Appeal No. UKEAT/0434/11/CEA

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

		At the Tribunal
		On 27 January 2012

Before
THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
MR A HARRIS
MR M WORTHINGTON

MRS S WARBY	APPELLANT

WUNDA GROUP PLC	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MRS HILARY WINSTONE
(of Counsel)
Instructed by:
Thompsons Solicitors
Agincourt
14-18 Newport Road
Cardiff
CF24 0SW
	
For the Respondent
	MR BRUCE FREW
(of Counsel)
Instructed by:
The Royal Bank of Scotland Mentor Services Ltd
100 West George Street
Glasgow
G2 1PP

SUMMARY
HARASSMENT
SEX DISCRIMINATION
Direct
Pregnancy and discrimination

In the course of a heated discussion between the Claimant and her manager about pay, each accused the other of lying.  To emphasise his contention in the context of this argument, the manager accused the Claimant of having lied about her pregnancy and miscarriage.  The Employment Tribunal found this created an environment of a hostile kind such as to constitute harassment if it found that the accusation related to, or was on the grounds of, the Claimant’s sex.  It declined to do so.  

Held: the ET was entitled so to hold.  Context was of the greatest importance, and the ET had been entitled to regard the purpose of speaking the words to be related to proof of lying, and neither inherently nor otherwise spoken on the ground of sex.

THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
Introduction
1.	It is well established, as Elias LJ in the case of Grant v HM Land Registry and Anor [2011] EWCA Civ 769 put it at paragraph 46, that words that relate to protected characteristics of an individual are not necessarily inherently discriminatory.  He said:

“An individual may choose to make generally known in the workplace certain aspects of his or her private life, such as the fact that he or she has contracted some debilitating illness, or is pregnant, or has become a Christian.  In my judgment if that information is discussed in the course of conversation, even in idle gossip, provided at least there was no ill intent, that would not make the disclosure of that information an act of disability, sex or religious discrimination, as the case may be.  That is so even if the victim is upset at the thought that he or she will be the subject of such idle conversation.”

2.	He expressed the principle generally, but with the proviso that “at least there was no ill intent”; he did not resolve the question as to what the principle might be if there were such ill intent, but ill intent that was not in its nature directed towards the particular characteristic of the person in question but for some more general reason.  This appeal, from a decision of the Employment Tribunal sitting at Cardiff, whose Reasons were given on 16 March 2011 for dismissing claims made to it by an employee of direct sex discrimination, harassment and unfair dismissal, raises the question of what happens if words that refer to a particular characteristic of an individual are spoken in heat or in a fraught situation but in relation to some other purpose or object.

The facts
3.	The facts that gave rise to this question are these.  Summarising what is a detailed and careful exploration of the background by the Employment Tribunal, the Appellant employee took a post with the Respondent, a small company, and negotiated a wage.  It was not a high wage; it was a basic minimum in addition to which commission would be paid to her as a sales consultant.  It is plain that she and management, and in particular a Mr Pugh, had different recollections of what had been said to her about the extent to which her pay would continue at the basic level specified.

4.	There was a meeting in early 2010, on 26 January, in order to discuss the different views that the Claimant and Mr Pugh had about what had been agreed.  As Mr Frew, for the employer, points out, the Tribunal had come to the conclusion that the employer’s view was on the facts correct and the employee’s was not, but there was plainly a genuine dispute.  Both the Claimant and Mr Pugh formed the view during the course of the meeting that the other was lying.  The Tribunal found that Mr Pugh was outraged by what he believed the Claimant to be saying.  The Tribunal did not think well of either the Claimant or Mr Pugh as witnesses and in respect of their conduct up to this point and at this point.

5.	This was followed by a meeting on 25 March 2010.  This was in respect of a grievance that the Claimant had raised following the earlier event that we have just recounted.  It was described by the Tribunal as being extremely acrimonious.  The Claimant asserted that her wages were being changed to her detriment because she was pregnant.  Mr Pugh responded, saying that the alteration in her wage level had nothing to do with her pregnancy.  The note of the meeting, which the Tribunal accepted as correct, though it could not rely on either the evidence of the Claimant or Mr Pugh unless there were corroboration from some external source, as there was here, recorded that Mr Pugh, “brought up Sarah’s pregnancy and asked her why she lied about having a miscarriage”.  The suggestion that the Claimant had lied about her pregnancy arose from apparent anomalies in the date of a miscarriage and the date that the Claimant had become pregnant very shortly after that for a second time.  At paragraph 25 in the last sentence the Tribunal record that as far as colleagues of hers in the office could work out from a timeline that the Claimant had placed on Facebook, she must have become pregnant before she suffered the miscarriage at the end of November.  The Claimant vehemently denied this (paragraph 26) and said that it arose from a misunderstanding of the calculation of the dates set out on the Facebook page.  The Tribunal said:

“In our judgment, Mr Pugh for no good reason seized upon this as further evidence that the Claimant was lying more generally than just simply about what had or had not been agreed in the meeting in August 2009.  Although he denies it, we have no doubt that Mr Pugh did say the words attributed to him in the meeting [as recorded; we have set out the relevant words].  We can see no good reason why he chose to raise the subject or do something which was so obviously offensive and upsetting.”

6.	The Tribunal discussed those facts in its conclusions.  It said that it was highly unimpressed with the employer’s conduct of the matter.  From a very early point Mr Pugh had taken the view that the Claimant was lying, for reasons which the Tribunal found it difficult to understand, and the issue quickly became extremely highly charged.  The Tribunal added (paragraph 31):

“It does not follow from that, however, that the Respondent is guilty of the allegations made against it by the Claimant.  Unreasonable behaviour is not in and of itself discriminatory or even necessarily evidence of discrimination.”

7.	The Tribunal set out the statutory definition of harassment; as it happens, the definition that had applied in the law before it was amended in 2005.  Section 4A then read as follows in its material parts:

“Harassment, including sexual harassment
(1)  For the purposes of this Act, a person subjects a woman to harassment if—
(a) on the ground of her sex, he engages in unwanted conduct that has the purpose or effect—
(i) of violating her dignity, or
(ii) of creating an intimidating, hostile, degrading, humiliating or offensive environment for her […].”

8.	The actual wording of the statute as it was at the time of the hearing and at the time of the relevant actions read as follows:

“Harassment, including sexual harassment
(1)  For the purposes of this Act, a person subjects a woman to harassment if—
(a) he engages in unwanted conduct that is related to her sex or that of another person, and has the purpose or effect […].”

9.	It then proceeds as did the earlier version.  The difference is that the former version requires unwanted conduct to be on the ground of sex; the version in force, to which the Tribunal should have had regard, instead does not use the words “on the ground of her sex” but qualifies the words “unwanted conduct” by the words “that is related to her sex or that of another person”.  It is common ground before us that this, though a distinction, is not a material distinction in the circumstances of this case.  We are invited therefore to proceed upon the basis that in directing itself to the wrong wording the Tribunal were not materially in error of law, and, thus invited, we do not consider that distinction further.

10.	The sections both former and current at the time of the hearing continue in subsection (2) to say:

“Conduct shall be regarded as having the effect mentioned in sub‑paragraph (i) […] of subsection (1)(a) […] only if, having regard to all the circumstances, including in particular the perception of the woman, it should reasonably be considered as having that effect.”

11.	The Tribunal came to the conclusion that by accusing the Claimant of lying about her pregnancy and miscarriage the Respondent had indeed created an environment that would satisfy the definition of harassment contained within the Sex Discrimination Act provided it was on the grounds of the Claimant’s pregnancy.  Although some submissions on paper are addressed by Mrs Winstone, who appears for the Appellant before us, to the distinction between the purpose of creating an intimidating et cetera environment and the effect of creating it, this is not pursued in oral argument before us, and it has no material consequence, as we see it, upon our decision.  The Tribunal did not err in law in concluding that the effect of what had taken place was to create the environment as described in section 4A.  It correctly identified the question as being whether the accusation that was made by Mr Pugh was made on the grounds of the Claimant’s pregnancy.

12.	At paragraph 36 it set out what effectively encapsulates the argument before us.  We shall quote it in full:

“The Claimant maintains quite simply that given that the subject matter of the accusation was lying about her pregnancy, then self evidently it was on the grounds of pregnancy, as without her being pregnant the accusation could not have been made and therefore, it must follow that she has made out her claim.  The Respondent submits that that is to fall into an error of law.  What Mr Pugh did was to accuse the Claimant of lying.  The subject matter of the lie may have been her pregnancy but it could just have easily been any other subject […].”

13.	The Tribunal proceeded to accept the Respondent’s submission.  They saw (paragraph 37) no reason why Mr Pugh did what they regarded as a wholly unacceptable thing.  Again, no submission has been developed before us on this appeal as to the distinction between their appearing to say there was no reason, and what followed at paragraph 38, where the Tribunal did indeed find a reason, and we are satisfied that, taken in context as a Tribunal decision must be, what the Tribunal was here saying was that there was no good reason.  The reason why the words were used is set out at paragraph 38:

“In our judgment, Mr Pugh’s motivation was precisely that which is set out in the notes, in so far as he was convinced the Claimant was lying and convinced that this was another example of her lying and put it to her very frankly.  Whilst this may be unreasonable, it is not in our judgment, harassment on the grounds of her pregnancy.”

The Claimant’s case
14.	The argument for the Claimant has been put forward in succinct, effective and clear submissions by Mrs Winstone.  She argues, effectively, that there is here both direct discrimination (that is ground 1 of the appeal) that the Tribunal should so have found and harassment (that is ground 2) that the Tribunal should so have found because the words used, and therefore the conduct complained of, were inherently discriminatory; a man obviously cannot be pregnant.  The words therefore answered in themselves the question whether there was here discriminatory language being used and therefore whether, given that the words had caused the environment to be offensive et cetera and that the conduct had been unwanted, made out the offence of harassment and indeed also satisfied the test of discrimination within the Act, subjecting her to a detriment by less favourable treatment, automatically to be assumed because what was in issue here was pregnancy.  She argued that it was no answer to say that what had taken place was an argument and an accusation of lying.  The motive for saying what was said may have been to draw attention to the fact that the Claimant, it was said, had lied on occasions other than about her wage and was thus effectively an inveterate liar, but that was beside the point, because where an act is discriminatory then a claimant and a tribunal do not have to seek any motive.  She pointed out that where there is a choice of the subject that can be touched upon where someone is going to be offended, the employer could have chosen a non‑discriminatory way of achieving that regrettable result; here, he did not.  If an employer in such a circumstance chooses words that are inherently discriminatory, then the offence under the statute is committed.

15.	She relied for those submissions first upon the well‑known case of James v Eastleigh Borough Council [1990] IRLR 572, much discussed in other cases and well known as the case in which a swimming pool was made available for free use by pensioners, a criterion which, though on the face of it apparently gender‑neutral, in fact amounted to the Council saying that women between the age of 60 and 65 would enter the swimming pool free of charge whereas men between the age of 60 and 65 would have to pay.  That was regarded as inherently discriminatory; the motive of the Council, which had been benign, in adopting the criterion was beside the point.  In Richmond Pharmacology Ltd v Dhaliwal [2009] IRLR 336 she noted that it was recommended that a Tribunal should as a healthy discipline address three elements in a claim of harassment (first, unwanted conduct; second, having the purpose or effect of either violating dignity or creating an adverse environment; and thirdly, that the conduct was related to the claimant’s sex), adding in this case that was indisputably so because it was about pregnancy.

16.	When the illustration that was used by this Tribunal, presided over by HHJ David Richardson, in the case of Nazir and Anor v Asim and Anor [2010] ICR 1225 at paragraph 71, was put to Mrs Winstone, her response was revealing.  The passage that leads up to the example begins at paragraph 68; finally, said the Tribunal, was the conduct “on the grounds” of her race and sex, as she alleged:

“69. We wish to emphasise this last question.  The provisions to which we have referred find their place in legislation concerned with equality.  It is not the purpose of such legislation to address all forms of bullying or antisocial behaviour in the workplace.  The legislation therefore does not prohibit all harassment, still less every argument or dispute in the workplace; it is concerned only with harassment which is related to a characteristic protected by equality law - such as a person’s race and gender.
70. In our judgment, when a Tribunal is considering whether facts have been proved from which it could conclude that harassment was on the grounds of sex or race, it is always relevant, at the first stage, to take into account the context of the conduct which is alleged to have been perpetrated on the grounds of sex or race.  The context may, for example, point strongly towards or strongly against a conclusion that harassment was on the grounds of sex or race.  The Tribunal should not leave the context out of account at the first stage and consider it only as part of the explanation at the second stage, after the burden of proof has passed.
71. We think a simple illustration will suffice to show why this must be the law.  Suppose that Y, a man, shouts and swears loudly at Z, a woman.  He does so immediately after Z accidentally spills a cup of coffee over his clothing; and prior to this Y had never shouted or sworn at Z.  It would be absurd to ignore the spilling of the cup of coffee on Y when deciding if there is a prima facie case that he harassed Z on the grounds of sex.  The spilling of the coffee is not merely explanation; it is also part of the context in which the Tribunal must decide whether there is a prima facie case of sexual harassment.  And this is the case whether or not Y’s conduct is thought to be reasonable.”

17.	If, we asked Mrs Winstone, the swearing had included words that could only have been addressed to a woman, such as “bitch”, would this convert what on the example posed contained no element of discrimination into one that did?  She replied, as her case necessarily required, that that was what she was arguing.

18.	The question of conduct “on the grounds of” or “related”, as the parties here draw no distinction between the two, is to be understood in many circumstances by the words adopted by Nicholls LJ in the case of The Constable of West Yorkshire Police v Khan [2001] UKHL 48 at paragraph 29.  There, looking at the words “by reason that”, which for present purposes are indistinguishable from “on the grounds of” or “related to”, he observed:

“Contrary to views sometimes stated, the third ingredient (‘by reason that’) does not raise a question of causation, as that expression is usually understood.  Causation is a slippery word, but normally it is used to describe a legal exercise.  From the many events leading up to the crucial happening the court selects one or more of them which the law regards as causative of the happening.  Sometimes the court may look for the operative cause or the effective cause; sometimes it may apply a ‘but for’ approach.  For the reasons I sought to explain in Nagarajan v London Regional Transport [1999] 1 AC 502, 510-512, a causation exercise of this type is not required either by section 1(1)(a) or section 2.  The phrases ‘on racial grounds’ and ‘by reason that’ denote a different exercise: why did the alleged discriminator react as he did?  What, consciously or unconsciously, was his reason?  Unlike causation, this is a subjective test.  Causation is a legal conclusion.  The reason why a person acted as he did is a question of fact.”

19.	There has been some discussion whether that approach in Khan and in Nagarajan was consistent with the approach taken earlier by the House of Lords in James.  Underhill J, as President of this Tribunal, in Amnesty International v Ahmed [2009] IRLR 884, addressed this relationship.  At paragraph 32 he concluded that there was no real difficulty as between the cases.  At paragraph 32 he set out the basic question in a direct discrimination case as being what is or are the ground or grounds for the treatment complained of.  There was no difference, he thought, between that formulation and asking what was the reason that the act complained of was done, which is the language used in the victimisation provisions (see per Nicholls LJ in Nagarajan at page 576, paragraph 18, and, to the same effect, Steyn LJ at pages 579‑580, paragraph 39).  He went on:

“33. In some cases the ground, or the reason, for the treatment complained of is inherent in the act itself.  If an owner of premises puts up a sign saying ‘no blacks admitted’, race is, necessarily, the ground on which or the reason why a black person is excluded.  [James] is a case of this kind.  There is a superficial complication in that the rule that was claimed to be unlawful - namely that pensioners were entitled to free entry to the Council’s swimming pools - was not explicitly discriminatory.  But it nevertheless necessarily discriminated against men because men and women had different pensionable ages: the rule could entirely accurately have been stated as, ‘Free entry for women at 60 and men at 65’.  The Council was therefore applying a criterion which was of its nature discriminatory: it was, as Gough LJ put it at page 294, paragraph 36, ‘gender based’.  In cases of this kind what was going on inside the head of the putative discriminator - whether described as his intention, his motive, his reason or his purpose - will be irrelevant.  The ‘ground’ of his action being inherent in the act itself, no further enquiry is needed.  It follows that, as the majority in [James] decided, a respondent who has treated the claimant less favourably on the grounds of his or her sex or race cannot escape liability because he had a benign motive.
34. But that is not the only kind of case.  In other cases - of which Nagarajan is an example - the act complained of is not itself discriminatory but is rendered so by a discriminatory motivation, i.e. by the ‘mental processes’ (whether conscious or unconscious) which led the putative discriminator to do the act.  Establishing what those processes were is not always an easy enquiry, but Tribunals are trusted to be able to draw appropriate inferences for the conduct of the putative discriminator and the surrounding circumstances (with the assistance where necessary of the burden of proof provisions).  Even in such a case, however, it is important to bear in mind that the subject of the enquiry is the ground of or reason for the putative discriminator’s action, not his motive; just as much as in the kind of case considered in [James], a benign motive is irrelevant.  […]”

20.	With those observations we entirely agree.  It is plain that in making those observations this Tribunal was emphasising the importance of context.  If it needed any further emphasis, that is given at paragraph 37 in the same case, in which Underhill J said:

“The fact that a Claimant’s sex or race is a part of the circumstances in which the treatment complained of occurred, or of a sequence of events leading up to it, does not necessarily mean that it formed part of the ground, or reason, for that treatment.”

21.	In Grant at 1401, paragraph 43, again, the importance of the particular circumstances were emphasised there by Elias LJ: “for example, it will generally be relevant to know to whom a remark is made, in what terms, and for what purpose”.  We therefore accept the Respondent’s submission that context is everything.  It is for a Tribunal who hears the witnesses, whose job it is to determine the facts, and who considers the submissions made to it in the light of having heard those witnesses and determined those facts, to decide what the context is and to contextualise what has taken place.  We would add that it may be a mistake to focus upon a remark in isolation.  A Tribunal is entitled to take the view, as we see it, that a remark, however unpleasant and however unacceptable, is a remark made in a particular context; it is not simply a remark standing on its own.

22.	Mr Frew submits that contrary to the argument of Mrs Winstone the words here were not inherently discriminatory.  It was for the Tribunal to determine whether in context what happened was or was not discriminatory.  The unwanted conduct could not be over‑focussed upon the words in isolation.  The Tribunal was entitled to have regard to the context in which, he emphasised, the Tribunal had shown that in general terms the employer’s view of the underlying merits in the argument was correct and in which they plainly had adopted the submission made by Mr Frew himself: that the subject matter of the lie might have been her pregnancy, but it could just as easily have been any other subject.  The Tribunal had taken the view, he said, that the conduct here was emphatic and forceful emphasis of the view of Mr Pugh that the Claimant was lying.  The words used were not aimed at the Claimant in the light of her pregnancy.  They were not aimed at the Claimant because she had a miscarriage; they were aimed at the fact, as Mr Pugh thought it to be, that she had been lying.

Conclusions
23.	As to these first two grounds, we accept that the cases require a Tribunal to have regard to context.  Words that are hostile may contain a reference to a particular characteristic of the person to whom and against whom they are spoken.  Generally a Tribunal might conclude that in consequence the words themselves are that upon which there must be focus and that they are discriminatory, but a Tribunal, in our view, is not obliged to do so.  The words are to be seen in context; the context here was that the dispute and discussion was about lying.  The conduct complained of, as the Tribunal saw it, was a complaint emphatically made about lying; it was not made to the Claimant because of her sex, it was not made to the Claimant because she was pregnant, and it was not made to the Claimant because she had had a miscarriage.  In the words of Ahmed at paragraph 37, as earlier quoted:

“The fact that a Claimant’s sex or race is a part of the circumstances in which the treatment complained of occurred, or of a sequence of events leading up to it, does not necessarily mean that it formed part of the ground, or reason, for that treatment.”

24.	Employment Tribunals must be trusted to determine as a matter of fact whether the words were or were not discriminatory.  There was no necessary inherent discrimination in conduct that consisted of those words in that context, emphasising those last three words.  The Tribunal might have found there to be discrimination; it might, on the other hand, not have done, and that is what it chose to decide.  That is a question of fact, as we see it, for the Tribunal here.  It was said by Mr Frew in words that attracted the lay members in particular in this Tribunal towards the end of his submission that if the situation were otherwise and any reference to miscarriage or pregnancy was inherently to draw attention to a characteristic that because it was not shared with any man must be discriminatory, it would mean that the raising of miscarriage or pregnancy in any fraught situation, as he described it, between an employer and an employee would amount to harassment or discrimination within the statute.  That, they consider, would not fit with the intention of the statute as described by Judge Richardson in the passage that we have already cited in Nazir.

25.	For those reasons we have concluded that, effectively though Mrs Winstone made her points, ultimately we could not conclude that the words here were inherently discriminatory when they were taken in this particular context.  The Tribunal was entitled therefore to come to the conclusion it did as a matter of fact, subject only to perversity, which could not sensibly be alleged here.

26.	There was a third and a fourth ground of appeal, about which we need say little.  The Tribunal dismissed the claim in respect of alleged unfair dismissal constructively on the grounds of time.  Had it found that the claims in respect of discrimination or either of them was well founded, then the time limit would not have applied.  Accordingly, in the absence of it so finding, her claim was bound to fail.  Although Mrs Winstone in her skeleton argument sought to argue the principles of constructive dismissal in detail with a view to persuading us that if we were in the Claimant’s favour on either of the first two grounds, we should ourselves substitute a decision that here there was a constructive unfair dismissal within time, by the end of the hearing the agreed position between the parties, about which we therefore need to say little more, was that if we had so found, the appropriate course would be to remit that matter for consideration by the Tribunal, since there was a powerful argument that the Claimant might not have resigned when she did because of the behaviour of Mr Pugh, which the Tribunal thought to be wholly unacceptable in the relevant meeting.

27.	Finally, the Claimant pointed out that the Tribunal had said nothing about whether or not there had been an accusation by Mr Pugh during the course of the conversation that she, the Claimant, had had an abortion.  The Tribunal gave further elaboration on its Judgment in accordance with a direction from this Tribunal and did not accept that Mr Pugh made such a comment in the meeting on 25 March.  That is not to say that he did not use the word “abortion”, we note, given the content of his statement in which he accepted (see paragraph 20) that he inadvertently and regrettably used that word when he meant “miscarriage”, but the finding of fact is that he did not make any accusation about it, and the finding of fact by the Tribunal is that the conversation was to the effect that the Claimant had lied about her miscarriage, and that was as far as it went.  There is no further mileage therefore for the Claimant in paragraph 4.

28.	For those reasons therefore, we are bound to dismiss this appeal.