Appeal No. UKEATS/0026/06/MT

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HF

	At the Tribunal
	On 20 March 2007

Before
THE HONOURABLE LADY SMITH
MISS P AYRE FIPM FBIM
MR P HUNTER

MS KIM HOOD	APPELLANT

CCS LIMITED	FIRST RESPONDENT

MR JOHN DAVIE	SECOND RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant	MR D LOGAN
Advocate 
Instructed by:
Messrs J Myles & Co Solicitors
7-9 South Tay Street
DUNDEE
DD1 1NU

For the Respondents	MR K GLASS
Solicitor
Messrs Blackadders Solicitors
30 & 34 Reform Street
DUNDEE
DD1 1RJ

SUMMARY

The claimant’s complaint of sexual harassment was held to be time-barred, the last events complained of and founded on by the claimant having occurred more than 3 months prior to the presentation of her claim.  On appeal, the claimant sought to rely on her employer having referred to her as being “a junkie bastard” and “an evil woman” to others in the period between the date of the last contact between them and presentation of her claim.  Appeal dismissed, the Employment Appeal Tribunal holding that the Tribunal had not erred in failing to find a case of sexual harassment that was not presented to them and which, in any event, did not arise from the findings made.

THE HONOURABLE LADY SMITH

Introduction
1.	The appellant alleged that she had suffered sexual harassment at work perpetrated by the second respondent. Following a hearing before the Employment Tribunal, sitting at Dundee, Chairman Mr SFR Patrick, the Tribunal found that her application was out of time and dismissed it, in a judgment issued on 11 May 2005. Her claim had been presented on 2 May 2003. The claimant had last had personal contact with the second respondent on 20 December 2002 and the Tribunal found that he had not sexually harassed the claimant between that date and the date of presentation of her claim. They were not persuaded that it would be just and equitable to allow the complaint to be considered late.

2.	The second respondent owns all the shares in the first respondent and is its managing director. 

3.	We will refer to parties as claimant and respondents.

Background
4.	The claimant had been married to the second respondent between 1985 and 1988 and they had a daughter who, by the time of the Tribunal hearing, was 19 years old. The first respondent’s business is that of providing contract cleaning services. 

5.	The claimant began working for the first respondent in 2001 and by July 2001, she was appointed Operations Director.  Another employee, who was also a claimant before the Tribunal, Miss Wenham, was appointed Area Manager in 2001. The two women liked working together and, in the latter part of 2002, Miss Wenham went to live with the claimant and her daughter. 

6.	As is recorded in the Tribunal’s findings, it was the second respondent’s habit to use foul and offensive language in the workplace to all employees, both male and female (paragraph 9).

7.	The Tribunal also indicated that they gained the impression that the second respondent bullied his female employees (paragraph 85). 

8.	The second respondent regularly called at the claimant’s house. He would let himself in. These were, essentially, social visits; there is no finding that these visits related to the claimant’s employment. Once Miss Wenham was living there, he would joke about her sex life with her boyfriend during these visits and on one occasion he suggested that both she and the claimant could make a lot of money if they displayed their breasts on the internet. This was against a background of there being a habit of sexual banter between the claimant, Miss Wenham and the second respondent but, on occasions, the second respondent going too far. 

9.	On an occasion in 2002, when the second respondent discovered that the claimant had gone with Miss Wenham to see a client in Perth, which he did not consider necessary, he spoke to the claimant to the effect that she was allowing other members of staff to take advantage of her and said something along the lines of: 
“You should just let all of the staff suck on your tits.” 

10.	On an occasion in the office, the second respondent produced an image on a computer screen which showed a female dressed in a basque with Miss Wenham’s name applied to it. It was shown to people in the building including the claimant. 

11.	After Miss Wenham moved in with the claimant a rumour went round at work that they were having a lesbian relationship. The second respondent was aware of the rumour.

12.	Shortly before 20 December 2002, the second respondent went to visit a customer site in Forfar, to check up on the first respondent’s staff working there and was annoyed to find that the claimant had warned them that he was going to visit. He, accordingly, summoned the claimant to his office on 20 December, the day of the Christmas party. He locked the door and raised the issue of her dress with her. The claimant spoke about the fact that she was in trouble for having falsely claimed Housing Benefit (as was the case) and complained to the second respondent about a lack of training. The meeting became heated. The second respondent asked the claimant to leave her keys, which she did not.  He wrote to her the following day seeking to cover the various issues raised at the meeting and asking her to leave her keys. The claimant uplifted the letter on 21 December, left her keys and did not return to work. There was no further direct contact between the claimant and the second respondent. 

13.	After 20 December 2002, the second respondent referred to the claimant, when speaking to Miss Wenham, as “a junkie bastard” and as an “evil woman”. He was aware that these comments would probably be reported back to the claimant. There is no finding as to the timing of those comments. There is a finding, at paragraph 31 in the Tribunal’s judgment, that, at a meeting which took place early in May 2003, involving a number of employees including Miss Wenham, the second respondent said he had “already got rid of one ‘junkie bastard’ and would not hesitate to get rid of another one.” It would appear that that was a reference to the claimant. There is also a finding that after the claimant had gone off sick in December 2002, the second respondent referred to her “on occasions”, when speaking to Miss Wenham, as “junkie bastard” and “an evil woman” (paragraphs 9 and 28).  The evidence would, however, appear to have lacked any specification in respect that there is no finding as to when exactly that was. There is not, for instance, any finding that it happened at any time after 2 February 2003, the date three months before the lodging of the claimant’s Tribunal application  

14.	The second respondent wrote to the claimant on 16 January 2003 in connection with her company car which was to be collected, her fuel card and her mobile telephone. The letter also referred to her Housing Benefit claim and the possible implications for the company (since it had flowed from understated payslips). The second respondent took legal advice and wrote to the claimant on 17 January 2003 asking her to attend a disciplinary hearing on 24 January in relation to the Housing Benefit matter. No such hearing has yet been held; the claimant was unable to attend on 24 January. 

The Tribunal’s Decision
15.	The Tribunal noted that the claimant’s application was presented on 2 May 2003 and that the last contact that she had had with the second respondent had been on 20 December 2002.  It was submitted on her behalf that there was a course of conduct ongoing up to and beyond 2 February 2003 but they did not accept, on the facts, that that was so.  At paragraph 70 of their judgment, they explain:
“Although Ms Hood’s employment did not terminate on 20 December that was the last occasion on which she had any direct personal contact with Mr Davie.  Mr Davie’s visits to her home ceased.  There was subsequent correspondence between them about the proposed disciplinary hearing, the return of the car keys and mobile phone and he prospects of returning to work.  These were matters which Mr Davie was in the circumstances entitled to pursue with Ms Hood.  The tribunal found nothing to suggest that he pursued them because she was a female and that he would not have treated a man in the same way in the same circumstances.  It s true that Ms Hood also learned from Miss Wenham of the comments which Mr Davie made to Miss Wenham about her and, specifically, referring to her as ‘junkie bastard’ and as ‘an evil woman’ and that Mr Davie was aware that these would probably be repeated to her.  He acknowledged as much when he suggested in his evidence that he would not have made such comments for that reason.  These were not specifically relied upon by Ms Hood.  She sought to establish that Ms Hood’s course of conduct continued in the form of his sending her sexual messages from the internet to her mobile phone and sending inappropriate messages to Victoria.  The tribunal did not find that Mr Davie was in the period after 20 December 2002 guilty of a course of conduct constituting harassment of Miss Hood and that conclusion was one which would be the same whether or not one found the conduct of Mr Davie towards Miss Hood up to 20 December constituted sexual harassment.  In the light of that conclusion the date on which the three months period began for the purposes of section 76 of the 1975 Act was, at best for Miss Hood, 21 December 2002.  For her application to have been presented in time it would require to have been presented to the Tribunal by 19 March 2003”.

16.	They then found that it would not be just and equitable to allow the complaint to proceed though late. They added that even if they had been persuaded that the claim was not time barred, they would not have upheld her complaint of sexual harassment. They explain that they found the claimant’s complaints to be contrived and exaggerated to an extent and they could not accept that if the claimant was as badly affected by the second respondent’s conduct as she claimed, that she did not stop him visiting her at home.  At paragraph 76, they summarise their conclusions on the claimant’s complaint of sexual harassment:
“The comment which Mr Davie made to Miss Hood about letting the staff ‘suck on her tits’ was wholly inappropriate.  The comment was to a degree metamorphical and could not be said to be in the same category as the comment Mr Davie made about Miss Wenham being ‘all tits and no brains’.  The latter comment is more in line with the comment ‘Hiya big tits’ which was held on its own to be sufficient to constitute sexual harassment in the case of Insitu Cleaning Co Ltd v Heads [1995] IRLR 4.  The EAT upheld the Industrial Tribunal’s decision in that case that that comment on its own was sufficient to constitute sexual harassment.  In this case Ms Hood did not satisfy the Tribunal that she found the comment that Mr Davie made to her particularly distressing.  The same may be said of the incident about Mr Davie suggesting that Ms Hood and Miss Wenham advertise their breasts on the internet.  On that occasion Ms Hood and Miss Wenham made their displeasure known.  So far as Ms Hood is concerned the evidence does not suggest that thereafter Mr Davie made any similar comments to Miss Davie.  While accepting that Mr Davie treated Ms Hood differently than he would have treated a man in relation to those incidents the tribunal did not find that they were sufficiently serious to constitute a detriment and therefore unlawful discrimination”.

17.	At paragraph 77, they explain that they were not satisfied that anything that happened at the 20 December meeting amounted to sexual harassment and they also explain their rejection of a general assertion by the claimant that the second respondent intimidated her. In particular, they found:
“It appeared to the tribunal that Ms Hood was far more distressed at that time by the fact that her fraudulent Housing Benefit claims had been discovered and by the potential consequences for her”.

The Appeal
18.	Despite a lengthy notice of appeal, as matters transpired the appeal was in short compass. Mr Logan, for the most part of the appeal, submitted that the Tribunal had erred in failing to hold that there was behaviour after 20 December 2002 that amounted to sexual harassment. The second respondent had sexually harassed the claimant up to at least 30 April 2003 which showed that her claim was not time barred and was, ipso facto established. 

19.	The Tribunal  should, he submitted, have found that the second respondent having referred to the claimant as a “junkie bastard” at the meeting referred to in paragraph 31 was sexual harassment , as was his having said to Miss Wenham on occasions that the claimant was a “junkie bastard” and “an evil woman”. These comments were made against a background of the second respondent being a man who bullied his female employees. That showed that they amounted to sexual harassment. Further, they clearly and obviously, in his submission, amounted to a detriment. They were extreme comments and fell to be regarded in the same way as the comments made in Driskel v Peninsula Services Ltd [2000] IRLR 151 and Hereford and Worcester County Council and Others v Clayton [1996] Times LR 548. They amounted to a course of conduct that ran until at least the end of April 2003. It was not necessary for the claimant to have been present when the remarks were made for them to have constituted sexual harassment, as was evident from the Hereford and Worcester County Council case; if one read behind what the Tribunal said in paragraph 70 then it could be seen that they were saying that the comments were not relevant because they were made not directly to the claimant but to someone else. 

20.	In respect that the Tribunal have recorded, in paragraph 70, that the two comments relied on for the appeal were not relied on by the claimant, Mr Logan stated that it was not true to say that she did not rely on those matters because his written submissions made reference to them . Those submissions were not before this Tribunal. Mr Logan did add that he accepted that with the benefit of hindsight he had perhaps not made a sufficiently clear distinction between the evidence relied on by the claimant and by Miss Wenham.  He did not suggest that he made a submission to the Tribunal regarding the two comments he founded on for the purposes of this appeal, in the terms that he did to this Tribunal.

21.	Finally, as Mr Logan’s argument finally developed, he made two submissions which detracted from his initial absolute approach to matters. He said that he accepted that it might be possible to demonstrate that conduct which amounted to sexual harassment had no detrimental consequence to an employee. That would though, be an extreme case. Further and, in our view, significantly, he said that he accepted that he could not submit that the Tribunal could not have reached the view that the second respondent, in making the two comments relied on, had a motive that was other than sexual. It would, he said, maybe be appropriate to have guidance from the Tribunal as to what, in their findings, was the motivation behind or reason for the conduct. 

22.	In the course of his submissions, Mr Logan referred to two other authorities. He referred to MacDonald v Advocate General for Scotland [2003] IRLR 512 accepting that it qualified “to some extent” what was said by the Inner House in the case of Strathclyde Regional Council v Porcelli [1986] IRLR 134 in respect that it was necessary for a Tribunal in a sexual harassment to determine the reason why the harassment occurred; the reason for the harassment required to be gender based “on the ground of her sex”. He also relied on the passage at paragraph 191 in the speech of Lord Rodger of Earlsferry where it was stressed that the Tribunal requires to look at the whole of the alleged discriminator’s treatment of the woman and the whole of his treatment of the relevant male comparator and on a passage at paragraph 194 which points out that to comply with the statute, the Tribunal must use a comparator in such cases.  

23.	Mr Logan also referred to Insitu Cleaning Co Ltd v Heads [1995] IRLR 4 in support of a submission that detriment meant no more than disadvantage and that being so, it was obvious that the use by the second respondent of the two expressions founded on caused a detriment to the claimant.

24.	For the respondents, Mr Glass submitted that the appeal should be dismissed. He began by observing, correctly, that the claimant did not now present any argument to the effect that the second respondent’s conduct prior to 20 December 2002 amounted to sexual harassment. Nor was it being suggested now that the second respondent’s conduct towards the claimant on 20 December 2002 amounted to sexual harassment. That observation was also, we noted, correct. 

25.	In respect that the appeal focussed only on the use by the second respondent of the expressions “junkie bastard” and “evil woman” in respect of the claimant, he said that the findings in fact were sparse on that matter. There was no finding as to the context in which they were used, when communicated to Miss Wenham alone. There was no finding as to the impact, if any, on the claimant of the reporting to her of those statements. Further and importantly, it was clear from the Tribunal’s judgment at paragraph 70 that the claimant had not herself sought to rely on the use of those expressions as sexual harassment that occurred in the period after 20 December 2002. Her case was that she had been subjected to abusive text messaging at that time, a case which the Tribunal did not accept. The Tribunal had not been presented with a case that the use of the two expressions after 20 December 2002 amounted to sexual harassment. It followed from that that the Tribunal had not, understandably, analysed the statements and the use of them to determine whether they amounted to sexual harassment and had not determined whether or not in using them, the second respondent had treated the claimant less favourably than he would have treated a man in similar circumstances, a comparator exercise that would have been required:McDonald v Advocate General. 

26.	It could not, furthermore, be said that the only conclusion open to the Tribunal would have been that the use of the expressions founded on by Mr Logan amounted to sexual harassment. The second respondent was in the habit of using abusive language to all employees both male and female, as was evident from the Tribunal’s findings at paragraph 9. The use of the comments may well have fallen within the category of the sort of invective that the second respondent was apt to direct to all in the workplace, irrespective of their gender. To say that they necessarily had to be regarded as meeting the requirements of sections 1(2)(a) and 6(2)(b) of the Sex Discrimination Act 1975 (“the 1975 Act”) would be to make a quantum leap for which there was no justification on the findings in fact . Reference was made, in support of that submission, to the case of Brumfitt v Ministry of Defence [2005] IRLR 4 which showed that the fact that a man uses offensive words of a sexual nature to woman does not amount to discrimination unless it can be shown or inferred that it was less favourable treatment than he would have meted out to a man in similar circumstances. Context would also be important and the context was not only the second respondent’s way of conducting himself towards all employees but that there was no finding of any pointed intention on his part, that there was a suggestion of the claimant and Miss Wenham threatening to set up in business in competition with him and the matter of his anxiety about the potential effect on his business of the claimant having engaged in benefit fraud by means of obtaining understated wage slips. 

27.	Further, whether or not sexual harassment has given rise to detriment was a fact finding exercise and there were no findings of detriment to the claimant resulting from the use of the two expressions. The words did not, of themselves, indicate that detriment would have been inevitable. What this Tribunal did have was that the claimant did not rely on them and that there was no indication of her having given evidence that she was distressed by them or that they exacerbated her illness. If she had done so, it was inevitable that some finding about such evidence would have been made. All in all, it beggared belief that if the claimant had really sought to rely on these two expressions as being incidents of sexual harassment that her doing so would not have found its way into the judgment. 

28.	Mr Glass also submitted that there was insufficient in the findings in fact to allow this Tribunal to add the findings in fact that would be required for the case advanced on appeal. The claimant had made no application under paragraph 7 of the Practice Direction 2004. A reference back with questions to the Tribunal would not be appropriate. 

Relevant Law
29.	Bearing in mind that the acts complained of were alleged to have occurred in 2002 and 2003, the relevant provisions of the 1975 Act were sections 1(2)(a), which provided that a person discriminated against a woman if:
“on the ground of her sex he treats her less favourably than he treats or would treat a man,”
and 6(2)(b), which provided:
“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 to her any other detriment.” 

30.	Sexual harassment was, at the time of the events complained of in this case, recognised as being a form of sexual discrimination. To determine whether such harassment occurred, it is necessary to establish the reason for it, as was explained by Lord Nicholls of Birkenhead in Macdonald v Strathclyde Regional Council at paragraph 17 where, having observed that in some cases, including the case of Strathclyde Regional Council v Porcelli, it had been suggested that if the form of the harassment is sexual that necessarily constitutes less favourable treatment, he said:
“In agreement with Ward LJ in Smith v Gardner Merchant Ltd [1998[ IRLR 510, 516 ,  I respectfully think some of these observations go too far. They cannot be reconciled with the language or scheme of the statute. The fact that the harassment is gender – specific in form cannot be regarded as itself establishing conclusively that the reason for the harassment is gender based : ‘on the ground of her sex’. It will certainly point in that direction. But this does not dispense with the need for the tribunal of fact to be satisfied that the reason why the victim was being harassed was her sex. 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.” 
31.	It is also necessary, for the purposes of section 1(2)(a), to use a comparator. At paragraph 194 in McDonald v Strathclyde Regional Council, Lord Rodger makes that plain:
“The provision requires the tribunal to compare the way the alleged discriminator treats the woman with the way he treats or would treat a man.” 

32.	Conduct may amount to sexual harassment even although it was not directed at the claimant.Hereford and Worcester County Council v Clayton, where a fire brigade officer had remarked to his watch that “the good news is that you are getting someone else for the watch, the bad news is that it is a woman” is an example of circumstances where comments made to a third party could properly be viewed as having detrimental consequences for the woman to whom the officer was referring. Whether or not such detriment arises, however, is a question of fact to be determined by the Tribunal. 
33.	It is not enough to establish that the treatment meted out to the woman was less favourable than that which would have been meted out to a man. Detriment also requires to be shown to have been suffered. Whether or not a claimant has suffered detriment is a matter of fact to be determined by the Tribunal: Insitu Cleaning Co Ltd v Heads. 
34.	Driskel v Peninsula, relied on by the claimant, was a case where a remark made to an employee to the effect that she should, for an interview, wear a short skirt and a see–through blouse showing plenty of cleavage was regarded by the Employment Appeal Tribunal as objectively prima facie discriminatory so that it would need some exceptional findings to negate the inference of discrimination. We note, however  that that decision predates Macdonald and consider it would now have to be read in conjunction with it having been held in that case that even in the case of an overtly sexual remark, the Tribunal will still have to be satisfied that the reason for the treatment was the claimant’s gender. Brumfitt, which postdates Macdonald provides an example of a case where, on the evidence, it was determined that an overtly sexual and abusive remark did not amount to sexual harassment since it was not because of her gender that the female claimant was treated in that way.
Discussion
35.	We are satisfied that the claimant did not put before the Tribunal any case to the effect that the second respondent’s remarks that she was a “junkie bastard” and an “evil woman” amounted to sexual harassment. Whilst Mr Logan said that his written submission had made reference to that evidence, he did not suggest that any case such as was put before us was sought to be made in written or oral submission and he accepted that, in hindsight, even the reference to the evidence in his written submission lacked clarity. Furthermore, importantly in our view, the claimant, on the Tribunal’s findings, did not seek in her evidence, to found on the making of these remarks as reported to her by Miss Wenham, as instances of sexual harassment. 
36.	It is thus not at all surprising that the Tribunal have not addressed the issue of whether or not the remarks amounted to sexual harassment and whether it occurred at such dates as showed that the claimant’s case was not time barred. Had the case been put before them, they could have been expected to consider whether in the whole circumstances, the remarks amounted to sexual harassment, applying the relevant law as outlined above and whether the making of them caused detriment to the claimant.  That would have required the making of specific findings in fact in respect of those matters. The Tribunal would, in particular, have had to determine the reason why the remarks were made, whether in making them the second respondent was affording to the claimant treatment that was different from and less favourable than that which he would have afforded a man in similar circumstances and whether in fact the claimant suffered detriment as a result. We note that the latter task would have arisen in a case where the Tribunal were not satisfied that this claimant suffered detriment as a result of being told by the second respondent that she should let the staff “suck on her tits” or hearing Miss Wenham being referred to as “all tits and no brains”, comments which, unlike those founded on in this appeal, were overtly sexual in nature. Further, we note that the reason for the making of the remarks would have had to be determined in circumstances which ranged from the impression given to the Tribunal being that the second respondent bullied his female employees, to it being the case that he was apt to use abusive language to all employees, to there being potential for the second respondent being ill disposed to the claimant in respect of the risks to his business of her possibly setting up in competition and of her having been involved in benefit fraud.
37.	It would be quite inappropriate for us to seek to make the necessary findings.  No application was made under paragraph 7 of the Practice Direction and there was no indication that express evidence was ever given regarding the above matters. The appropriate conclusions in respect of them cannot, in our view, be drawn from the findings in fact that have been made, by way of inference. 
38.	Further, we do not accept the submission for the claimant that the remarks made obviously amounted to sexual harassment. That submission was made under reference to the Tribunal’s observation that they had the impression that the second respondent bullied his female employees but that is not the only relevant circumstance that the Tribunal would have had to take into account, as we have noted above. Further, we do not accept that the remark would obviously cause detriment. Whether or not detriment occurs is a question of fact and what upsets and distresses one person may have no effect on another. No assumption as to detriment could properly be made on the facts found by the Tribunal to have been established.   In any event, given the concessions made by Mr Logan towards the end of his address to us, we are not sure that he was actually insisting on these earlier submissions.  
39.	In short, we are not persuaded that the Tribunal erred in any way in failing to hold that the claimant was the subject of ongoing sexual harassment at the instance of the second respondent during the period 20 December 2002 to the end of April 2003, as was suggested. Nor can we properly make findings to that effect. Nor do we consider it appropriate to refer any questions back to the Tribunal; their response to the case that was presented to them which did not include an allegation that the use of the remarks founded on constituted ongoing sexual harassment which caused the claimant to suffer detriment, has been given and has been given clearly.
40.	In these circumstances the appeal falls to be dismissed.  We would also, however, observe that the way in which notice was given that the claimant alleged that the second respondent had made these remarks was in terms of a document prepared by her solicitor in response to a requirement imposed at a Preliminary Hearing on 20 November 2003, under cover of a letter 28 November 2003. In that document, it is alleged that both remarks were made at a meeting which took place on 7 May 2003. That would seem to be a reference to the meeting to which the Tribunal refer at paragraph 31, namely the meeting at which, on their findings, the second respondent referred to the claimant as being a “junkie bastard” in front of a number of employees including Miss Wenham, something which was heavily founded on by Mr Logan as showing that sexual harassment had continued at least up to the end of April. We have to say that we are not clear why he focused on April when the finding was that that meeting took place in early May. There is no specification of the date in May. However, the reference in the document sent under cover of her agent’s letter of 28 November 2003 to it taking place on 7 May raises the possibility that that meeting did not occur until after the claimant’s application to the Tribunal had been presented on 2 May. If that were the case, it would not, in any event, have been open to her to found on anything said at that meeting as saving her from her application being time barred as the meeting had not occurred at the date of presentation of her claim.  That would then have left only the findings that on some unspecified dates, the second respondent made the comments to Miss Wenham. The dates being unspecified would not rule out the possibility of them having predated 2 February 2003 and so the time bar would still not have been elided. 
Disposal
41.	In the circumstances, we will pronounce an order dismissing the appeal.