Appeal No. EAT/350/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 29 April 1994

	Before

	THE HONOURABLE MR JUSTICE MORISON

	MR K M HACK JP

	MS D WARWICK

MS N ROSSE	APPELLANT

PARAMOUNT HOUSE GROUP LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MISS M O'ROURKE
(OF COUNSEL)
Messrs Turberville              Woodbridge
122 High Street
Uxbridge UB8 1JT

For the Respondents	MR D N BRADY
(CONSULTANT)
Mr S E McPherson
5 Walpole Court
The Green
Ealing
London W5 5DA

	MR JUSTICE MORISON:	This was a complaint under the Sex Discrimination Act 1975 as amended, which was heard by an Industrial Tribunal held at London South and unanimously dismissed.  The complainant, whom we shall hereafter refer to as the Appellant, appeals from that decision.  The facts as found by the Industrial Tribunal so far as relevant to the appeal may be shortly stated.  

	The Appellant was employed as from the 16 September 1990 by the Respondents (whom we shall call the employers) as a consultant, to market and introduce business to Merchant Investors Assurance Company Limited (whom we shall call Merchant) in respect of Merchants financial products.  In other words, the Appellant was a tied Agent dealing only with Merchant products.  For her work she was paid solely by commission.  

	There were regular monthly meetings organised by Merchant for the consultants which were usually attended by two to three hundred of them.  At these meetings "new faces" were introduced to the other consultants.  They were asked to come up on the stage.  The Appellant was so introduced at the July meeting and attended the August and September meetings and makes no complaint about them.  However, at the October meeting, having properly introduced the new faces who were male, a director of Merchants, a Mr Harvey, then paused and said:

"We have a lovely piece of snatch coming up now"

and called out the new female consultant.  As she walked onto the stage there was some chanting about a "lovely piece of snatch" from two, apparently, inadequate people sitting in the front row.  The Appellant tried to leave, being insulted by this behaviour but was restrained from doing so by her line manager.  She spoke to the Managing Director of the Employers and he agreed that Mr Harvey's behaviour was insulting.  He said he would sort it out before the next meeting but that if the same thing happened at the next meeting she was to walk out of it and the Managing Director would then say that none of the employers' consultants need attend future meetings.

	Clearly the Managing Director spoke to Mr Harvey because at the meeting in November he used the same expression repeatedly, having said that he had received a complaint and making the comment that no-one was going to stop him from saying it.  Whereupon, the Appellant and another female consultant left the meeting and made an appointment to see a Solicitor.  The Appellant spoke again to her Managing Director who told her that she had to attend future meetings; that she was being over-sensitive and that she should telephone Mr Harvey and arrange a meeting with him to sort the problem out.  Courageously, perhaps, she did speak to Mr Harvey over the telephone who was, and I use my own words, apparently boorish and rude on the telephone, and he told her it was for her Managing Director to deal with any problems that she might have and that she had no right to be getting in touch with him.

	She then spoke to the Managing Director of Merchant, who said he would speak to Mr Harvey and arrange a meeting, but this Managing Director, that is the Managing Director of Merchant left the Company before any action was taken.  Her Managing Director, that is the Managing Director of the Employers, having discovered that she had not attended the monthly meeting in December, told her that she should go to the next one and stand up and object if Mr Harvey continued to use unacceptable language when referring to new female consultants.  As the Tribunal comment, "not surprisingly" she refused.  Again she asked her Managing Director for his support, as he was the one who was sending her to the meetings.  She missed the next meeting in January and remained behind with the administrative staff.  We deduce from the Tribunal's decision that in order to pre-empt that from happening again, the Managing Director took the administrative staff with him to the next meeting in February and locked the office so that the Appellant could not stay there.  The day following that meeting, on February 19 1991, she was dismissed, having been told by a colleague in advance of her meeting with the Managing Director that that was what he was going to do.

	On the basis of those facts the Tribunal concluded as follows.  Firstly, the Appellant was dismissed.  The Employers' case that she had resigned was rejected by the Industrial Tribunal who expressly found that wherever there was a conflict of evidence between the Appellant's and the Managing Director's they preferred that of the Appellant. Secondly, an important part of the reason for her dismissal was her refusal to attend the monthly meetings.  Thirdly, the Appellant refused to attend the meetings because she found the expressions used by Mr Harvey to be insulting and offensive, and that she was reasonable in that view.  As the Tribunal put it: such behaviour would be regarded as in bad taste by right-thinking people of either sex.  Fourthly, had she had sufficient length of service it is entirely likely that her dismissal would have been adjudged unfair.  Fifthly, however, her complaint was not of unfair dismissal but of direct sex discrimination and to succeed on that ground:

"She would have to show that either by requiring her to attend the monthly meetings or by dismissing her for refusing to do so, the employers treated her less favourably than it treats or would treat a man."

Finally, the Tribunal had no direct evidence that a male employee had ever refused to attend the meetings, nor had they any evidence from which they could infer that, had a male done so, he would have been treated differently from the Appellant.

	The grounds of appeal in this case so far as we can define them are that the Tribunal misdirected itself in law in that it had (a) treated the requirement to attend the meeting as a case of indirect discrimination.  Secondly, they wrongly understood the significance of the fact that men had never refused to attend the meetings: that, so it is said, supported the complaint rather than diminished it because it is consistent with the fact that only women were treated objectionably at the meetings.  Thirdly, the Tribunal should not have been concerned so much with the requirement to attend the meeting as with the effect that attending the meeting would have on the employee if she attended; in other words they should have concentrated on the effect which attendance would have had on her; thus, the comparison was not with a man required to attend the meeting, but with a man who had attended the meeting.  Fourthly, the Tribunal should have asked itself whether the employer was "adopting" the treatment at the meeting as its own and was thus accepting responsibility for knowingly exposing female employees to such behaviour, namely to less favourable treatment on the grounds of sex.  Fifthly, the Tribunal should have considered whether the treatment complained of (attendance at meetings) amounted to sexual harassment such that it was inappropriate to look for a male comparator Strathclyde Regional Council v Porcelli [1986] ICR 564 (Ct Session) and Wadman v Carpenter Farrer Partnership [1993] IRLR 374 (EAT).  Sixthly, by requiring her to attend meetings at which she would be subjected to insulting behaviour she was being treated less favourable than a male employee; or thereby was being subjected to some other detriment on the grounds of her sex.

	The complaint made by the Appellant, who represented herself in the Industrial Tribunal, is to be found in her IT1 in answer to the question 10.  Having recited the facts, what she was complaining of was:

"I believe that the Respondent discriminated against me in two ways.  Firstly by requiring me to attend these monthly meetings knowing that the meetings were being conducted in a way that I found degrading and offensive to all the female delegates present.  Secondly by dismissing me when I refused to attend the meetings.  I believe that the Respondent would not have treated a male employee in an equivalent position in the same manner either by requiring him to attend the meetings or by dismissing him without prior warning or prior notice for not attending the meetings."

	The Tribunal's decision was entered in the Register on the 9 March 1992 and it has been listed for hearing before us today, that is the 29 April 1994, over two years over the original Tribunal decision which itself was some considerable period of time, namely about a year, after the events of which the Applicant made a complaint.  Notice of hearing was given to the parties about two months before this hearing in February, but for reasons which do not need to be gone into now, unfortunately, the skeleton argument on behalf of the Appellant did not find its way into the hands of the defendants, who were at this stage acting on their own behalf until, I think, three days ago.

	Accordingly, when the matter was listed and came on for hearing before us this morning, Mr Brady, who is representing the company, not having any prior legal experience but not to be criticised for that, asked if this case could be adjourned.  We indicated, tentatively, during the course of the discussions about an adjournment, that we thought in any event there was room for criticism of the Industrial Tribunal's decision.  Accordingly, very sensibly, the parties have agreed between themselves that, subject to our approval, the outcome of this appeal should be that the appeal should be allowed and the case simply remitted to a new Tribunal to hear and determine her original complaint as soon as is reasonably practicable.  

	The purpose of giving this short judgement has been to enable the new Tribunal to concentrate on the matters in issue so as to avoid the error which tentatively we believe the original Tribunal had fallen into.  In particular, it seems to us that it is not clear that the original Tribunal directed itself as to the effect of Section 6(2)(b) of the 1975 Act as amended.  In her IT1, as I have indicated, the Appellant complained that the requirement to attend the meeting was itself unlawful.  Although not spelt out, the case she was making must have been that by so requiring her they were subjecting her to a detriment on the grounds of her sex.  

	It seems to us, with great respect to the Industrial Tribunal, that at no stage did they adequately address their minds to that issue.  Secondly, the Industrial Tribunal at paragraph 16 of their decision wrongly, in our judgement, suggested that they needed evidence as to what would have happened to a man.  In our judgement no such evidence is to be expected in the majority of cases of alleged unlawful sexual discrimination.  If a comparison with a male is required it is, we think, likely to be with a hypothetical male, and is largely a matter for inference and argument at the Industrial Tribunal when they come to review all the facts of the case.  In relation to dismissal the comparison is not with a man who did not attend the meetings as such, but rather in our view, with a man who had a reasonable excuse for not attending; assuming that the Tribunal was satisfied that the employee herself, the Appellant, was reasonably entitled not to attend any further meetings.

	Whilst sexual harassment of a man is not impossible, a realistic comparison, we think, would be with a man, who for example, was on holiday, or was sick, or had some other legitimate reason for not attending a meeting.  If the requirement to attend the meeting was effectively an act of sexual harassment, that is, knowingly subjecting her to improper conduct, the Appellant would then contend that no comparator was needed.  The argument that she would make is that because sexual harassment is a gender based act of discrimination, the question of a comparator does not arise.  It seems to us that if that argument is to be maintained before a new Tribunal it does deserve to be considered by the Tribunal and dealt with.  We are not presently minded to reach any conclusion at this stage or to give any guidance on it to the Industrial Tribunal.  

	Accordingly, we would have taken the view, subject of course to hearing full argument, that the course which the parties had taken by agreement between themselves was entirely the right course to take and we hope that when the matter comes before a new Tribunal, with possibly some of the guidance that has been given by this Court, they will be enabled to arrive at a decision which does not give rise to any grounds of appeal on either side.  We wish to make it absolutely clear that it is for the new Tribunal to decide all the matters for themselves on questions of fact.  It will be a new hearing and we have not sought to give an indication as to how we think they ought to have decided the case on the merits.