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58 VICTORIA EMBANKMENT, LONDON
EC4Y 0DS Appeal No: EAT/1120/98
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APPEARANCES
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For the
Appellant |
MR M
DUGGAN |
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For the
Respondents |
MR O
BRABBINS |
Judgment Delivered on
17 December 1999.
MR
JUSTICE HOLLAND:
Introduction
1. Mrs. Driskel is now
aged 56. In May 1994 she commenced employment with Peninsula Business Services
Ltd ("Peninsula") as an Advice Line Consultant. Peninsula
provide advice and advocacy services in connection with employment;
seemingly Mrs. Driskel gave advice by telephone. In September 1995 Mr. Huss
became head of her department. As head Mr. Huss was unpopular for various
reasons with all or many of the persons in the department and with the passage
of time there was a growing antipathy to him on the part of Mrs. Driskel, which
antipathy became mutual. Says Mrs. Driskel, Mr. Huss had a penchant for sexual
banter and comments and she specifies incidents that involved them both as
arising in respectively February 1996 (twice), April 1996 and June 1996. On the
4th June 1996 there was advertised the post of Senior Advice Line Consultant
(effectively the deputy to Mr. Huss). Only Mrs. Driskel applied - Mr. Huss's
preferred candidate did not apply. On the 11th July there was a further
incident involving Mr. Huss and Mrs. Driskel; on the 12th July the former
interviewed the latter for the post. The process was not brought to a proper
conclusion: Mrs. Driskel left the interview room and initiated a complaint of
sexual harassment. Mr. Done, as a managing director of Peninsula deputed Mr
Sutcliffe, Director of Consultancy, to investigate and deal with the complaint.
There was some delay in reporting which led to Mrs. Driskel initiating a formal
grievance on the 28th August - in the event the day on which Mr. Sutcliffe
reported so as to reject her complaint. There followed much 'toing and froing'
with the upshot that Mrs. Driskel refused to work even as Senior Advice Line
Consultant unless Mr. Huss moved elsewhere. He refused to move; Peninsula took
the view that he could not be made to do so. Given impasse, Peninsula dismissed
Mrs. Driskel for "some other substantial reason" on the 20th October
1996 with one month's pay in lieu of notice. All this impacted as follows. By
way of an IT1 dated 12th September 1996 Mrs. Driskel raised complaints against
Peninsula, Mr. Huss, and Mr. Sutcliffe, alleging sexual discrimination and
sexual harassment. By way of an IT1 dated 22nd November 1996 she raised a
complaint against Peninsula and Mr. Done, alleging unfair dismissal. These
complaints, seemingly supplemented with a complaint alleging sexual
victimisation, were heard by an Industrial Tribunal sitting in Manchester on
some ten days on and between the 8th September 1997 and the 23rd January 1988.
The parties received a Decision together with Extended Reasons on the 10th June
1998. By way of the Decision all Mrs. Driskel's complaints were dismissed. She
now appeals to this Tribunal.
The
Extended Reasons
2. It is necessary to make some early
observations about the Extended Reasons. The format is as follows:
a. Paragraphs 1 to 11. These specify
the procedural history and identify, respectively, the parties, the witnesses
and the issues, all in an admirable fashion.
b. Paragraph 12. By way
of fifty-eight successive sub-paragraphs numbered (i) to (iviii), the facts are
found and inferences are drawn. The flavour can be adjudged from a sample
sub-paragraph, say, (xi):
"(xi)
The Applicant's next complaint against Mr. Huss was that on an occasion in or
about February 1996, he had asked her about her dealings with a client, and
when she relied "Oh dear, am I in trouble." He had said "I can
get you into trouble". She had then said "I can get myself into
enough trouble thank you," to which he relied "The sort of trouble I
am thinking about, you could not get into yourself". Mr. Huss denied that
this incident occurred; and although the Tribunal considered that some such
conversation may well have occurred, we were not satisfied that the words
complained of were necessarily spoken in a sexual context, or represented a
manner of speech which Mr. Huss, who was an aggressive manager, would not have
adopted to any employee."
It will be apparent
that here, as in many other like paragraphs, the Tribunal is finding facts as
to one incident and then immediately subjecting such to some 'sexual
discrimination' analysis.
c. Paragraph 13. There
is a succinct recital of Mrs. Driskel's essential case.
d. Paragraph 14. There
is a like recital of Peninsula's case.
e. Paragraph 15. By way
of forty successive sub-paragraphs numbered (i) to (xl) the Tribunal sets out
its conclusions essentially by way of a re-run of Paragraph 12, albeit with
less factual recital and more analysis. Again, there is tendency to analyse
incidents or conduct in isolation rather than expressing an overall view. The
nearest thing to the latter is sub-paragraph (xxxix):
(xxxix)
The Tribunal is required to consider all proper inferences which can be drawn
from the evidence in a case of this kind, and we do not lightly dismiss a claim
of this complexity without a full consideration of all of the evidence put
before us. However, the burden of proving her allegations is on the applicant
to establish her claims of sexual discrimination, and the Tribunal must take an
overall view of the strength of the case against each respondent. In this case
we were driven to conclude that the applicant had not discharged the burden of
proof and had not established any of her claims against the respondents. We are
satisfied that the course of events in this case was not derived from acts of
sexual discrimination or (where appropriate) victimisation, and was not in any
event as the applicant sought to persuade us in her evidence, because we were
satisfied that a number of her original allegations did not occur in the manner
she described them."
3. Arising
from this analysis, we venture the following comments. First, the Tribunal (and
more particularly the Chairman) may care to reflect on the format of the
Reasons. Given an identical style of composition and much overlap in content as
between Paragraphs 12 and 15, argument in the appeal before us struggled as to
use of the Reasons. Was the point in Paragraph 12 or 15? If so, when at (say)
page 8 of our bundle which Paragraph were we looking at, given this repetitive
use of Roman enumeration? Had the facts been reiterated in one section free
from any forensic analysis, with the latter reserved for a different section,
the Reasons would inevitably have been shorter and more readily utilised.
Second, in all the 28 pages there is no recital of the law as it is to be
applied - and given the length and complexity of the case a reminder as to the
relevant principles and as to the resultant forensic issues might have been a
valuable aid to analysis. Third, it is a pity that the Tribunal was denied the
guidance given by this Tribunal in the surprisingly unreported case, Qureshi v
Victoria University of Manchester, 21st June 1996, EAT/484/95. That Tribunal
was similarly concerned with a case featuring a number of incidents arising in
the course of a period of employment, each said to
reflect racial discrimination. It criticised the approach of the Industrial
Tribunal which had been - as in this case - to make judgments, 'discrimination
or no' with respect to each incident in turn. The guidance given included the
following:
"In
the present case, it was necessary for the Tribunal to examine all the
allegations made by Dr Qureshi of other incidents relied upon by him as
evidentiary facts of race discrimination in the matters complained of. There is
a tendency, however, where many evidentiary incidents or items are introduced,
to be carried away by them and to treat each of the allegations, incidents or
items as if they were themselves the subject of a complaint. In the present
case it was necessary for the Tribunal to find the primary facts about those
allegations. It was not, however, necessary for the Tribunal to ask itself, in
relation to each such incident or item, whether it was itself explicable on
"racial grounds" or on other grounds. That is a misapprehension about
the nature and purpose of evidentiary facts. The function of the Tribunal is to
find the primary facts from which they will be asked to draw inferences and
then for the Tribunal to look at the totality of those facts (including the
respondent's explanations) in order to see whether it is legitimate to infer
that the acts or decisions complained of in the originating applications were on
"racial grounds". The fragmented approach by the Tribunal in this
case would inevitably have the effect of diminishing any eloquence that the
cumulative effect of the primary facts might have on the issue of racial
grounds. The process of inference is itself a matter of applying common sense
and judgment to the facts, and assessing the probabilities on the issue whether
racial grounds were an effective cause of the acts complained of or were not.
The assessment of the parties and their witnesses when they give evidence also
form an important part of the process of inference. The Tribunal may find the
force of the primary facts is sufficient to justify an inference of racial
grounds. It may find that any inference that it might have made is negated by a
satisfactory explanation from the respondent of non-racial grounds of action or
decision."
Plainly
this guidance holds good in a sexual discrimination
case featuring a number of allegations - had it been followed it would have
promoted a different and arguably more effective structure for the Extended
Reasons, and for the judgments reflected in such.
4. Similar guidance was
given by this Tribunal in Reed and Bull Information Systems Ltd v Stedman
(1999) 1RCR 299 at 302:
"It
is particularly important in cases of alleged sexual harassment that the fact
finding tribunal should not carve up the case into a series of specific
incidents and try (to) measure the harm or detriment in relation to each."
This
Tribunal cited a decision of a U.S. Federal Appeal Court, such including the
following:
".....
the trier of fact must keep in mind that each
successive episode has its predecessors, that the impact of the separate
incidents may accumulate and that the work environment may exceed the sum of
the individual episodes."
Putting
aside these comments, the Extended Reasons do reflect much energy and dictation
on the parts of the Industrial Tribunal.
Sexual
Discrimination
5. On behalf of Mrs. Driskel, Mr.
Duggan draws attention to the findings of fact made by the Tribunal that could
and, he would say, should bear upon the complaint of sexual discrimination.
With respect to the incidents alleged as occurring in February 1996, April
1996, May 1996 and June 1996, the Tribunal had accepted Mrs. Driskel's account
and had rejected the denials of Mr. Huss. Each incident essentially reflected
some comment made about her by Mr. Huss with a sexual connotation. This led up
to the crucial incident of July 1996 and we cite the paragraph 12 findings and
comments as follows:
"(xxiv)
The date of the applicant's interview was delayed by both the applicant and Mr.
Huss taking holidays, but it was eventually arranged to take place on 11 July
199. It is common ground (and was never disputed by Mr. Huss) that on the
evening before the interview was scheduled to take place, Mr. Huss said to the
applicant that she had better attend the interview in a short skirt and
see-through blouse, showing plenty of cleavage, and make an attempt (or
possibly a vain attempt) to persuade him to give her the job. The applicant
contended that the use of the additional word "vain" make the remark
worse than it would otherwise have been, but the Tribunal did not consider this
a matter of particular significance, and we were left in no doubt that, whatever
the precise words used, it was a tasteless and inappropriate remark which was
directed to the applicant's sex.
(xxv)
The applicant did not at that stage express any objection to the remark, though
she later claimed to have been very upset by it; and when she saw Mr. Huss in
the office the next morning, she apparently remarked "You see, I am not
wearing the see-through blouse or the mini, and I am not showing plenty of
cleavage," to which he replied "Well, that will have to do then,
would you like some tea", and she said "Yes".
(xxvi)
It was the applicant's evidence that she had drawn attention to the fact that
she was not wearing the revealing clothing deliberately to give Mr. Huss the
opportunity to apologise and to refer to the matter in front of a witness (Mrs.
Lennon), but, even if this explanation were accepted at face value, what is
clear is that she did not express any clear objection to Mr. Huss, either when
he made the remark or the next morning, and that if (as the Tribunal accepted)
he considered the remark to be purely jocular and incapable of being taken
seriously, nothing in what the applicant said, or in her demeanour, would have
indicated to him that she had taken it as a serious remark, or that she was
deeply offended by it."
6. Why did
not the Tribunal uphold the complaint of sexual discrimination on the basis of
such findings? Dealing with the pre-July allegations, the Tribunal found at
several points in the Reasons a response typified in the following passages:
"15
(vii) As appears from the finding of fact the Tribunal
was satisfied on a balance of probabilities that on the occasions (that were
material) ..... Mr. Huss made remarks of a sexual nature to or about the
applicant but (for the reasons already set out) we were also satisfied that she
made no objection at the time to the remarks and that Mr. Huss could not have
known that she found them offensive and further, that she suffered no detriment
from such remarks being made .....
15
(x) The Tribunal therefore concluded that even though some of the remarks by
Mr. Huss towards the applicant were capable of being interpreted as evidence of
sexual harassment, the applicant did not satisfy us that she regarded them in
that light when they occurred and did not suffer any detriment by reason of any
of those remarks."
7. Turning
to the July incident the relevant finding in paragraph 15 is:
(xii)
It is important to add that what Mr. Huss said to the applicant on the evening
of 10 July was wholly inappropriate and unacceptable in a modern employment context,
and was capable of being regarded as an act of sexual harassment (even if
flippantly intended). However, we accept the evidence of Mr. Huss that the
remark was intended as a flippant remark, which could not reasonably have been
taken seriously, and was not taken seriously by the applicant when the words
were spoken. Here again, we must consider the applicant's reaction immediately
after the remark was made. The evidence of Mr. Barratt (which the Tribunal had
no reason to doubt on this issue) was that she replied "Be warned, I may
be in a skimpy outfit tomorrow". Yet again, no immediate objection was
made to Mr. Huss, though if the applicant's genuine reaction was the shock and
horror which she described to the Tribunal, one would reasonably have expected
an immediate objection, or at least a different response from the words quoted
above."
8. It is
Mr. Duggan's submission that to make such findings, and in particular the
finding with respect to the July incident the Tribunal must have misdirected
itself as to the law. Had the Tribunal specifically directed itself as to the
appropriate approach to adjudicating upon a complaint of sexual discrimination
its conclusion would have been different. In response,
Mr. Brabbins submits that by way of this part of the appeal, Mrs. Driskel was
essentially seeking to reverse findings if fact that were properly open to it.
9. All this begs the
questions: what is the law? How should the Tribunal have applied it?
10. The answers start,
inevitably, with the Sex Discrimination Act 1975:
"Section
1(1) A person discriminates against a woman in any
circumstances relevant for the purposes of any provision of this Act if-
(a) on the ground of her sex he treats her less
favourably than he treats or would treat a man.
Section 6(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-
(a) in the way he affords her access to opportunities for promotion, transfer
or training, or to any other benefit, facilities or services, or by refusing or
deliberately omitting to afford her access to them, or
(b)
by dismissing her, or subjecting her to any other
detriment."
11. With
that as the law, how is it to be applied by a Tribunal? It is to be observed
that those statutory provisions are identical, mutatis mutandis, to those in
the parallel Race Relations Act 1976, Sections 1(1)(a)
and 4(2)(b) and (c). That inevitably conjures up the guidance given by the
Court of Appeal relevant to these latter sections in King v Great Britain -
China Centre (1992) 1CR 516, at 528:
".....
From these several authorities it is possible, I think, to extract the
following principles and guidance. (1) It is for the applicant who complains of
racial discrimination to make out his or her case. Thus if the applicant does
not prove the case on the balance of probabilities he or she will fail. (2) It
is important to bear in mind that it is unusual to find direct evidence of
racial discrimination. Few employers will be prepared to admit such
discrimination even to themselves. In some cases the discrimination will not be
ill-intentioned but merely based on an assumption that "he or she would
not have fitted in." (3) The outcome of the case will therefore usually depend
on what inferences it is proper to draw from the primary facts found by the
tribunal. These inferences can include, in appropriate cases, any inferences
that it is just and equitable to draw in accordance with section 65(2)(b) of the Act of 1976 from an evasive or equivocal reply
to a questionnaire. (4) Though there will be some cases where, for example, the
non-selection of the applicant for a post or for promotion is clearly not on
racial grounds, a finding of discrimination and a finding of a difference in
race will often point to the possibility of racial discrimination. In such
circumstances the tribunal will look to the employer for an explanation. If no
explanation is then put forward or if the tribunal considers the explanation to
be inadequate or unsatisfactory it will be legitimate for the tribunal to infer
that the discrimination was on racial grounds. This is not at matter of law
but, as May L.J. put it in North West Thames Regional Health Authority v
Noone (1988) I.C.R. 813, 822, "almost common sense." (5)
It is unnecessary and unhelpful to introduce the concept of a shifting
evidential burden of proof. At the conclusion of all the evidence the tribunal
should make findings as to the primary facts and draw such inferences as they
consider proper from those facts. They should then reach a conclusion on the
balance of probabilities, bearing in mind both the difficulties which face a
person who complains of unlawful discrimination and the fact that it is for the
complainant to prove his or her case."
12. In the
course of argument we were additionally and helpfully referred to two decisions
of this Tribunal specific to sexual discrimination: Insitu Cleaning Co. Ltd v
Heads (1995) 1RLR 4 and Read and Bull Information Systems v Stedman op. cit. On
the basis of the foregoing the Tribunal's approach should be as follows:
a. The Tribunal hears the evidence and finds the facts. As
has already been pointed out it is desirable not to include in this exercise
judgments as to the discriminatory significance, if any, of individual
incidents - judgment thus far should be limited to the finding of all facts
that are prima facie relevant. If ad hoc assessments 'discrimination or no' are
made the result is a fragmented and discursive judgment; more importantly,
there is the potential noted in Reed and Bull for ignoring the impact of
totality of successive incidents, individually trivial.
b. The Tribunal then
makes a judgment as to whether the facts as found disclose apparent treatment
of the female applicant by the Respondents as employers in one or more of the
respects identified in Section 6(2)(a) and (b) that was less favourable than
their treatment, actual or potential, of a male employee.
c. The Tribunal further
considers any explanation put forward on behalf of the Respondent employers. In
the light of any such explanation is the discrimination so far potentially
identified, real or illusory?
d. In making judgments
under b. and c. above (and in practice these two stages may elide together) the
following guidance is applicable:
(1) Sexual harassment
is helpfully categorised in Reed and Bull, op. cit. at 302:
"It
seems to us important at the outset that 'sexual harassment' is not defined by
statute. It is a colloquial expression which describes one form of
discrimination in the workplace made unlawful by s.6 of the Sex Discrimination
Act 1975. Because it is not a precise or defined phrase, its
use, without regard to s.6, can lead to confusion. Under s.6 it is
unlawful to subject a person to a 'detriment' on the grounds of their sex.
Sexual harassment is a shorthand for describing a type
of detriment. The word detriment is not further defined and its scope is to be
defined by the fact-finding tribunal on a common-sense basis by reference to
the facts of each particular case. The question in each case is whether the
alleged victim has been subjected to a detriment and, second, was it on the
grounds of sex."
(2) The finding of less favourable treatment leading to
'detriment' is one of fact and degree so that a single act may legitimately
found a complaint, cf. Insitu Cleaning Co. Ltd, op.
cit.
(3) The ultimate
judgment, sexual discrimination or no, reflects an
objective assessment by the Tribunal of all the facts. That said, amongst the
factors to be considered are the applicant's subjective perception of that
which is the subject of complaint and the understanding, motive and intention
of the alleged discriminator. Thus, the act complained of may be so obviously
detrimental, that is, disadvantageous (see Insitu, op. cit.) to the applicant
as a woman by intimidating her or undermining her dignity at work, that the
lack of any contemporaneous complaint by her is of little or no significance.
By contrast she may complain of one or more matters which if taken individually
may not objectively signify much, if anything, in
terms of detriment. Then a contemporaneous indication of sensitivity on her
part becomes obviously material as does the evidence of the alleged
discriminator as to his perception. That which in isolation may not amount to
discriminatory detriment may become such if persisted in notwithstanding
objection, vocal or apparent. The passage cited from the judgment of the U.S.,
Federal Appeal Court is germane. By contrast the facts may simply disclose hypersensitivity
on the part of the applicant to conduct which was reasonably not perceived by
the alleged discriminator as being to her detriment - no finding of
discrimination can then follow.
(4) In making its
judgment a Tribunal should not lose sight of the significance in this context
of the sex of not just the complainant but also that of the alleged
discriminator. Sexual badinage of a heterosexual male by another such cannot be
completely equated with like badinage by him of a woman. Prima facie the
treatment is not equal: in the latter circumstance it is the sex of the alleged
discriminator that potentially adds a material element absent as between two
heterosexual men.
(5) Throughout the
Tribunal should remain conscious of the burden and standard of proof. That said, the notion that discrimination may well be covert and is
not readily admitted is as applicable in the content of sex as in the context
of race. The passage cited from King v Great Britain -
China Centre, op. cit., consistently proves authoritative guidance on these
aspects.
13. Had the
Tribunal so directed itself as to the law would it nonetheless have dismissed
the complaint made pursuant to the Sexual Discrimination Act 1975? We are
confident that the answer is 'no'.
14. Thus:
a. Had the Tribunal found all the facts before making a
judgment, discrimination or no, it could not have avoided noting that with the
exception of her first allegation (that of an alleged incident assault on her
by Mr. Huss in February 1996) every finding had involved preferring her
contention and rejecting Mr. Huss's denial. The fact that Mr. Huss had been so
consistently and wrongly 'in denial' about the incidents complained of was a
factor obscured to the Tribunal by its approach to the case but which was highly
germane to the weight of his professed perception that Mrs. Driskel
contemporaneously regarded all that she later complained of as acceptable
sexual banter.
b. We turn to the
crucial incident of the 10th July 1996. In our judgment had the Tribunal correctly
directed itself as to the law it would first, have sought to put the incident
in context, that is, as the latest in a line of incidents with "its
predecessors". Second, it would readily have found that that which was
complained of amounted prima facie to discrimination of a high order. She was
in the unenviable position of having to seek promotion by way of a one to one
interview with a man for whom she had an antipathy. In such circumstances she
was in receipt of remarks that in an appalling fashion sought to exploit the
situation by reference to the sex of, respectively, interviewee and
interviewer. As in Insitu Cleaning, op. cit., that which was complained of was
objectively prima facie discriminatory and it would need some exceptional
findings to negate that inference by reference to the respective perceptions of
Mrs. Driskel and Mr. Huss. As it was, the Tribunal was heavily influenced by,
Mrs. Driskel's failure to make an immediate complaint without reminding itself
that any instinct to complain must perforce be inhibited by the fact that she
wanted the promotion that would come from the approval of Mr. Huss - and that
she did in fact complain on the day following when she perceived that she had
no chance of promotion. Further and in any event, given the nature of the
remarks how significant was any failure to complain? Turning to Mr. Huss, the
Tribunal's finding in the already cited paragraph 15 (xii) that the remark was
flippant and was not meant to be taken seriously effectively misses the point.
It is irrelevant that he never expected her to turn up for the interview in
sexually provocative dress - what is relevant is that by this remark (flippant
or not) he was undermining her dignity as a woman when, as a heterosexual, he
would never similarly have treated a man. Again, the Tribunal seriously
misdirected itself in putting any weight on Mr. Huss's sexual vulgarity towards
male employees for the reasons already set out in this judgment, that is, that
being heterosexual that which he said was to men was vulgar without being
intimidatory.
15. We
allow so much of the appeal as related to the dismissal of Mrs. Driskel's
complaint of sexual discrimination made against Peninsula and Mr. Huss. What
follows? We are unwilling to remit this matter for a fresh hearing given the
presently available material and given that which would be involved in terms of
time, cost and expediency in re-litigating events of 1996 in 2000. We therefore
hold the complaint to be proved so afar as it relates
to the discrimination of the 10th July 1996. If the parties cannot agree
compensation for such, the case will have to be remitted to the Tribunal
(hopefully with the same constitution) for an assessment. We dismiss so much of
the appeal as lies against the finding in favour of Mr. Sutcliffe.
Unfair
Dismissal and Victimisation
16. Mr. Duggan further submits that the
Tribunal's rejection of Mrs. Driskel's complaint of unfair dismissal similarly
reflected an error of law, as is the associated dismissal of her complaint of
sexual victimisation. His essential point is that once there is a finding of
sexual discrimination in her favour, with Mr. Huss identified as the
discriminator, there is a premise for upholding her complaints, which premise
was denied to the Tribunal given its dismissal of the sexual discrimination
complaint. Thus far we have not burdened this already long judgment with a full
exposition of so much of the Extended Reasons as dealt with Mrs. Driskel's
further case and the disposal of it - and in the event we think that we can
conscientiously avoid such and still deal properly with this second leg of the
appeal. Suffice it to note that the Tribunal made a very full factual
investigation of the events flowing from Mrs. Driskel's first complaint of July
1996 to her dismissal on the 21st October 1996 and thence onward to the adverse
conclusion of her appeal against dismissal to Mr. Done. We note further the
subsequent and parallel discussion of this history in paragraph 15 such as
serves clearly to show the reasoning of the Tribunal. Central to the decision
was its finding that by the 21st October 1996 the Respondents had by way of Mr.
Sutcliffe's enquiry made a genuine investigation into Mrs. Driskel's complaint
and one upon which they as employers were entitled to rely. Similarly crucial
were further findings. Such were that the Respondents had genuinely tried to
accommodate Mrs. Driskel with acceptable employment but had found themselves
manoeuvred by her into an unacceptable impasse: if they were to accommodate her
they had to dismiss Mr. Huss, and vice versa. It was in the light of those
findings coupled with a finding that Mr. Sutcliffe had "genuinely sought
to persuade both parties to moderate their position" that moved the
Tribunal to find:
"(xxxii)
In the circumstances, Mr. Sutcliffe acted within the band of reasonable
responses of a reasonable employer when he gave notice to the applicant on 10th
October 1996 that her employment would be terminated if she did not agree to
return to the Advice Line Department whilst Mr. Huss remained as manager, and
the Tribunal accepted that the reason for this step fell within the category of
"some other substantial reason" within the meaning of Section
98(1)(b) of the Employment Rights Act 1996.
(xxxiii)
It is central to the fairness of the procedure adopted by Peninsula that this
was not a dismissal based on the applicant's conduct, and did not fall within
the written disciplinary procedure. The Tribunal accepted that it was clear to
Mr. Sutcliffe (as it was to the Tribunal) that when he finally confirmed the
dismissal by letter dated 17 October 1996, no purpose would have been served by
arranging any further meeting with the applicant because no realistic option
short of dismissal existed which she would have been prepared to consider.
(xxxiv)
We therefore satisfied that (by reason of its own peculiar facts) this was one
of those rare cases in which the employer could justify the dismissal of the
applicant without the necessity for a formal meeting or hearing before the
decision was taken.
(xxxv)
It follows from the above that the dismissal of the applicant was a fair
dismissal in the circumstances of this case, and that Mr. Sutcliffe (and
Peninsula) acted reasonably in taking the decision to dismiss and in the manner
in which the dismissal was effected,"
17. We have
examined this fact finding and reasoning with care, in particular seeking to
assess whether our contrary assessment of the significance of Mr. Huss's
behaviour on the 10th July serves to undermine the Tribunal's approach. In the
event we cannot fault the latter, whether on its premises, or on our own. Let
it be supposed that the Tribunal had found sexual discrimination that cannot
mean that the position of Mr. Huss was so weakened that Mrs. Driskel's demands
would not still have posed a impasse soluble only by
dismissal of one or other. We do not think that this part of the Extended
Reasons reflected any error of law and we think that the Tribunal was entitled
to regard the dismissal as fair and untainted by victimisation.
Conclusion
18. So much of the appeal as relates to
sexual discrimination by Peninsula and Mr. Huss is allowed with disposal as
already set out. The balance of the appeal is dismissed.