accepted before the tribunal that, if the claims were established, the Board, as her employer, was also responsible: see section 41(1) of the Sex Discrimination Act 1975 (“the SDA”). The Board did not seek to rely on the statutory defence provided by section 41(3). The tribunal’s conclusion, however, was that Mr Moulton’s conduct towards Mrs Loosley did not amount to discrimination against her on the ground of her sex. Mr Moulton had in fact admitted most of the conduct of which Mrs Loosley complained and the main ground of appeal is that it is said the tribunal’s rejection of her claim was perverse, including their decision that Mr Moulton’s admitted conduct did not amount to unfavourable treatment on the ground of her sex. Further grounds of appeal are that it is said that, in the light of the evidence before it, the tribunal made an inadequate finding that Mrs Loosley had not objected to the relevant conduct at the time and also failed to make specific findings in relation to certain other conduct of which she complained. The respondents resist all the grounds of appeal. 

The findings and conclusion of the employment tribunal
3.	The tribunal’s reasons extend to 56 paragraphs, although its findings on the facts critical to Mrs Loosley’s sex discrimination claim are relatively modest.  

4.	Mrs Loosley qualified as a probation officer in 1996. She joined the Board at its 
King’s Lynn office, where she remained until she resigned on 7 April 2003. She was good at her job. Mr Moulton was in the same office and in 2001 took up the post of acting Senior Probation Officer, later becoming her line manager. The tribunal made the following finding about life in the office at this early stage:

“16. … for a considerable length of time Mr Moulton, [Mrs Loosley] and a number of people who have given evidence … worked together effectively on the same grade. We are satisfied there was a considerable amount of general banter with some sexual innuendo included. Indeed, we find it unrealistic to suggest that in an office where there are both men and women and banter and humour were part of the culture that there would never at any stage be some references that could be taken to have a sexual connotation. We hope we live in the real world.”
 
5.	The tribunal said the banter between Mrs Loosley and Mr Moulton stayed very much the same after Mr Moulton became her line manager. They explained, in paragraph 1, that Mrs Loosley had, however, complained about a number of incidents of conduct by Mr Moulton:

 “… concerning hair pulling, tying [her] scarf around her face and pulling the scarf on the back of her chair, making remarks about [her] being ‘on the game’ in the street and outside Boots the Chemist; some remarks about personal appearance; the mimicking of [her] speech; a rather bad taste alleged joke about telling a police officer her car was not taxed and matters of that ilk. They are alleged to have happened over a period of time, to have been offensive, to have demeaned [her] and to have been on the grounds of her sex in the sense that a man would not have been treated similarly.”

6.	The tribunal explained in paragraph 3 that the respondents denied the allegations. We do not understand this to mean that they denied that any of the alleged incidents had occurred and the tribunal recorded that Mr Moulton admitted that he had acted towards Mrs Loosley in what they described as a crass, unfortunate and inadvisable way. They also recorded, in paragraph 11, that he had “admitted to a number of matters that [Mrs Loosley] had alleged” although they did not spell them out. We record, therefore, that in his response to Mrs Loosley’s original complaint to the Board about his conduct, Mr Moulton admitted that he had twice made references to Mrs Loosley being “on the game”, had commented to her on a few occasions that she looked as if she was “on a street corner”, lightly tugged her hair on a few occasions and had occasionally removed her scarf from the back of her chair, on one occasion placing it around her eyes as she typed. His explanation of the “on the game” and “street corner” comments was that she had (as the tribunal found) proclaimed a wish, during an exchange of the type of banter that the tribunal found to be part of the office culture in which she and Mr Moulton worked, that in an ideal world she would like to be the madam of a high class brothel.  Mr Moulton’s defence of his conduct was that (i) at no stage did she make it clear that it was unwanted, and (ii) there were no circumstances in which he should have realised that it was such as to make her feel harassed, disadvantaged or bullied. The tribunal said that Mr Moulton’s claimed perception to that effect was supported by other witnesses called by the respondents. 

7.	Whatever may have been Mr Moulton’s perception of the effect of his conduct, Mrs Loosley appears to have viewed it differently. She complained about it to the Board on 24 July 2002. The tribunal did not identify her then complaints in detail, but said their general nature was as they had explained in paragraph 1 (quoted above). They were satisfied that the complaints she made did not amount to complaints of gross misconduct. In September 2002, she was signed off work for two weeks, apparently suffering from stress. In the same month, Ms Blackman interviewed all members of staff who could speak to the matter of Mrs Loosley’s complaints and produced a report. The tribunal found that Mrs Loosley did not trust Ms Blackman with regard to the handling of her complaints, but they also found that, contrary to Mrs Loosley’s repeated assertions otherwise, Ms Blackman investigated the complaints thoroughly and objectively. Mr Moulton remained at King’s Lynn during the investigation but Mr Hornby became Mrs Loosley’s line manager in his stead. 

8.	The tribunal said that Ms Blackman’s investigation was a disciplinary procedure but that she passed the decision making function - that is, what to do with Mr Moulton - to Miss Coker. Mrs Loosley’s expressed wish was that she wanted his behaviour to stop. The tribunal found that, following the making of the complaint in July 2002, his allegedly offensive conduct did stop and that he had since done nothing for which he could be criticised. 

9.	Miss Coker produced a report on 3 October 2002. The tribunal said that Miss Coker had properly found that Mrs Loosley had catalogued a significant number of examples of dubious behaviour by Mr Moulton, and they again said that Mr Moulton had admitted a number of them, although, again, they did not identify which. His position was that he had intended them to be humorous and did not intend to cause any offence. Miss Coker’s finding was that Mrs Loosley had not found them humorous and had been upset by them. The tribunal said that Miss Coker also found that Mrs Loosley did not make clear her objections to Mr Moulton’s conduct. The tribunal made a similar finding. The tribunal said that Miss Coker had come to the reasonable belief that “Mr Moulton failed to take account of his organisational power and his personal power as a man using humour with sexual overtones to a woman he managed.” They said of the problem that Miss Coker faced that:

“[Miss Coker] then had to decide what to do, bearing in mind the culture of banter and humour, Mr Moulton being in a position of management, and a team, the majority of whom in respect of nearly all the incidents, do not support Mrs Loosley’s version of events, certainly with regard to whether she found them unacceptable and whether she complained. Mr Butterworth, whose evidence we accept and was a friend of them both, himself did not realise that Mrs Loosley found anything objectionable and she did not as far as he was aware ever complain.”

10.	The tribunal said the decision Miss Coker made was against either a formal disciplinary hearing against Mr Moulton or a formal verbal warning but was in favour of a so-called eight point plan. The tribunal did not explain what that involved but said that, in the light of the events at the time, the decision was a reasonable one. Whether it was part of the plan or not, Miss Coker informed Mr Moulton that if he ever carried on in the same way he would have no future with the Board. 

11.	Mrs Loosley, however, was not prepared to go along with Miss Coker’s plan and she complained vigorously about the idea. She was signed off sick for three weeks on 
16 October 2002, on the basis of stress at work, and never returned to work for the Board. On 23 October, she took out a grievance which was heard by Mr Graham on 11 November. The tribunal do not explain its outcome with precision, but we understand that Mr Graham’s proposal was that Mrs Loosley should resume work at King’s Lynn, where the Board would help to make things better for her there but that it would require her cooperation. Mr Graham wrote to Mr Moulton on 20 December informing him that his conduct was not acceptable. 

12.	Mrs Loosley was dissatisfied with the outcome of her grievance, which was reported to her on 14 November. Her stance was that she could not see how she could be protected at King’s Lynn and that she needed reassurance on the point. She appealed to a full board chaired by Dr Winstanley. The appeal hearing took place on 16 January 2003. The appeal board apparently agreed with her appeal on some matters but not on others. The tribunal found that steps were taken to try to get Mrs Loosley back to work at King’s Lynn, but she was only prepared to return there if Mr Moulton was moved. She resigned on 7 April 2003. In the meantime, she had presented her originating application to the employment tribunal on 
29 October 2002. 

13.	In paragraph 11 of their reasons, the tribunal identified the real difference between 
Mrs Loosley’s evidence and that of Mr Moulton as being whether or not she had at any time complained about, or shown her objections to, any or all of his conduct. They explained that, where there was a conflict between her and his evidence, they much preferred his, expressing criticism of Mrs Loosley’s tendency to exaggeration and inaccuracy and her willingness to make claims which the tribunal regarded as gratuitous and unfounded. They also found, in paragraph 17, that she was no shrinking violet. They found she was well able to take the cudgels up on her own behalf, was equally able to give a good account of herself and “was not the quiet member of the team.” We have referred to Miss Coker’s finding that Mrs Loosley did not regard Mr Moulton’s conduct as humorous but had found it upsetting. The tribunal’s assessment of that matter, in paragraph 24, was as follows:

“24. … [Miss Coker’s] finding [on] that is favourable to Mrs Loosley. Our finding is that much of the behaviour that Mrs Loosley complained of to us, as a Tribunal, she did not find it as offensive as she now asserts. We think there are a number of possible explanations for her complaint. We do not propose to speculate, but there is a degree of exaggeration by Mrs Loosley. From a management point of view much of the behaviour of Moulton was unacceptable, particularly the comments about prostitution and the allusion to the physical appearance of both Mrs Loosley and Mr Moulton. We agree that Managers at their peril make risqué comments about sexually explicit matters. However, one has to look at the jewel in its setting. There was a culture, (the evidence is overwhelming in our view) of banter, some of it sexual, and [Mrs Loosley] herself has had to admit, because there is a lot of evidence for it, that she herself said that she would, in a perfect world, like to be the madam of a high class brothel. She is making the joke at her own expense. She says other people should not make jokes at her expense. She is not making a joke at someone else’s expense. There is something in that. But it is not insignificant that [Mrs Loosley] herself, to put it mildly, has put herself in a position where her credibility is in doubt when she objects to silly off the cuff remarks about prostitution. Let us put that in context. Mr Moulton would down the window of his car in King Street and said something about ‘how’s business’ and made some other remark when he met her standing outside Boots the Chemist. Silly remarks, and possibly upsetting remarks and well capable of being harassment, but it does take two to tango and we cannot understand if the remarks were as offensive as [Mrs Loosley] now says they are, why she did not object to them strongly at the time. Similar comments could be made in respect of the scarf and hair incident. [Mrs Loosley] is not someone who is reluctant to come forward and give her point of view. But we find it remarkable that if these events were so upsetting and bullying as she now says, that she did not say to Mr Moulton ‘don’t pull my hair again, don’t do that to my scarf, I don’t like it. I will make a complaint if you do not keep your hands to yourself’, or words to that effect. She never did anything like that.”

14.	In rehearsing the opposing arguments, the tribunal recorded in paragraph 39 that there was “some evidence that in the case of some of the items [of complaint] others might have realised that Suzanne Loosley did not like what was happening. We have made our findings on that and we do not comment further.” We understand that to be a reference to the finding at the beginning of the passage from paragraph 24 that we have just quoted.

15.	The tribunal expressed their conclusions on Mrs Loosley’s sex discrimination claim in paragraphs 43 to 47. They referred first to section 1(2)(a) of the SDA, which provides that:

“(2) In any circumstances relevant for the purposes of a provision to which this subsection applies, a person discriminates against a woman if-
(a)	on the ground of her sex, he treats her less favourably than he treats or would treat a man, …”

and they then referred to section 6, in Part II of the SDA, one headed “Discrimination in the Employment Field”. Section 6(2) provides, so far as material:

“6. Discrimination against applicants and employees
…
(2) It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her-
…
(b)	by dismissing her, or subjecting her to any other detriment.”

16.	The tribunal then recorded that they had been referred to the summary of the applicable law on sexual harassment in paragraph 306 of Harvey on Industrial Relations and Employment Law and to the decision of the House of Lords in MacDonald v Advocate General for Scotland [2003] IRLR 512. They said it was not for the alleged offender to decide whether the conduct in issue was demeaning or detrimental to the complainant but that it was for, in this case, Mrs Loosley to decide whether she finds the conduct unacceptable or bullying. They then expressed their conclusions as follows:

 “46. … However, we do point out that the less objectively offensive the conduct or, the more usual it is in the culture of the Organisation, the more difficult it is for the alleged victim to establish it if she does not indicate in some reasonable form that she does not like the conduct complained of. If one looks at the authorities cited by counsel on both sides, it would be immediately apparent that the allegations of the words used and indeed the acts complained of are much more unequivocal and [sic: should read ‘than’] the various matters in this case. There are overtly sexual words in respect of the prostitution type allegations, but they again must be read in context.
47.  We do not go along entirely with Mr Hignett. We are satisfied on balance that [Mrs Loosley] did suffer some minor detriment in this case. However, we are not satisfied that it was unwanted, that she made this clear to Mr Moulton, that the conduct taken as a whole amounted to more than what Mr Moulton admitted, and admitted very candidly in fairness to him, over a period of time. We are satisfied quite simply that the claim is not made out. But further, we are not satisfied in any event that [Mrs Loosley] was discriminated against on the grounds of her sex. We rely not only on MacDonald, but also on the case of Shamoon v Chief Constable of Royal Ulster Constabulary [2003] IRLR 285 HL. Why was [Mrs Loosley] treated the way she was? [She] was treated the way she was because there were a group of people in the office who used banter, sexual innuendo to a degree which was perhaps unwise and was certainly unwise when Mr Moulton became Senior Manager. It does not follow that because the behaviour continues that per se it becomes sexual harassment unless it can be shown that the activity concerned is only being used against women and that the person concerned would not use innuendo or remarks against men. So we are not satisfied on two grounds. First, there was no complaint. Secondly, we are not satisfied that it was discriminatory. It was not caused by her sex.”

17.	We have summarised the material parts of the tribunal’s findings and conclusion fairly fully so as to identify the background against which this appeal arises. In fact, however, the critical findings and conclusion fall within a small compass. They are as follows: (i) the background against which the incidents of alleged harassment arose was one in which a culture of banter, including remarks carrying a sexual innuendo, was part of the office culture in which Mrs Loosley and Mr Moulton worked; (ii) Mrs Loosley was herself a participant in that culture, apparently expressing an intentionally humorous view that, in a perfect world, she would like to be the madam in a high class brothel; (iii) Mr Moulton engaged in conduct directed at Mrs Loosley, including pulling her hair, teasing her by playing with her scarf, remarking on her appearance, making purportedly joking remarks to the effect that she was a prostitute, mimicking her speech and relating an apparently tasteless joke about an untaxed car and a police officer; (iv) Mrs Loosley did not satisfy the tribunal that his conduct was unwanted, and they found it was not unwanted; (v) she did not she raise any complaint about it to Mr Moulton; (vi) she did, however, suffer minor detriment because of his conduct; (vii) his conduct was anyway not discriminatory in a way outlawed by the SDA because it was the product of the culture which prevailed in the office. The tribunal summarised their conclusions by saying that the claim failed on two grounds, (i) because there was no complaint, and (ii) because the unfavourable treatment of Mrs Loosley was not on the ground of her sex.

The appeal to this appeal tribunal
18.	Mr Josling, for Mrs Loosley, does not challenge the findings of fact made by the tribunal so far as they go. The primary ground of appeal is that, given those findings, the tribunal’s decision that Mr Moulton’s conduct towards Mrs Loosley was not on the ground of her sex was perverse. The notice of appeal does, however, complain that the tribunal failed to make specific findings on certain other allegations that had been made by Mrs Loosley and also complains about other findings that they did make. Mr Josling developed those complaints in his submissions. We will deal with those matters first before coming to the main challenge to the tribunal’s decision.

19.	Mr Josling places reliance on a complaint by Mrs Loosley that on one occasion Mr Moulton persisted in asking her (and Ms Judith Wells, another colleague) what they thought about his looks, asking whether them whether he was attractive (he is said also to have asked the same question separately of each of Miss Starling and Miss Cooper, both of whom independently responded that he was “gorgeous”). Mrs Loosley said the questions were put to her one morning in the office and that when she left the building for a cigarette Mr Moulton followed her and took the questioning up again. Mrs Loosley made it plain, however, that she did not intend to answer the questions. 

20.	Mr Moulton did not dispute that he had sought the staff’s (including Mrs Loosley’s) opinion of his physical appearance, although he denied that he followed Mrs Loosley when she left the building and there resumed the questioning. His case was that these inquiries of Mrs Loosely (and others) were just another example of the office humour. He said they had been prompted by a comment from his partner, Diane, that he was not “classically handsome”, an opinion he had relayed to the office staff. He said that on an occasion when Diane called into the office, Mrs Loosley commented on the matter to her in a way which Mr Moulton said indicated her amusement about it. 

21.	We understand that the opposing accounts about this incident were in evidence before the tribunal and we presume that this complaint is one to which they may have been referring in paragraph 1 of their reasons (“some remarks about personal appearance”) and to which they clearly were referring in the last part of the fifth sentence of paragraph 24 (“… the allusion to the physical appearance of both Mrs Loosley and Mr Moulton”) (our emphasis). We are satisfied that they had the complaint in mind and we presume that, as between the differences between Mrs Loosley and Mr Moulton as to the extent of the exchanges, they preferred Mr Moulton’s evidence: in paragraph 11, they made plain that, where there was a conflict of evidence between the two of them, they “much” preferred his evidence. In our view, whilst the incident was another example of apparently childish and immature behaviour on the part of Mr Moulton, it was a minor one which did not merit receiving any prominence in the tribunal’s reasons. We accept that it would have been helpful for the tribunal to have considered this particular matter expressly and to have made concrete findings on it, but we are also satisfied that they regarded it as just another example of the “banter” to which they were referring in paragraph 47 of their reasons. Whether they were entitled to conclude that, in so far Mrs Loosley was a victim of that sort of banter by Mr Moulton, she was not a victim of sex discrimination, is a matter to which we will come. We do not, however, regard the failure to deal specifically with this particular allegation as by itself an omission which undermines the soundness of the tribunal’s overall conclusion. 

22.	A further complaint that Mr Josling makes about the tribunal’s findings is their omission to deal with an allegation that Mr Moulton accused Mrs Loosley of “sleeping around.” This is said to have been proved by the evidence of Ms Judith Wells and Mr David Bertram, who worked in the same office. Ms Wells said in paragraph 9 of her statement:

“9. I also remembered an incident when [Mr Moulton] made some comment about [Mrs Loosley]  sleeping around. David Bertram was also present. I felt the remark was totally out of order and I believe that David Bertram was very uncomfortable. It was clear that [Mrs Looseley] was upset by it. I told [Mr Moulton] that the remark was inappropriate. I do not remember whether or not this was in the context of [Mrs Loosley’s] wedding anniversary as I find it hard to remember dates of incidents with precision, after such a long period of time”

23.	The attribution to Mr Moulton of “some comment” to this effect is less than precise and nor could Ms Wells even remember the context in which the alleged comment was made. Mr Bertram’s statement does not mention the “sleeping around” allegation in terms. He talks only in guarded terms of some unexplained “incident”. He said:

“5. I was aware at the time that [Mrs Loosley] was unhappy with her job. At the time the incident happened I was not aware [Mrs Loosley] was unhappy about [Mr Moulton’s] behaviour towards her. She did not complain to me contemporaneously of the events.
6. My recollection of the incident which triggered the complaint is quite vague. I was in the same room when [Mr Moulton] was talking to [Mrs Loosley] and [Ms Wells] but I was not party to the conversation. I recall it being in connection with [Mrs Loosley’s] wedding anniversary and there being some sexual innuendo.”

24.	Mr Moulton’s stance at the hearing before the tribunal was that he flatly denied making any disparaging comments about Mrs Loosley’s marital fidelity. The opposing accounts were the subject of cross-examination. It is correct that the tribunal do not make any express finding about this allegation, and again we consider it would have been better if they had. But, again, we infer that this particular allegation was one of the matters in dispute between Mrs Loosley and Mr Moulton in respect of which they preferred his evidence to hers. We infer that the tribunal rejected this particular allegation. 

25.	We refer next to a complaint in paragraph 6(iv) of the notice of appeal that the tribunal preferred the evidence of Mr Moulton to that of Mrs Loosley. They certainly did and they made clear why. They had to make findings on issues of fact where there were differences between the witnesses and they were entitled, for the reasons they gave, to prefer Mr Moulton’s evidence. There is no substance in this complaint. The jurisdiction of this appeal tribunal is confined to appeals on errors of law by the employment tribunal. The tribunal made no error of law in preferring Mr Moulton’s evidence.

26.	Paragraph 6(iv) of the notice of appeal also asserts that, in making their finding that Mrs Loosley did not object to Mr Moulton’s conduct at the time of its commission, the tribunal made no reference in their reasons to the evidence of Ms Wells and Mr Bertram. It is said that their evidence supported Mrs Loosley’s case that she did object. Ms Wells’s witness statement includes a generalised statement in paragraph 7 that “[s]he made it very clear that she disliked his behaviour on more than occasion” but neither that observation nor anything else in her statement proves that she made it unequivocally clear to Mr Moulton that she objected to his conduct, whatever she may have said or conveyed to others. We do not overlook that, in paragraph 7, Ms Wells also asserted that “If [Mr Moulton] had been more sensitive he would not have continued” but we regard that as less than solid evidence to the effect that Mrs Loosley unequivocally indicated her objections to Mr Moulton. Nor does Mr Bertram’s statement appear to assert that Mrs Loosley ever did so. However, if and to the extent that these two witnesses, who both gave oral evidence and were cross-examined, gave evidence that was supportive of Mrs Loosley on this point, the tribunal also had a good deal of other evidence on this issue, including the evidence of Mrs Loosley and Mr Moulton themselves, the evidence of other witnesses and documentary evidence in the shape of the interviews carried out by Ms Blackman when conducting her investigation into Mrs Loosley’s complaints. That evidence apparently went both ways on the question of whether Mrs Loosley voiced her objections to Mr Moulton and the tribunal had to, and did, make a finding on the matter.

27.	The tribunal were well aware of the evidential conflict on this issue. In paragraph 3 of their reasons, after saying that Mr Moulton at no stage perceived that his conduct might be regarded as objectionable by Mrs Looseley, the tribunal said that “that perception is shared by the overwhelming majority of the witnesses in respect of most of the incidents.” Those observations appear to recognise that the evidence was not all one way. In paragraph 11, the tribunal identified the real difference between Mrs Looseley and Mr Moulton as being whether she had ever complained or shown her objection to his conduct. That issue was, therefore, regarded as a central factual one, and in the same paragraph the tribunal explained why they preferred Mr Moulton’s evidence to Mrs Looseley’s. In paragraph 24, from which we have quoted at length, the tribunal made a clear finding that Mrs Loosley never made any objection to Mr Moulton about his conduct, and in paragraph 25 they recorded that Miss Coker, in her report, had similarly concluded that Mrs Loosley had not made clear her objections to that conduct. In paragraph 39, the tribunal recognised that

“… there is some evidence that in the case of some of the items [complained of] others might have realised that Suzanne Loosley did not like what was happening. We have made our findings on that. We do not comment further”

28.	The position is, therefore, that it appears that the tribunal were well aware of the evidential differences before them. They referred to them but ultimately made a clear finding of fact adverse to Mrs Loosley. It is correct that they did not explain which pieces of evidence were supportive of Mrs Loosley on this point and why they were rejecting them. We have in fact been shown no statement or notes of evidence from anyone positively supporting the case that Mrs Loosley objected to Mr Moulton about his conduct. Whilst, once again, we consider it would have been preferable if the tribunal had, if only in a sentence or two, explained why it was rejecting any evidence to such effect in preference to the evidence to the contrary effect, we are unable to accept that the omission to do so causes the tribunal’s reasons to fail to match up to the standard of so-called Meek compliance (see Meek v City of Birmingham District Council [1987] IRLR 250). In our view the tribunal have sufficiently articulated their reasons for finding against Mrs Loosley on this point: their reasons were that they preferred and accepted the evidence before them that she did not make clear to Mr Moulton that she objected to his conduct. There plainly was evidence before them to that effect and they were entitled to accept it. We consider that there is nothing in this ground of complaint about the tribunal’s decision either. 

29.	Next, it is said in paragraph 6(vi) of the notice of appeal that the tribunal made a perverse finding in paragraph 24 that “much of the behaviour that Mrs Loosley complained of to us, as a tribunal, she did not find as offensive as she now asserts.” This is said to be perverse because, as the tribunal recorded in the same paragraph, Miss Coker had found that Mrs Loosley did find the conduct to be upsetting. This is an absurd point. Miss Coker’s finding did not bind the tribunal. The tribunal were fully entitled to make their own finding on the matter in the light of all the evidence they had read and heard and they duly did so.

30.	Finally, it is said, in ground 6(vii) of the notice of appeal, that the tribunal’s remarks in paragraph 24 that “it takes two to tango” and that “one has to look at the jewel in its setting” involved errors of law. In our view, they did not. The tribunal were there using two familiar English phrases but were not proffering them as reflecting any guiding principles of English law. The latter remark was simply to the effect that the facts had to be looked at in their context, which we would as reflecting a sound approach. The former remark, in the context it was used, was merely a shorthand way of pointing out that, on one view, “the prostitution remarks” were a direct response to Mrs Loosley’s own remarks about her ambitions in an ideal world.

31.	We come to now the real ground of appeal, namely that given Mr Moulton’s admissions as to his conduct towards Mrs Loosley, the tribunal’s decision was perverse. Mr Josling said that Mr Moulton’s conduct towards Mrs Loosley was manifestly gender-specific so that the tribunal’s conclusion in paragraph 47 that the treatment to which she was subjected was not on the ground of her sex was one which no reasonable tribunal could reach. No such remarks, or conduct, would be made to, or visited upon, a man, although we record that there was apparently evidence before the tribunal that Mr Moulton’s idea of office humour included the regular patting of a bald male colleague on the head, which can perhaps be compared to the hair-pulling to which Mrs Loosley was subjected. A male employee at the Board would not, however, have had remarks addressed to him to the effect that he was “on the game” nor would he have been taxed with questions about Mr Moulton’s physical attractiveness. The remarks were, it is said, explicable only because of Mrs Loosley’s sex and amounted to less favourable treatment of her on that ground. 

32.	In this context, we were referred, as was the tribunal, to the decision of the House of Lords in MacDonald v Advocate General for Scotland [2003] IRLR 512, and in particular to the observations about sexual harassment by Lord Nicholls of Birkenhead in paragraphs 14 and following. In paragraph 15, Lord Nicholls explained that conduct familiarly known as “sexual harassment” will only amount to less favourable treatment for the purpose of the SDA if it is being used as shorthand for conduct directed at someone because of that person’s sex. For those purposes the reason for the harassment must be the victim’s sex. Lord Nicholls said:

 “15. … A claim under the [SDA] cannot get off the ground unless the claimant can show she was harassed because she was a woman. A male employee may make office life difficult for a female employee, not because she is a woman, but because he objects to having anyone else in the office. He would be equally unwelcoming to a male employee. Harassment of a woman in these circumstances would not be sex discrimination.
16. In some cases there are suggestions of a different approach. It has been suggested that if the form of the harassment is sexual, that of itself constitutes less favourable treatment on the ground of sex. When the gender of the victim dictates the form of the harassment, that of itself, it is said, indicates the reason for the harassment, namely, it is on the ground of the sex of the victim. Degrading treatment of this nature differs materially from unpleasant treatment inflicted on an equally disliked male colleague, regardless of equality of overall unpleasantness: see Lord President Emslie in Strathclyde Regional Council v Porcelli 
[1986] IRLR 134, 136-138. Because the form of the harassment is gender-specific, there is no need to look for a male comparator. It would be no defence to a complaint of sexual harassment that a person of the opposite sex would have been similarly treated: see Morison J in British Telecommunications plc v Williams [1997] IRLR 668, 669.
17. In agreement with Ward L.J. in Smith v Gardner Merchant Ltd [1998] IRLR 510, 516, I respectfully think that some of these observations go too far. They cannot be reconciled with the language or the scheme of the statute. The fact that the harassment is gender-specific in form cannot be regarded as of itself establishing conclusively that the reason for the harassment is gender based: ‘on the ground of sex’. It will certainly point in that direction. The gender-specific form of the harassment will be evidence, whose weight will depend on the circumstances, that the reason for the harassment was the sex of the victim. In some circumstances the inference may readily be drawn that the reason for the harassment was gender-based. A male employee who subjects a female colleague to persistent, unwelcome sexual overtures may readily be inferred to be doing so on the ground of her sex.”

33.	Those passages in Lord Nicholls’s speech emphasise how important it is for the fact-finding tribunal in a case involving allegations of “sexual harassment” said to amount to unlawful sex discrimination to identify the reason for the harassment. It will only be if that reason is the victim’s sex that it will amount to relevant unfavourable treatment. If the harassment is of a gender-specific nature, that may invite the inference that the victim’s sex is the reason for it; and Lord Nicholls provides an example of a type of case in which that inference will readily be drawn. In less obvious cases, the fact that the harassment is of a gender-specific nature will at least provide evidence that the reason for it is the victim’s sex, but the task of the fact-finding tribunal will remain one of weighing all the evidence and then asking itself what was the reason for the treatment of which complaint is made. It does not inevitably follow that because the treatment is of a gender-specific nature, the reason for it was the victim’s sex. The decision in Pearce v Governing Body of Mayfield Secondary School [2003] IRLR 512, heard and decided together with MacDonald, provides a good example of a case in which the gender-specific harassment of a woman did not amount to less favourable treatment on the ground of her sex, but rather on the ground of her sexual orientation.

34.	The tribunal in the present case had MacDonald cited to them and their observations in paragraph 47 reflect that they had asked themselves the right question, namely why was Mrs Loosley treated by Mr Moulton in the way she was. Their answer to that question is that her treatment was simply a product of the banter and sexual innuendo which they found to be the common currency of office life within the Board at King’s Lynn. They in terms found that it was not treatment visited on Mrs Loosley on the ground of her sex. We interpret the finding to be to the effect that the banter and innuendo were freely exchanged between all members of the office, men and women alike, and that Mrs Loosley became a victim of Mr Moulton’s banter and innuendo not because she was a woman but because she was a member of the office group which participated in the banter.

35.	We are invited to find that that conclusion was perverse. The appeal has caused us some anxiety, but we are not satisfied that the conclusion was perverse. In particular, what we might summarise as “the prostitution” remarks, being remarks which taken out of context would readily be viewed as being gratuitously offensive, were an obvious attempt at follow-up humour on the part of Mr Moulton which was directly inspired by Mrs Loosley’s own confession (no doubt also intended to be humorous) of her ambition to be the madam of an establishment whose business was that of the provision of the services of prostitutes. Viewed in that context, Mr Moulton’s remarks are understandable. They may not have been wise, and they may have caused Mrs Loosley offence, but we consider that the tribunal were entitled to conclude that they were, in effect, simply an extension of the office banter in which she was herself apparently a willing participant. In addition, in the context in which the remarks were made, we can understand how the tribunal came to the view that they were not directed at Mrs Loosley in a way which ought reasonably to be perceived as either being, or as intended to be, demeaning of her as a woman. They were simply Mr Moulton’s idea of humour, his particular choice being responsive to what had fallen from Mrs Loosley. As for the hair tugging and scarf incidents, the tribunal do not say much about them. These incidents would appear to be little more than examples of relatively minor, and somewhat childish, horseplay, but we would not regard them as obviously amounting to actions of a gender-specific nature. We can well understand how Mrs Loosley might not have been amused by them, but there is nothing in the tribunal’s findings to the effect that these were major matters. They may well have been irritating to Mrs Looseley and it is just the sort of attempted humour which we can understand probably was. Mr Moulton was unwise to engage in such horseplay and he should have remembered the need to respect the boundaries of others. The tribunal’s finding, however, was that the matters complained of were not “unwanted” and that they caused Mrs Loosley only minor detriminent. Looking at the incidents overall, we feel unable to conclude that the tribunal arrived at a perverse decision in concluding that they were not in the nature of acts targeting Mrs Loosley because she was a woman. The tribunal’s finding was, in effect, that they were attempts at humour targeted at her as a member of the office team who happened to be a woman. In our view that was a conclusion to which they were entitled to come, whether or not other tribunals might have come to a different one. 

36.	We do not, therefore, consider that the tribunal arrived at a perverse decision in concluding that Mr Moulton’s conduct towards Mrs Loosley was not “on the ground” of her sex. We comment that in the MacDonald case, a majority of their lordships make it clear that even in so-called sexual harassment cases, the tribunal must consider the comparison of how the employer had treated, or would treat, a person of the other sex: see, for example, Lord Hobhouse of Woodborough, at paragraph 110; Lord Scott of Foscote, at paragraphs 117 and 118; and Lord Rodger of Earlsferry, at paragraph 182 and following. It is not clear that the tribunal formally engaged upon any such comparative exercise, but we would not regard their decision as flawed for that reason. In Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285, to which they also referred, Lord Nicholls of Birkenhead made it clear that it will not always be necessary for an employment tribunal to endeavour to focus on a comparator and that in many cases it will be more appropriate for it to answer “the reason why” question first. If the answer to that question is that the alleged unfavourable treatment was not on the ground of the victim’s sex, there will be no need to go further and engage in the consideration of how a comparator was, or would have been, treated. It appears that this is the course which the tribunal adopted in the present case.

37.	In our view the complaints about the tribunal’s reasons do not disclose any error of law by the tribunal. We dismiss Mrs Loosley’s appeal.